crimmigration.com

The intersection of criminal law and immigration law

  • Home
  • About César
  • Articles
  • Books
  • Book Tour
  • Talks & Media

2nd Circuit: Time in USA while asylum and adjustment applications pending does not count toward continuously lawful residence required for § 212(h) waiver

The Second Circuit held last week that the time that a person spends in the USA while an asylum application or adjustment of status application is pending does not count toward the 7 years of lawful continuous residence required to be eligible for a § 212(h) waiver of inadmissibility. New York Penal §§ 110.00, 170.25.

Since this case turned on the 7-year lawful residency requirement, the timeline of events is merits stating. Rotimi entered the USA on a B-2 visa on June 7, 1995, with permission to stay for up to 6 months. Rotimi, No. 06-0202-ag, slip op. at 3. In September 1995 he applied for asylum. Rotimi v. Holder, No. 06-0202-ag, slip op. at 3. On May 17, 1996, presumably after denying Rotimi’s asylum application, the asylum office referred Rotimi’s case to an IJ for deportation proceedings. Rotimi v. Holder, No. 06-0202-ag, slip op. at 3. In July 1996, while proceedings were ongoing before the IJ, Rotimi married a United States citizen who filed an immediate relative visa petition on his behalf. Rotimi v. Holder, No. 06-0202-ag, slip op. at 3. Rotimi filed an application for adjustment of status. Rotimi v. Holder, No. 06-0202-ag, slip op. at 4. After Rotimi’s visa petition was approved, the former INS terminated deportation proceedings to allow his adjustment application to be adjudicated. Rotimi v. Holder, No. 06-0202-ag, slip op. at 4-5. The INS granted his adjustment application and Rotimi became an LPR on August 13, 1997.

Then, on May 22, 2002, in the turn of events that led to the Second Circuit’s decision, Rotimi was convicted of attempted criminal possession of a forged instrument in New York. Six months later, in November 2002, Rotimi left the USA briefly and, upon return, he came to the attention of the government. Rotimi v. Holder, No. 06-0202-ag, slip op. at 4. The government claimed that Rotimi’s conviction constituted a crime involving moral turpitude, thus rendering him inadmissible. Rotimi v. Holder, No. 06-0202-ag, slip op. at 4. Rotimi conceded removability and sought to apply for a waiver under INA § 212(h). Section 212(h) waives several criminal grounds of inadmissibility, including the CIMT ground.

To be eligible for the § 212(h) waiver, however, an applicant must have “lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.” Rotimi argued that he had lawfully resided continuously in this country since June 7, 1995, the date he arrived on a B-2 visa, because he had applied for asylum, then adjustment, then become an LPR since then. The IJ and the BIA disagreed.

In a precedential decision (issued after an earlier remand from the Second Circuit), Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008), the BIA provided its interpretation of § 212(h)’s lawful continuous residence requirement:

First, the BIA examined the legislative history of § 212(h), which provides in relevantpart that the “managers intend that the provisions governing continuous residence set forth inINA section 240A as enacted by this legislation shall be applied as well for purposes of waiversunder INA section 212(h).” H.R. Rep. No. 104-828, at 228 (1996) (Conf. Rep.). The BIA statedthat this history, “while not extensive, lends some support to the proposition that an alien’sapplication for lawful status or other benefit that might not entail a ‘status’ must actually beapproved before his or her residence in this country will be considered lawful for section 212(h)purposes.” In re Rotimi, 24 I. & N. Dec. at 572.

Second, the BIA looked to INA § 101(a)(20), which defines the phrase “lawfully admittedfor permanent residence” to mean “the status of having been lawfully accorded the privilege ofresiding permanently in the United States as an immigrant in accordance with the immigrationlaws, such status not having changed.” 8 U.S.C. §1101(a)(20). The agency asserted that thissupported the view that an alien does not become a lawful permanent resident simply by applying for that status. See In re Rotimi, 24 I. & N. Dec. at 573–74.

Third, the BIA relied on the Merriam-Webster’s Collegiate Dictionary, which defines“lawful” as “being in harmony with the law” or “constituted, authorized, or established by thelaw.” Id. at 574 (internal quotation marks omitted). From this, the BIA concluded that for analien’s residence to be lawful, “it must be authorized or in harmony with the law, which requiressome formal action beyond a mere request for authorization or the existence of some impedimentto actual physical removal.” Id.

Fourth, the BIA examined case law, which it contended draws an important distinctionbetween merely being an applicant for a privilege to remain in this country and actually beinggranted that privilege. See id. at 574–76. The BIA acknowledged that two of the cases uponwhich it relied – In re Lok, 18 I. & N. Dec. 101 (B.I.A. 1981), and this Court’s decision in Tim Lok v. INS, 681 F.2d 107 (2d Cir. 1982) – analyzed the “lawful domicile” requirement of formerINA §212(c). It explained, however, that although §212(h) contains no domicile requirement,

based on the long-standing construction of the term “lawful” in the Lok decisions,we think that there is a distinction to be drawn between permitting an alien’spresence in this country for a limited purpose and legalizing his or her stay. It isthis distinction that provides the primary basis for our refusal to count [Rotimi’s]time spent as an applicant for benefits as periods during which he “lawfullyresided” here for purposes of a section 212(h) waiver.In re Rotimi, 24 I. & N. Dec. at 575–76.

Holder, No. 06-0202-ag, slip op. at 7-8.

The Second Circuit found the BIA’s explanation reasonable under the deferential standard of review imposed by Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Thus, the Second Circuit affirmed the BIA’s decision finding that Rotimi’s period of residence while his asylum application and adjustment applications were pending do not count toward the lawful continuous residence requirement of § 212(h).

Notably, the Second Circuit judges were fairly clear that it would not have adopted this rationale were they given the opportunity to interpret § 212(h) in a less deferential fashion. As the Second Circuit’s decision explained, “The Chevron framework sharply constrains this Court. As noted above, even if we would have interpreted the statute differently if the question had arisen first in a judicial proceeding, we are without authority to substitute that interpretation for an agency’s, if the agency’s view is reasonable.” Holder, No. 06-0202-ag, slip op. at 11.

What’s more, the three-judge panel that issued this decision also issued two concurring opinions, o
ne by Judge Newman and another by Judge Katzmann with Judge Feinberg joining. All three judges, it seems, dislike the BIA’s interpretation, but felt bound by the Supreme Court’s holding in Chevron that federal courts must use a deferential standard of review when examining an administrative agency’s interpretation of an ambiguous statute. As Katzmann explained, “Writing on a clean slate, I would have interpreted ‘lawfully resided continuously’ to include the period between June 13,1996, and August 13, 1997, when Rotimi resided in the United States while his applications forasylum and (later) adjustment of status were pending.” Holder, No. 06-0202-ag, slip op. at 1 (Katzmann, J., concurring). Judge Newman went even further, suggesting that Congress enact a private bill to allow Rotimi to stay in the USA. Holder, No. 06-0202-ag, slip op. at 1 (Newman, J., concurring).

In the end, though, the BIA’s interpretation stands: the § 212(h) lawful continuous residence clock does not start until lawful status has been granted.

  • Share via Facebook
  • Share via LinkedIn
  • Share via Twitter
  • Share via Email

Share this:

  • Twitter
  • Facebook

Posted by César on August 20, 2009 on 6:12 pm 46 Comments
Filed Under: Second Circuit Court of Appeals

Comments

  1. forex forum world says

    April 1, 2010 at 9:50 am

    forex forum world

    forex forum world

    Reply
  2. �����-������ � �����-���������� says

    April 8, 2010 at 10:28 am

    �����-������ � �����-����������

    �����-������ � �����-����������

    Reply
  3. Generic cialis cheapest lowest price. says

    April 13, 2010 at 10:47 pm

    Cialis generic viagra rss feed.

    Generic cialis tadalafil. Cialis generic. Generic cialis.

    Reply
  4. Cheap tramadol cod buy cheap cod online tramadol. says

    April 14, 2010 at 1:11 am

    Buy tramadol.

    Buy tramadol online cod. Buy tramadol. Tramadol great buy.

    Reply
  5. Cheap cialis. says

    April 14, 2010 at 10:59 pm

    Very cheap cialis.

    Cheap cialis tadalafil. Cheapest cialis. Buy cheap cialis.

    Reply
  6. Adipex phentermine. says

    April 16, 2010 at 8:01 am

    Adipex compare phentermine adipex hrt.

    Adipex between difference phentermine. Search results adipex vs phentermine. Adipex p phentermine ecureme com.

    Reply
  7. Cheap abilify. says

    April 16, 2010 at 11:13 pm

    Cheap abilify.

    Cheap abilify.

    Reply
  8. Fioricet order. says

    April 17, 2010 at 9:57 pm

    Fioricet order.

    Order fioricet. Fioricet order. Order fioricet cash on delivery.

    Reply
  9. Carisoprodol soma drug test. says

    April 18, 2010 at 10:46 pm

    Pdr carisoprodol soma.

    Carisoprodol soma drug test. Soma carisoprodol you can found more info here. Get soma carisoprodol to effectively relieve pain.

    Reply
  10. Buy phentermine online. says

    April 20, 2010 at 4:48 pm

    Buy phentermine online with e check.

    Mg buy phentermine.

    Reply
  11. Buy lexapro. says

    April 21, 2010 at 11:28 am

    Buy lexapro.

    Buy lexapro.

    Reply
  12. Alprazolam effects side xanax discount. says

    April 22, 2010 at 1:43 am

    Xanax alprazolam.

    Alprazolam effects side xanax discount.

    Reply
  13. Phentermine ionamin. says

    April 23, 2010 at 12:06 am

    Phentermine ionamin.

    Ionamin phentermine.

    Reply
  14. Percocet oxycodone. says

    April 23, 2010 at 9:29 pm

    How to extract oxycodone from percocet.

    Compare and contrast percocet and oxycodone apap.

    Reply
  15. Cheapest soma online no prescription generic. says

    April 24, 2010 at 11:01 pm

    Bac cheap comment leave soma.

    Cheap soma.

    Reply
  16. Buy xanax online. says

    April 26, 2010 at 1:56 am

    Xanax online.

    Cheap xanax online. Xanax online without persctiption. Order online xanax.

    Reply
  17. Buy adderall online without prescription. says

    April 26, 2010 at 11:03 pm

    Buy adderall online no prescription needed.

    Buy adderall online. Buy adderall without a prescription. Buying adderall online. Buy generic adderall no prescription.

    Reply
  18. Buy cheap cialis. says

    April 28, 2010 at 9:44 am

    Buy cialis.

    Buy cialis online. Buy cialis online say wordpress. Buy cialis.

    Reply
  19. Vicodin addiction. says

    April 28, 2010 at 8:37 pm

    Buy vicodin.

    Vicodin with no prescription. Purchase vicodin online. Vicodin. Vicodin addiction.

    Reply
  20. Fioricet online. says

    April 28, 2010 at 9:19 pm

    Online pharmacies that offer fioricet.

    Buy fioricet online that ships to missouri. Fioricet online. Generic fioricet online. Buy fioricet online without a prescription.

    Reply
  21. Fioricet image online prescription. says

    April 29, 2010 at 9:58 pm

    Fioricet online ordering.

    Ambien soma fioricet online. Online prescription fioricet. Fioricet generic online prescription. Buy fioricet with codeine online. Buy fioricet online. Cheap fioricet online. Cheap fioricet fioricet link online order.

    Reply
  22. Buy xanax precrition needed. says

    May 4, 2010 at 8:42 pm

    Buy xanax without prescription in usa.

    Buy presription xanax generic cheap.

    Reply
  23. Cheap abilify. says

    May 6, 2010 at 1:10 am

    Cheap abilify.

    Cheap abilify. Abilify cheap.

    Reply
  24. Brand ultram order ultram tramadol pain medicine. says

    May 6, 2010 at 11:54 pm

    Phendimetrazine order phentermine adipex tramadol.

    Brand ultram order ultram tramadol pain medicine. Phendimetrazine order phentermine adipex tramadol.

    Reply
  25. Pillinc buy phentermine adipex meridia online. says

    May 7, 2010 at 9:32 pm

    Phentermine adipex.

    Phentermine adipex. Phentermine adipex no rx. Adipex or phentermine prescription. Phentermine vs adipex.

    Reply
  26. Cheap vicodin. says

    May 8, 2010 at 10:35 pm

    Cheap vicodin.

    Cheap vicodin. No prior prescrption cheap vicodin.

    Reply
  27. Soma carisoprodol you can found more info here. says

    May 9, 2010 at 9:29 pm

    Pdr carisoprodol soma.

    Carisoprodol soma drug test. Soma carisoprodol you can found more info here. Soma carisoprodol abuse information. Get soma carisoprodol to effectively relieve pain. Carisoprodol soma.

    Reply
  28. Buy xanax without prescription in usa. says

    May 10, 2010 at 11:11 pm

    Buy xanax.

    Buy xanax.

    Reply
  29. Cheap vicodin. says

    May 12, 2010 at 2:17 am

    Cheap vicodin.

    Cheapest vicodin. Cheap vicodin.

    Reply
  30. ������� ����� ���� says

    May 22, 2010 at 6:19 pm

    ������� ����� ����

    ������� ����� ����

    Reply
  31. ���������� ������ ��������� ������ says

    June 11, 2010 at 12:21 am

    ���������� ������ ��������� ������

    ���������� ������ ��������� ������

    Reply
  32. ���� +� ����� +�� ������ says

    June 11, 2010 at 8:29 am

    ���� +� ����� +�� ������

    ���� +� ����� +�� ������

    Reply
  33. ��������������� ����� ������ says

    June 22, 2010 at 8:15 pm

    ��������������� ����� ������

    ��������������� ����� ������

    Reply
  34. ������� ��������� �� ����� says

    June 23, 2010 at 12:45 am

    ������� ��������� �� �����

    ������� ��������� �� �����

    Reply
  35. ������� ����� ����� ������ says

    July 26, 2010 at 7:06 pm

    ������� ����� ����� ������

    ������� ����� ����� ������

    Reply
  36. ������� crack ��� windows 7 says

    July 26, 2010 at 10:04 pm

    ������� crack ��� windows 7

    ������� crack ��� windows 7

    Reply
  37. ����� ������� ������ says

    July 27, 2010 at 11:43 am

    ����� ������� ������

    ����� ������� ������

    Reply
  38. 4 ��� 2009 ������� says

    July 27, 2010 at 6:15 pm

    4 ��� 2009 �������

    4 ��� 2009 �������

    Reply
  39. ������� ��� ����������� ��� says

    July 28, 2010 at 7:15 am

    ������� ��� ����������� ���

    ������� ��� ����������� ���

    Reply
  40. ������� ����� � ������� mrp says

    July 28, 2010 at 8:06 pm

    ������� ����� � ������� mrp

    ������� ����� � ������� mrp

    Reply
  41. ������� ��������� ����������� says

    July 28, 2010 at 11:06 pm

    ������� ��������� �����������

    ������� ��������� �����������

    Reply
  42. ������� adobe acrobat 7 ��������� says

    July 29, 2010 at 8:00 am

    ������� adobe acrobat 7 ���������

    ������� adobe acrobat 7 ���������

    Reply
  43. ����� ������������ says

    September 24, 2010 at 3:13 am

    ����� ������������

    ����� ������������

    Reply
  44. coq10 recommended says

    June 24, 2012 at 4:11 pm

    coq10 recommended

    […]crImmigration.com: 2nd Circuit: Time in USA while asylum and adjustment applications pending does not count toward continuously lawful residence required for § 212(h) waiver[…]

    Reply
  45. payday loans says

    May 5, 2013 at 12:24 pm

    payday loans

    Thank you for what you have got. This really is the top article I’ve read

    Reply
  46. baidu says

    May 17, 2013 at 12:10 pm

    baidu

    baidu http://www.baidu.com

    Reply

Leave a Comment Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Subscribe


Recent Posts

  • Immigration, Nativism & Race in the United States
  • Border Patrol apprehensions, 1925-2020
  • Supreme Court says gap in conviction records hurts migrant
  • Abolish ICE
  • Federal court enjoins 100-day deportation pause
  • ICE issues enforcement priorities

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.