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.