2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2015

Ka Paek v. Attorney General United States

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 14-3982

KA A. PAEK,

Petitioner 

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

 Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No.: A042-564-755)

Immigration Judge: Honorable Andrew R. Arthur

Argued on June 1, 2015

(Opinion filed: July 20, 2015)
2

Before: RENDELL, HARDIMAN, and VANASKIE, Circuit 

Judges

Ben Winograd, Esquire (ARGUED)

Immigrant & Refugee Appellate Center, LLC

3602 Forest Drive

Alexandria, VA 22302

Daniel B. Conklin

The Shagin Law Group

Inns of St. Judge

120 South Street

Harrisburg, PA 17101

Counsel for Petitioner Ka A. Paek

Joyce R. Branda, Esquire

Ernesto H. Molina, Jr., Esquire

Bernard A. Joseph, Esquire (ARGUED)

Office of Immigration Litigation

United States Department of Justice

Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent United States Attorney 

General
3

O P I N I O N

RENDELL, Circuit Judge:

We address the proper interpretation of the 

Immigration and Nationality Act (“INA”)—specifically, 

whether the conditional nature of an alien’s lawful permanent 

resident status affects his eligibility for a waiver of 

inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h). 

Under § 212(h)’s aggravated felony bar, “an alien who has 

previously been admitted to the United States as an alien 

lawfully admitted for permanent residence,” who is later 

convicted of an aggravated felony, is statutorily ineligible for 

a waiver of inadmissibility. Id. We must decide whether an 

alien admitted as a lawful permanent resident on a conditional 

basis (“Conditional LPR”) qualifies as “an alien lawfully 

admitted for permanent residence” for purposes of § 212(h). 
4

The Board of Immigration Appeals (“BIA”) answered that 

question in the affirmative and, therefore, held that Petitioner 

Ka A. Paek was statutorily ineligible for a § 212(h) waiver 

because he had committed an aggravated felony after his 

admission as a Conditional LPR. We agree and will deny the 

petition for review.

I. BACKGROUND

Paek is a native and citizen of South Korea. On June 

5, 1991, Paek was admitted to the United States at a port of 

entry as a Conditional LPR. The basis for Paek’s admission 

was his mother’s marriage to a U.S. citizen and member of 

the U.S. military, thereby qualifying Paek as an “alien son.” 

See INA § 216(h)(2), 8 U.S.C. § 1186a(h)(2) (“The term 

‘alien son or daughter’ means an alien who obtains the status 

of an alien lawfully admitted for permanent residence 

(whether on a conditional basis or otherwise) by virtue of 

being the son or daughter of an individual through a 
5

qualifying marriage.”). Pursuant to § 216(a)(1), an “alien 

son” “shall be considered, at the time of obtaining the status 

of an alien lawfully admitted for permanent residence, to have 

obtained such status on a conditional basis subject to the 

provisions of this section.” INA § 216(a)(1), 8 U.S.C. 

§ 1186a(a)(1).

On July 5, 2000, after an appropriate petition was 

filed, Paek’s immigration status was adjusted. See INA 

§ 216(c)(1), 8 U.S.C. § 1186a(c)(1) (describing the 

requirements “for the conditional basis . . . for an alien spouse 

or an alien son or daughter to be removed”). His status was 

adjusted to that of a non-conditional lawful permanent 

resident (“Non-conditional LPR”).

In 2005 and 2006, Paek was convicted of receiving 

stolen property, theft, and, relevant here, first degree robbery 
6

in violation of Del. Code Ann. tit. 11, § 832(a)(2).1 After 

removal proceedings were initiated against him, Paek applied 

for adjustment of status on the basis of his own marriage to a 

U.S. citizen. He also sought a waiver of inadmissibility 

pursuant to § 212(h).

The Immigration Judge (“IJ”) determined that, inter 

alia, Paek was statutorily ineligible for a § 212(h) waiver 

pursuant to the aggravated felony bar: 

No waiver shall be granted under this 

subsection in the case of an alien who has 

previously been admitted to the United States as 

an alien lawfully admitted for permanent 

residence if . . . since the date of such admission 

 

1

“A person is guilty of robbery in the first degree when the 

person commits the crime of robbery in the second degree 

and when, in the course of the commission of the crime or of 

immediate flight therefrom, the person or another participant 

in the crime: . . . (2) Displays what appears to be a deadly 

weapon or represents by word or conduct that the person is in 

possession or control of a deadly weapon . . . .” Del. Code 

Ann. tit. 11, § 832(a). On appeal, Paek does not dispute that 

this offense constitutes an aggravated felony; therefore, we do 

not address that issue.
7

the alien has been convicted of an aggravated 

felony . . . .

INA § 212(h), 8 U.S.C. § 1182(h). The IJ determined that 

Paek’s conviction for first degree robbery was an aggravated 

felony pursuant to INA § 101(a)(43)(F), 8 U.S.C. 

§ 1101(a)(43)(F), and that Paek was convicted of this 

aggravated felony after the date he was admitted as a 

Conditional LPR (i.e., after June 5, 1991). Paek attempted to 

circumvent the aggravated felony bar by arguing that the bar 

does not apply to persons initially admitted as Conditional 

LPRs, but the IJ rejected this argument.

Paek appealed to the BIA. “The only issue on appeal 

[was] whether the aggravated felony bar applies to an alien 

who was admitted at a port of entry as a conditional 

permanent resident under section 216(a) of the [INA].” (App. 

5.) In a published decision, the BIA determined that the bar 

did apply. The BIA reached its decision based on the plain 
8

language of § 216, but it also relied on a supporting 

regulation, 8 C.F.R. § 216.1,2and a decision of this Court, 

Gallimore v. Attorney General, 619 F.3d 216 (3d Cir. 2010). 

The BIA’s analysis led it to conclude that Paek is subject to 

the aggravated felony bar and is statutorily ineligible for a 

§ 212(h) waiver. Paek petitioned for review.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over Paek’s question of law. See 

INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); see also 

Guzman v. Att’y Gen., 770 F.3d 1077, 1082 (3d Cir. 2014)

(“Our review is limited to constitutional claims and questions 

of law.”). “We review legal questions de novo, with 

 

2

“A conditional permanent resident is an alien who has been 

lawfully admitted for permanent residence within the 

meaning of section 101(a)(20) of the Act, except that a 

conditional permanent resident is also subject to the 

conditions and responsibilities set forth in section 216 or 

216A of the Act, whichever is applicable, and part 216 of this 

chapter. . . . All references within this chapter to lawful 

permanent residents apply equally to conditional permanent 

residents, unless otherwise specified.” 8 C.F.R. § 216.1.
9

appropriate deference for the BIA’s reasonable interpretations 

of statutes it is charged with administering.” De Leon-Ochoa 

v. Att’y Gen., 622 F.3d 341, 348 (3d Cir. 2010). “Under the 

familiar two-step Chevron inquiry, first, if the statute is clear 

we must give effect to Congress’ unambiguous intent, and, 

second, if the statute is silent or ambiguous with respect to a 

specific issue, we defer to an implementing agency’s 

reasonable interpretation of that statute.” Id. (citing Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 

842-43 (1984)). 

III. DISCUSSION

Paek urges that, because he was initially admitted as a 

Conditional LPR, he has not “previously been admitted to the 

United States as an alien lawfully admitted for permanent 

residence.” See INA § 212(h), 8 U.S.C. § 1182(h). He 

reasons that the conditional nature of his lawful permanent 

resident status meant that he was not “permanent” when 
10

admitted, as required by the statutory definition of “lawfully 

admitted for permanent residence.” See INA § 101(a)(20), 8 

U.S.C. § 1101(a)(20) (“The term ‘lawfully admitted for 

permanent residence’ means the status of having been 

lawfully accorded the privilege of residing permanently in the 

United States as an immigrant in accordance with the 

immigration laws, such status not having changed.”). 

Alternatively, he urges that, if we find the relevant INA 

sections ambiguous, we should remand to the BIA for further 

consideration.

However, we conclude that the plain language of the 

INA indicates that an alien admitted as a Conditional LPR 

constitutes “an alien who has previously been admitted to the 

United States as an alien lawfully admitted for permanent 

residence,” INA § 212(h), 8 U.S.C. § 1182(h), and, therefore, 

that the BIA correctly determined that the aggravated felony 

bar renders Paek statutorily ineligible for a § 212(h) waiver. 
11

“As with any question of statutory interpretation, our 

analysis begins with the plain language of the statute.” 

Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). “[I]n 

looking for the meaning of this statutory language, we must 

look to the statutory context in which that language is used 

and the broader context of the statute as a whole as well as the 

language itself.” N.J. Payphone Ass’n v. Town of W. N.Y., 

299 F.3d 235, 245 (3d Cir. 2002). “It is true that, in the face 

of statutory ambiguity or uncertainty, we may ‘have recourse 

to the legislative history of the measure and the statements by 

those in charge of it during its consideration by the 

Congress,’” Estate of Arrington v. Michael, 738 F.3d 599, 

605 (3d Cir. 2013) (quoting United States v. Great N. Ry., 

287 U.S. 144, 154-55 (1932)); however, “we do not resort to 

legislative history to cloud a statutory text that is clear.” 

Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994). Here, 

the statutory text is clear, not ambiguous.
12

The aggravated felony bar provides that a § 212(h) 

waiver is not available to “an alien who has previously been 

admitted to the United States as an alien lawfully admitted for 

permanent residence if . . . since the date of such admission 

the alien has been convicted of an aggravated felony . . . .” 

INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added). We 

have already addressed the proper date on which a 

Conditional LPR, who had the conditional basis of his status 

removed (i.e., who became a Non-conditional LPR), was 

admitted to the United States as an alien lawfully admitted for 

permanent residence. Gallimore, 619 F.3d at 226-27.3 In 

Gallimore, the Attorney General argued that the alien, Earl 

Gallimore, was not “lawfully admitted for permanent 

residence” until the date on which the conditional basis of his 

 

3 Gallimore did not turn on the aggravated felony bar; instead, 

the issue was the alien’s eligibility for a discretionary waiver 

of removal under INA § 212(c), 8 U.S.C. § 1182(c), which 

has since been repealed. 619 F.3d at 223.
13

immigration status was removed, as opposed to the date on 

which he became a Conditional LPR. Id. at 226. We 

remanded because “the BIA simply overlooked the fact” that 

the date on which Gallimore had become a Conditional LPR 

may have been the relevant date. Id. However, in strong and 

persuasive dicta, we noted that the provisions in § 216 

“unambiguously accord conditional LPRs the privilege of 

residing ‘permanently’ in the United States, notwithstanding 

the literal meaning of the word ‘permanently’ and the 

conditional nature of the status.” Id. at 228. Furthermore, we 

proclaimed that “[t]he INA thus equates conditional LPRs 

with ‘full-fledged’ LPRs, except to the extent—but only to 

the extent—that [§ 216] prescribes additional obligations.” 

Id. at 229. While we did opine on this issue, the parties 

before us agree—as do we—that this was dicta and not 

controlling on remand in that case.4

 

4 Paek emphasizes another case, Hanif v. Attorney General, 
14

Here, the relevant phrase in the aggravated felony bar 

is defined by statute: “The term ‘lawfully admitted for 

permanent residence’ means the status of having been 

lawfully accorded the privilege of residing permanently in the 

United States as an immigrant in accordance with the 

immigration laws, such status not having changed.” INA 

§ 101(a)(20), 8 U.S.C. § 1101(a)(20). Of course, “[w]hen a 

statute includes an explicit definition, we must follow that 

definition, even if it varies from that term’s ordinary 

meaning.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000). 

The thrust of Paek’s argument is that this definition is not 

consistent with Conditional LPR status because, by its very 

 

694 F.3d 479 (3d Cir. 2012), but that case is not relevant to 

our holding here. In Hanif, we determined that, according to 

the aggravated felony bar’s “plain meaning,” the bar did not 

apply to an alien who “originally entered the country 

illegally,” as an illegal alien has not been “admitted” as “an 

alien lawfully admitted for permanent residence.” Id. at 484.
15

nature, Conditional LPR status is not “permanent” and indeed 

changes.

However, as we did in Gallimore, we must look to the 

INA as a whole; in particular, we must consider § 216 and 

§ 216A of the INA, which explain the concept of Conditional 

LPR status. See Prestol Espinal v. Att’y Gen., 653 F.3d 213, 

217 (3d Cir. 2011) (“The Supreme Court has instructed that 

‘we must not be guided by a single sentence or member of a 

sentence, but look to the provisions of the whole law, and to 

its object and policy.’” (quoting United States v. Heirs of 

Boisdore, 49 U.S. 113, 122 (1850))). When we consider 

§ 216 and § 216A, we can only conclude that Paek was 

“lawfully admitted for permanent residence,” notwithstanding 

the conditional nature of his LPR status. 

Perhaps most tellingly, § 216 states that “an alien son 

or daughter . . . shall be considered, at the time of obtaining 

the status of an alien lawfully admitted for permanent 
16

residence, to have obtained such status on a conditional basis 

subject to the provisions of this section.” INA § 216(a)(1), 8 

U.S.C. § 1186a(a)(1) (emphasis added); see also INA § 216A, 

8 U.S.C. § 1186b(a)(1) (“[A]n alien entrepreneur . . . , alien 

spouse, and alien child . . . shall be considered, at the time of 

obtaining the status of an alien lawfully admitted for 

permanent residence, to have obtained such status on a 

conditional basis . . . .”). Clearly, Congress contemplated that 

a Conditional LPR “obtain[s] the status of an alien lawfully 

admitted for permanent residence,” with the only caveat being 

that said status is obtained “on a conditional basis.” INA 

§ 216(a)(1), 8 U.S.C. § 1186a(a)(1). 

Lest there be any doubt, § 216 and § 216A refer to “the 

second anniversary of the alien’s obtaining the status of 

lawful admission for permanent residence” as being 

synonymous with the second anniversary of the alien’s 

admission as a Conditional LPR. See, e.g., INA § 216(b)(1), 
17

(c)(2)(A), (c)(3)(B), (d)(2)(A), 8 U.S.C. § 1186a(b)(1), 

(c)(2)(A), (c)(3)(B), (d)(2)(A); INA § 216A(b)(1), (c)(2)(A), 

(c)(3)(B), (d)(2)(A), 8 U.S.C. § 1186b(b)(1), (c)(2)(A), 

(c)(3)(B), (d)(2)(A). For instance, § 216 provides:

In the case of an alien with permanent resident 

status on a conditional basis under subsection 

(a), if—

(i) no petition is filed with respect to the 

alien in accordance with the provisions of 

paragraph (1)(A), or

(ii) unless there is good cause shown, the 

alien spouse and petitioning spouse fail to 

appear at the interview described in 

paragraph (1)(B),

the Secretary of Homeland Security shall 

terminate the permanent resident status of the 

alien as of the second anniversary of the alien’s 

lawful admission for permanent residence.

INA § 216(c)(2)(A), 8 U.S.C. § 1186a(c)(2)(A) (emphases 

added). This provision is clearly applicable only “in the case 

of an alien with permanent resident status on a conditional 

basis,” and it provides that the Secretary of Homeland 

Security “shall terminate the permanent resident status of the 
18

alien as of the second anniversary of the alien’s lawful 

admission for permanent residence.” Id. This means that, if 

no petition to adjust status is filed within two years of an alien 

becoming a Conditional LPR, then the Secretary of Homeland 

Security shall terminate the alien’s “permanent resident 

status” at the conclusion of those two years. Id. Surely, a 

Conditional LPR must have had the status of a “permanent 

resident” for two years in order for such status to be 

terminated; otherwise, this provision makes no sense.

Indeed, the language of § 216 and § 216A repeatedly 

discusses Conditional LPRs having their status of lawful 

admission for permanent residence “terminated.” See, e.g.,

INA § 216(b)(1), 8 U.S.C. § 1186a(b)(1); INA § 216A(b)(1), 

8 U.S.C. § 1186b(b)(1). If a Conditional LPR did not have 

“the status of lawful admission for permanent residence,” 

then the statutes would not speak of Conditional LPRs having 

such status “terminated.” See, e.g., INA § 216(b)(2), 8 U.S.C. 
19

§ 1186a(b)(2) (“Any alien whose permanent resident status is 

terminated under paragraph (1) may request a review of such 

determination in a proceeding to remove the alien.”); INA 

§ 216(c)(2)(A), 8 U.S.C. § 1186a(c)(2)(A) (“[T]he Secretary 

of Homeland Security shall terminate the permanent resident 

status of the alien as of the second anniversary of the alien’s 

lawful admission for permanent residence.”); INA 

§ 216(c)(2)(B), 8 U.S.C. § 1186a(c)(2)(B) (“In any removal 

proceeding with respect to an alien whose permanent resident 

status is terminated . . . .”); INA § 216(c)(3)(C), 8 U.S.C. 

§ 1186a(c)(3)(C) (“[T]he Secretary of Homeland Security . . . 

shall terminate the permanent resident status of an alien 

spouse or an alien son or daughter . . . .”); INA 

§ 216(c)(3)(D), 8 U.S.C. § 1186a(c)(3)(D) (“Any alien whose 

permanent resident status is terminated . . . .”); INA 

§ 216A(c)(2)(A), 8 U.S.C. § 1186b(c)(2)(A) (“[T]he Attorney 
20

General shall terminate the permanent resident status of the 

alien . . . .”). 

Similarly, § 216 and § 216A provide that a Conditional 

LPR becomes a Non-conditional LPR by having “the 

conditional basis of such status removed.” INA 

§ 216(a)(2)(A), 8 U.S.C. § 1186a(a)(2)(A); accord INA 

§ 216A(a)(2)(A), 8 U.S.C. § 1186b(a)(2)(A); see also INA 

§ 216(c)(1), 8 U.S.C. § 1186a(c)(1) (“In order for the 

conditional basis . . . to be removed . . . .”); INA 

§ 216(c)(1)(A), 8 U.S.C. § 1186a(c)(1)(A) (“[T]he alien 

spouse and the petitioning spouse . . . must submit . . . a 

petition which requests the removal of such conditional basis 

. . . .”); INA § 216(c)(3)(B), 8 U.S.C. § 1186a(c)(3)(B) 

(“[T]he Secretary of Homeland Security . . . shall remove the 

conditional basis of the parties effective as of the second 

anniversary of the alien’s obtaining the status of lawful 

admission for permanent residence.”); INA § 216(c)(4), 8 
21

U.S.C. § 1186a(c)(4) (“The Secretary of Homeland Security 

. . . may remove the conditional basis of the permanent 

resident status for an alien . . . .”). That Congress spoke of 

the removal of “the conditional basis of such status” 

demonstrates that a Conditional LPR had already obtained the 

status of “lawful admission for permanent residence.”

Nonetheless, Paek urges that our interpretation of “the 

status of an alien lawfully admitted for permanent residence” 

is undermined by the fact that § 216(e) singles out 

Conditional LPRs and that this provision would be surplusage 

if all Conditional LPRs are necessarily lawfully admitted for 

permanent residence. Section 216(e) states:

For purposes of subchapter III of this chapter, in 

the case of an alien who is in the United States 

as a lawful permanent resident on a conditional 

basis under this section, the alien shall be 

considered to have been admitted as an alien 

lawfully admitted for permanent residence and 

to be in the United States as an alien lawfully 

admitted to the United States for permanent 

residence.
22

INA § 216(e), 8 U.S.C. § 1186a(e). Subchapter III relates to 

naturalization, and it does not include § 212(h), which is in 

subchapter II. Paek argues that, if a Conditional LPR is “an 

alien lawfully admitted for permanent residence,” Congress 

would not need to state that Conditional LPRs are 

“considered” to be lawfully admitted for permanent 

residence, nor would it have limited § 216(e) to apply only to 

“subchapter III.”

The canon against surplusage counsels us to “give[] 

effect to every word” of a statute and to avoid rendering a 

statute “superfluous,” whether in whole or in part. Marx v. 

Gen. Revenue Corp., 133 S. Ct. 1166, 1177 (2013). But we 

read § 216(e) not as limiting the situation in which 

Conditional LPRs are the same as Non-conditional LPRs, but 

rather as clarifying that, for purposes of naturalization, it does 

not matter whether an alien is a Conditional LPR or a Non-
23

conditional LPR: either way, the naturalization provisions 

apply. We believe that Congress desired to clarify that, for 

naturalization purposes, a Conditional LPR does not need to 

wait for the removal of the conditional basis of his status 

before seeking naturalization, and does indeed have the status 

of “an alien lawfully admitted for permanent residence.” In 

light of all the other passages in § 216 and § 216A cited 

above, we do not believe that this instance of purported 

surplusage creates any ambiguity as to Congress’s intent for 

the aggravated felony bar.5

 

5 We also reject Paek’s invocation of the rule of lenity. See

Salinas v. United States, 522 U.S. 52, 66 (1997) (“The rule 

[of lenity] does not apply when a statute is unambiguous or 

when invoked to engraft an illogical requirement to its text.”). 

Likewise to no avail is Paek’s reliance on the canon that, 

where “Congress includes particular language in one section 

of a statute but omits it in another section of the same Act, it 

is generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.” Russello v. 

United States, 464 U.S. 16, 23 (1983) (quoting United States 

v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). The 

fact that Congress did not repeat the cumbersome phrase 
24

Paek urges that certain legislative history, which refers 

to Conditional LPR as being a “status” or as otherwise being 

different from Non-conditional LPR, indicates that our 

conclusion is incorrect. See, e.g., H.R. Rep. No. 99-906, at 7 

(1986), reprinted in 1986 U.S.C.C.A.N. 5978, 5979 (“Creates 

a two-year ‘conditional’ status for all alien spouses, sons, and 

daughters who become permanent resident aliens . . . .”); id. 

at 9, reprinted in 1986 U.S.C.C.A.N. at 5981 (“By postponing 

the privilege of permanent resident status until two years after 

the alien’s obtaining the status of lawful admission for 

permanent residence, the bill provides a balanced 

approach.”). But, given the clarity and lack of ambiguity in 

the statutory text, Paek’s cited legislative history is 

unavailing. See Ratzlaf, 510 U.S. at 147-48. Regardless, 

 

“whether on a conditional basis or otherwise” as a modifier 

for “lawfully admitted for permanent residence” in every 

instance, as it did in § 216(h)(1) and (h)(2), does not create an 

ambiguity in the statute. 
25

Paek can point to nothing in the legislative history that 

indicates that Congress intended the aggravated felony bar to 

be inapplicable to Conditional LPRs. Whether the legislative 

history refers to Conditional LPR as a separate status or 

otherwise contrasts Conditional LPR from Non-conditional 

LPR status is of no moment. Simply put, for purposes of the 

aggravated felony bar, a Conditional LPR is to be treated the 

same as a Non-conditional LPR.

Given that we find no ambiguity in the statute, we 

decide this case at step one of the Chevron analysis. We do 

not address the issues the parties have raised in connection 

with Chevron’s step two, which involve the amount of 

deference we should afford to the BIA’s published decision in 

this case. However, we remind the BIA that “agencies should 

not move away from their previous rulings without cogent 

explanation.” Cruz v. Att’y Gen., 452 F.3d 240, 250 (3d Cir. 

2006). In two prior unpublished BIA decisions, the BIA held 
26

that the aggravated felony bar does not apply to an alien 

admitted as a Conditional LPR. See, e.g., In re Mata-Rosas, 

No. A076-404-712, at 3 (BIA Apr. 20, 2011) (concluding 

that, because “the respondent was lawfully admitted as a 

conditional lawful permanent resident,” the aggravated felony 

bar is inapplicable); In re Peretz, No. A29-832-294, at 4 (BIA 

May 25, 1999) (“Furthermore, assuming that the respondent 

remained a conditional resident, we do not agree that this 

constitutes the functional equivalent of legal permanent 

residency for purposes of applying for section 212(h) 

relief.”). The BIA’s published decision in Paek’s case 

contradicted these two prior rulings, without acknowledging 

the contradiction. Perhaps our decision in Gallimore is the 

reason for the BIA’s change in position, as the BIA cited 

Gallimore in its decision. If so, it is understandable why the 

BIA mistakenly believed that Gallimore compelled the result. 
27

Regardless, issues concerning the amount of deference 

owed to the BIA’s decision are irrelevant to our determination 

of whether the statutory text is plain and unambiguous. We 

need not decide what level or type of deference we would 

give to the BIA’s decision in Paek’s case because we 

conclude that our inquiry ends at step one of the Chevron 

analysis: the statutory language of the INA unambiguously 

provides that an alien admitted as a Conditional LPR is 

subject to the aggravated felony bar.

IV. CONCLUSION

Accordingly, we will deny the petition for review.