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Neil Nicholas Adams v. Eric H. Holder

August 15, 2012

NEIL NICHOLAS ADAMS, PETITIONER,
v.
ERIC H. HOLDER, JR., RESPONDENT.



The opinion of the court was delivered by: Reena Raggi, Circuit Judge:

10-2923-ag

Adams v. Holder

Submitted: February 1, 2012

Before: WINTER, RAGGI, and CHIN, Circuit Judges.

Petitioner, who was ordered removed from the United States in 2010 because the visa he used to enter this country as a lawful permanent resident in 1997 had been obtained by fraud, here challenges the removal order as untimely, claiming that he was the beneficiary of an adjustment of status when he obtained his immigrant visa from the United States consul in his home country; and the five-year limitation on rescinding an alien's adjusted status, see 8 U.S.C. § 1256(a), applies to removal orders based on grounds that would have warranted rescission.

The petition for review is DENIED.

Neil Nicholas Adams, a citizen of Jamaica, petitions for review of a 2010 decision of the Board of Immigration Appeals ("BIA") ordering his removal from the United States because he entered the country on the basis of a fraudulently procured immigrant visa and without otherwise valid entry documents. See In re Adams, No. A 046 240 254 (B.I.A. July 1, 2010), aff'g No. A 046 240 254 (Immig. Ct. Batavia, N.Y. Feb. 24, 2010). Adams contends that § 246(a) of the Immigration and Nationality Act ("INA") as amended, see 8 U.S.C. § 1256(a),*fn1 bars the Attorney General from ordering removal because (1) Adams was the beneficiary of an adjustment of status when, in 1997, he obtained from the United States consul in Jamaica an immigrant visa that allowed him to enter this country as a lawful permanent resident; and (2) § 1256(a) imposes a five-year limitation on rescinding the status of an alien that had been adjusted to that of a lawful permanent resident, and that limitations period prevented the Attorney General from issuing an order in 2010 for Adams's removal on grounds that also would have warranted such rescission. The arguments are meritless. Adams's receipt of an immigrant visa did not result in an adjustment of status, and § 1256(a)'s limitations period on rescission does not apply to removal. Accordingly, Adams's petition for review is denied.

I. Background

Adams first entered the United States from his native Jamaica in 1990 on a visitor's visa, the time limits of which he overstayed. Subsequently arrested in Queens, New York, for attempting to sell cocaine to an undercover police officer, Adams represented in state court that he was "Michael Thomas" and, in that name, pleaded guilty on February 20, 1992, to attempted sale of a controlled substance. Admitted to bail, "Thomas" failed to appear for sentencing, resulting in a bench warrant being issued for his arrest. Soon thereafter, the state court received a form from Jamaica certifying that "Michael Thomas" had committed suicide, prompting it to mark the criminal case "abated by death."

Sometime after his February 20, 1992 guilty plea, Adams did in fact return to Jamaica where, on August 4, 1994, he married Charlene Rooms, a United States citizen. Adams then applied to the United States consul in Jamaica for an immigrant visa, falsely representing on his application that he had never been in the United States, had lived continuously in Jamaica, and had never been arrested or convicted. Relying on these falsehoods, the United States consul granted Adams an immigrant visa in 1997 and, that same year, he was admitted to this country as a lawful permanent resident. He lived in this country for the next eleven years, apparently without any noteworthy incident, except for his 2004 divorce from Rooms.

On February 28, 2008, when Adams was returning to the United States from a trip to Jamaica, he was stopped by Customs and Border Patrol ("Customs") officials, who suspected that Adams was the person identified as "Michael Thomas" in the still-outstanding 1992 New York arrest warrant. Customs did not admit Adams to the United States but, rather, paroled him into the country for the purpose of clarifying his identity. Upon confirmation that Adams and "Michael Thomas" were the same person, the Queens District Attorney's Office reinstated his criminal case. On March 19, 2008, when Adams presented himself for deferred inspection, Customs detained Adams and transferred him to state custody. On December 15, 2008, a New York State judgment of conviction was entered against Adams for attempted sale of cocaine, and he was sentenced to an indeterminate term of two to six years' imprisonment, which Adams served at a "shock incarceration" facility.

On February 19, 2009, the Department of Homeland Security ("DHS") issued Adams a Notice to Appear, charging him as removable based on his state drug conviction. See 8 U.S.C. § 1182(a)(2)(C). Upon realizing that the drug conviction was not final for purposes of the INA in light of a pending appeal, see Marino v. INS, 537 F.2d 686, 691-92 (2d Cir. 1976); accord Walcott v. Chertoff, 517 F.3d 149, 154 (2d Cir. 2008), DHS amended the Notice to Appear to delete 8 U.S.C. § 1182(a)(2)(C) as the ground for removal and to substitute § 1182(a)(6)(C)(i), which renders inadmissible "[a]ny alien who, by fraud or misrepresenting a material fact, . . . has procured . . . a visa, other documentation, or admission into the United States," and § 1182(a)(7)(A)(i)(I), which renders inadmissible "any immigrant at the time of application for admission . . . who is not in possession of a valid unexpired immigrant visa, . . . or other valid entry document."

Upon his August 13, 2009 release from state prison, Adams was transferred to DHS custody pending resolution of his immigration proceedings. Adams moved pro se for cancellation of removal, which motion was denied on February 24, 2010, following a hearing before Immigration Judge ("IJ") John B. Reid. The IJ reasoned that Adams was not entitled to cancellation of removal as a lawful permanent resident because he had obtained that status fraudulently and there were no other grounds warranting cancellation. Further, the IJ ruled that the government was not required to have rescinded Adams's status as a lawful permanent resident before ordering his removal because, upon returning to the United States from Jamaica, Adams had not been admitted into the country but only paroled into the custody of state law enforcement officials. Adams disclaimed any entitlement to asylum, withholding of removal, or relief under the Convention Against Torture. Accordingly, the IJ ordered Adams removed.

Adams appealed pro se to the BIA, contending that § 1256(a), which imposes a five-year limitation on rescission, barred his removal as untimely. Adams also submitted that he was not removable for fraudulently obtaining admission into the United States in 1997, and that he was eligible for relief under former INA § 212(c), see 8 U.S.C. § 1182(c) (1996). The BIA rejected all of Adams's claims, concluding that (1) the five-year limitation on rescission does not apply to removal and, in any event, the five-year limitation only applies to an alien whose status has been adjusted by the Attorney General, not to aliens, such as Adams, who obtained immigrant visas through consular processing; (2) the record supported the IJ's determination that Adams had obtained his lawful permanent resident status fraudulently; and (3) Adams was not entitled to § 212(c) relief because he was not found removable on the basis of his drug distribution conviction.

Adams timely petitioned for review, and this court appointed him counsel.

II. Discussion

A. Standard of Review

We have jurisdiction to review Adams's petition for review insofar as it presents only a question of law, i.e., whether 8 U.S.C. § 1256(a) limits the Attorney General's authority to remove him. See 8 U.S.C. § 1252(a)(2)(D). We generally review questions of law de novo, see Boluk v. Holder, 642 F.3d 297, 301 (2d Cir. 2011), considering both the BIA and IJ decisions together, see Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007). Nevertheless, where, as here, the BIA's challenged decision was informed by the Attorney General's interpretation of the INA adopted in formal adjudication, our review follows the two-step framework set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); accord Feimei Li v. Renaud, 654 F.3d 376, 382 (2d Cir. 2011).

At the first step, we examine the statute itself and determine "'whether Congress has directly spoken to the precise question at issue.'" Feimei Li v. Renaud, 654 F.3d at 382 (quoting Chevron, 467 U.S. at 842). If Congress has so spoken, "'that is the end of the matter' because this Court 'must give effect to the unambiguously expressed intent of Congress.'" Id. (quoting Chevron, 467 U.S. at 842-43). If, however, the statute remains ambiguous despite our use of all relevant tools of statutory construction and legislative history, see Cruz-Miguel v. Holder, 650 F.3d 189, 193 (2d Cir. 2011), we proceed to a second step of analysis to examine whether the agency's interpretation is reasonable, and not "arbitrary, capricious, or manifestly contrary to the statute," ...


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