PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
ADOLFO RENDON BRACAMONTES,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL,
Respondent.

ADOLFO RENDON BRACAMONTES,

Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL,
Respondent.

No. 10-2033

No. 10-2280

On Petitions for Review of Orders of

The Board of Immigration Appeals.
Argued: December 7, 2011
Decided: March 29, 2012
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

BRACAMONTES v. HOLDER

Petition for review granted; vacated and remanded in part and

dismissed in part by published opinion. Judge Wynn wrote the
majority opinion, in which Judge Agee concurred. Judge
Niemeyer wrote an opinion concurring in part and dissenting
in part.

COUNSEL
ARGUED: Satnam Singh, Norfolk, Virginia, for Petitioner.
Sheri Robyn Glaser, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Tony West, Assistant Attorney General, Ernesto H. Molina,
Jr., Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

OPINION
WYNN, Circuit Judge:
Based on Petitioners conviction for an aggravated felony,
the United States sought to remove him pursuant to section
237(a)(2)(A)(iii) of the Immigration and Nationality Act
(INA). The immigration judge ("IJ") denied Petitioner statutory eligibility for a waiver of inadmissibility under 8 U.S.C.
1182(h), or section 212(h) of the INA. Following Petitioners appeal, the Board of Immigration Appeals ("BIA")
agreed with the IJ, concluding that Petitioners post-entry
adjustment of status to lawful permanent resident constituted
an "admission" to the United States.
Because we find that the plain language of section 212(h)
does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility,

BRACAMONTES v. HOLDER

we grant the petition, vacate the order of removal, and remand

this case to the BIA for further proceedings.
I.
Petitioner Adolfo Rendon Bracamontess mother brought
him into the United States illegally from Mexico in 1976,
when he was under two years old. On December 4, 1987,
Petitioner and his mother were granted temporary resident status, which was adjusted to lawful permanent resident status on
May 11, 1990. Since 1976, Petitioner has lived continuously
in the United States, except for a weeklong visit to Mexico in
June 1988.
In 1999, Petitioner pled guilty in Virginia state court to the
aggravated felony of malicious wounding. He was sentenced
to ten years in prison, with seven years suspended; he served
his sentence and probation and has subsequently complied
with all court orders. Petitioner was released from custody in
May 2001, and shortly thereafter, he married a United States
citizen. He has three biological children, ages seven, seventeen, and eighteen, and a nineteen-year-old stepson.
In January 2009, Petitioners spouse submitted an I-130
Petition for Alien Relative for his benefit, along with Petitioners I-485 Application to Register Permanent Residence or
Adjust Status. Petitioner sought a waiver of removal in spite
of his aggravated felony conviction, based on his status as the
spouse of a United States citizen, and asserted that his
removal would result in extreme hardship for his spouse and
children. Following an interview in August 2009, Petitioners
application for adjustment of status was denied on the
grounds that because he was already a lawful permanent resident, he was not eligible for adjustment. Removal proceedings
were immediately initiated against Petitioner.
On October 27, 2009, an IJ granted the Department of
Homeland Securitys Motion to Pretermit Petitioners applica-

BRACAMONTES v. HOLDER

tions for adjustment of status and a waiver, concluding that he

was ineligible for a waiver under 8 U.S.C. 1182(h), or section 212(h) of the INA ("section 212(h) waiver"), because of
his aggravated felony conviction. Specifically, the IJ found
that Petitioner was admitted to the United States as a returning
temporary resident following his weeklong visit to Mexico in
1988, and was then subsequently "admitted" as a lawful permanent resident by virtue of the adjustment of his status in
1990. Petitioner appealed the IJs decision to the BIA.
While that appeal was pending, Petitioner filed a motion to
remand on July 13, 2010, seeking consideration and adjudication of an application for protection under the United Nations
Convention Against Torture ("Convention Against Torture")
on the grounds that he feared retaliation from Mexican gangs
for refusing to join them and opposing their activities in California. On August 30, 2010, the BIA dismissed Petitioners
appeal, agreeing with the IJ on the definitions of "admission"
and "lawfully admitted for permanent residence." The BIA
also denied Petitioners motion to remand, holding that Petitioner had failed to show that he could not have presented his
Convention Against Torture claim at the earlier proceeding
before the IJ.
On September 9, 2010, Petitioner filed a petition for review
of the BIA decision with this Court. On September 28, 2010,
he filed a motion with the BIA to reconsider his eligibility for
a section 212(h) waiver and his motion to remand. Petitioner
also sought a stay of removal. That motion was also denied,
on the grounds that Petitioner had failed to show any error of
law or fact that would change the decision, or to meet his burden of showing that his newly submittedand largely duplicativeevidence might alter the outcome. Petitioner filed
another petition for review of that BIA decision with this
Court. The petitions were consolidated by this Court on
November 17, 2010.1
1

In the meantime, Petitioner was deported to Mexico on October 7,

2010.

BRACAMONTES v. HOLDER

II.
On appeal, Petitioner presents two main arguments: (1) he
is not statutorily barred from seeking a section 212(h) waiver
of inadmissibility; and (2) the BIA abused its discretion by
denying his motion to remand and precluding him from seeking additional relief under the Convention Against Torture, by
denying his motion to reconsider, and by denying him a stay
of removal. We consider each issue in turn.
A.
First, Petitioner argues that contrary to the IJ and BIA decisions, he is eligible to seek a waiver of inadmissibility under
section 212(h). We review de novo legal conclusions of the
BIA, including issues of statutory construction, Li Fang Lin
v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008),2 while
affording appropriate deference to the BIAs interpretation of
the INA, as outlined in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-44
(1984). See also INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999).
Under the principles articulated in Chevron, we begin our
analysis with a determination of whether the statute at issue
is unambiguous with respect to the question presented. If so,
then the plain meaning controls the disposition of Petitioners
appeal. Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 2008)
(citing Chevron, 467 U.S. at 843). Thus, we must determine
whether Congress, through the INA, has unambiguously pro2

If Petitioner were appealing the discretionary decision of the Attorney

General to deny him a waiver of inadmissibility, we would be without
jurisdiction to review such a decision. See 8 U.S.C. 1182(h) ("No court
shall have jurisdiction to review a decision of the Attorney General to
grant or deny a waiver under this subsection."). However, Petitioner
instead challenges the BIAs threshold determination that he is statutorily
ineligible even to seek a section 212(h) waiver, a question of law that
remains subject to our appellate review.

BRACAMONTES v. HOLDER

hibited an alien from seeking a section 212(h) waiver if he

commits an aggravated felony subsequent to his post-entry
adjustment to lawful permanent resident status.
On the other hand, "[i]f . . . the statute is silent or ambiguous with respect to the specific issue before us, the question
for this court becomes whether the BIAs interpretation is
based on a permissible construction of the statute." Id. (quoting Chevron, 467 U.S. at 843). Moreover, the Supreme Court
has noted that if there is ambiguity in the statute, judicial deference to the executive branch agency "is especially appropriate in the immigration context where officials exercise
especially sensitive political functions that implicate questions
of foreign relations." Aguirre-Aguirre, 526 U.S. at 425 (internal quotation marks and citation omitted).
The principal statutory provision at issue in this case, section 212(h) of the INA, vests the Attorney General with the
discretion to waive the inadmissibility of an alien based on the
aliens conviction for an aggravated felony if the denial of
admission "would result in extreme hardship" to the aliens
United States citizen spouse or other family members. 8
U.S.C. 1182(h). Specifically, section 212(h) states in pertinent parts:
The Attorney General may, in his discretion,
waive the application of [the statutory bars to admissibility based on, inter alia, a conviction for a crime
involving moral turpitude] . . . if
(1) . . . .
(B) in the case of an immigrant who is the
spouse, parent, son, or daughter of a citizen
of the United States or an alien lawfully
admitted for permanent residence if it is
established to the satisfaction of the Attorney General that the aliens denial of

BRACAMONTES v. HOLDER

admission would result in extreme hardship

to the United States citizen or lawfully resident spouse, parent, son, or daughter of
such alien;
. . . . and
(2) the Attorney General, in his discretion,
and pursuant to such terms, conditions and
procedures as he may by regulations prescribe, has consented to the aliens applying
or reapplying for a visa, for admission to
the United States, or adjustment of status.
. . . . 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 either since the
date of such admission the alien has been convicted
of an aggravated felony or the alien has not 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.
Id. (emphasis added). Thus, by its plain language, section
212(h) prohibits an alien from receiving a waiver of inadmissibility if that alien lawfully entered the United States with
lawful permanent resident status and committed an aggravated felony subsequent to "such admission" as a lawful permanent resident.3 Id. (emphasis added).
3

Of course, by its plain language and use of the term "inadmissibility,"

section 212(h) appears to apply only to those aliens seeking admission, not
those, such as Petitioner, who already have lawful permanent resident status. However, courts have held that "qualifying removable aliens may also
obtain such waivers." Martinez v. Mukasey, 519 F.3d 532, 541-42 (5th Cir.
2008) (citing Flores-Ledezma v. Gonzales, 415 F.3d 375, 379 n.5 (5th Cir.
2005); Jankowski-Burczyk v. INS, 291 F.3d 172, 175 & n.2 (2d Cir. 2002);
and Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure 51.03 (rev. ed. 2001)).

BRACAMONTES v. HOLDER

Here, the last time Petitioner entered the United States, in

1988, his entry did follow inspection and authorization by an
immigration officer, but at that time he had only temporary
resident status. Petitioner did not receive lawful permanent
resident status until his adjustment in 1990 and has not "lawfully entered into the United States after inspection and authorization by an immigration officer" since that date. As such,
he argues that he has never had an "admission" within the
plain meaning of section 212(h), and therefore remains eligible to seek a waiver of inadmissibility.
We agree that this reading accords section 212(h) its plain
meaning and properly utilizes the definitions of terms Congress provided in the INA, as codified at 8 U.S.C. 1101.
"Admission" and "admitted" are defined as "with respect to an
alien, the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer." 8
U.S.C. 1101(a)(13)(A). Clearly, neither term includes an
adjustment of status; instead, both contemplate a physical
crossing of the border following the sanction and approval of
United States authorities.
Further, "[t]he 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." Id. 1101(a)(20). Thus, using these statutory
definitions, the relevant portion of section 212(h) could be
rewritten as:
No waiver shall be granted under this subsection in
the case of an alien who has previously lawfully
entered into the United States after inspection and
authorization by an immigration officer as an alien
with the status of having been lawfully accorded the
privilege of residing permanently in the United
States as an immigrant if . . . since the date of such
admission the alien has been convicted of an aggravated felony.

BRACAMONTES v. HOLDER

As such, an alien with lawful permanent resident status who

has entered the United States legally, following inspection by
an immigration officer, and is subsequently convicted of an
aggravated felony, is statutorily ineligible for a section 212(h)
waiver. With respect to other aliens, however, the Attorney
General retains the discretion to grant a waiver of inadmissibility to "an immigrant who is the spouse, parent, son, or
daughter of a citizen of the United States or an alien lawfully
admitted for permanent residence if . . . the aliens denial of
admission would result in extreme hardship to the United
States citizen[.]" 8 U.S.C. 1182(h)(1)(B).
The Government asks us to treat Petitioners 1990 adjustment of status as an "admission" for purposes of section
212(h), arguing that the "inspection and authorization" mentioned in section 101(a)(13)(A) could refer to the adjustment
process. Moreover, according to the Government, the statutory bar to a section 212(h) waiver should apply to any and
all aliens with lawful permanent resident status who commit
aggravated felonies. However, that approach would require us
to ignore the plain meaning of the first phrase of the definition, "the lawful entry of the alien into the United States,"
which is in turn modified by the "inspection and authorization" language. See Lanier v. United States Atty Gen., 631
F.3d 1363, 1366 (11th Cir. 2011) ("By including the additional condition of having previously been admitted as a
lawful permanent resident, Congress has narrowed the class
of lawful permanent residents who are barred from seeking
this waiver."). Put another way, if Congress intended section
212(h) to bar all "alien[s] lawfully admitted for permanent
residence," there would have been no need to include the
phrase "previously . . . admitted into the United States."
In fact, this Court has addressed the meaning of "admission," though only in the context of removal pursuant to INA
237(a)(2)(A)(i), for committing a crime of moral turpitude
within five years of an aliens "date of admission." Aremu v.
Dept of Homeland Sec., 450 F.3d 578, 579 (4th Cir. 2006).

10

BRACAMONTES v. HOLDER

In Aremu, we applied the Chevron doctrine and determined

that, using the definition of "admission" provided in INA
101(a)(13)(A), section 237 is plain and unambiguous, and
"the date of adjustment of status does not qualify as the date
of admission under that provision." Id. at 579-81.
Similar to Aremu, the BIAs interpretation of section
212(h) in the instant case fails the first prong of the Chevron
test, as "Congress has directly spoken to the precise question
at issue," and the statutory bar to a waiver of inadmissibility
is not ambiguous with respect to whom it applies. However,
in its decision and order, the BIA asserted that "Congress did
not intend . . . to disrupt the settled principle that adjustment
of status and inspection and admission were functionally
equivalent" or "to differentiate section 212(h) waiver eligibility based upon the procedural mechanism under which an
alien becomes a lawful permanent resident." J.A. 65.4
Regardless of the BIAs speculation concerning congressional intent, however, the statute plainly says what it says, and
the fact remains that the definition of "admission" provided
by Congress simply does not include an adjustment of status.
8 U.S.C. 1101(a)(13)(A); Aremu, 450 F.3d at 581; see also
Conn. Natl Bank v. Germain, 503 U.S. 249, 253-54 (1992)
("We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in
a statute what it says there.").
In the face of a statutes unambiguous language, the BIA
may not make its own administrative amendments, and "[a]s
a court, . . . , we are obliged to give effect to the statutes as
they are written and enacted." Aremu, 450 F.3d at 583 n.6;
INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987) ("The
judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are
contrary to clear congressional intent." (quoting Chevron, 467
4

Citations to the joint appendix are abbreviated as "J.A."

BRACAMONTES v. HOLDER

11

U.S. at 843 n.9)); see also La. Pub. Serv. Commn v. FCC,
476 U.S. 355, 376 (1986) ("[O]nly Congress can rewrite [a]
statute.").
Our holding likewise comports with similar rulings in the
Fifth, Ninth, and Eleventh Circuits. See Martinez v. Mukasey,
519 F.3d 532, 544 (5th Cir. 2008) ("[F]or the 212(h) bar to
apply: when the alien is granted permission, after inspection,
to enter the United States, he must then be admitted as [a lawful permanent resident]. Accordingly, we find no basis for the
statutory languages being ambiguous."); Hing Sum v. Holder,
602 F.3d 1092, 1101 (9th Cir. 2010) ("Procedure, and not
substance, is determinative of an admission into the United
States under 1101(a)(13)(A) and 212(h). The text, structure, and history of the statute confirm that the terms admission and admitted as used in 1101(a)(13)(A) and 212(h)
refer to inspection and authorization by an immigration officer at the port of entry."); Lanier, 631 F.3d at 1366-67
("[W]hen the statutory provision is read as a whole, the plain
language of 212(h) provides that a person must have physically entered the United States, after inspection, as a lawful
permanent resident in order to have previously been admitted
to the United States as an alien lawfully admitted for permanent residence. Based on this unambiguous text, we find that
the statutory bar to relief does not apply to those persons who
. . . adjusted to lawful permanent resident status while already
living in the United States.").
We note as well that the BIA has previously found the text
of section 212(h) to be plain and unambiguous. In In re
Michel, the BIA considered the appeal of an alien who had
been present in the United States for close to ten years, without ever having been admitted or paroled, and was convicted
of an aggravated felony. 21 I. & N. Dec. 1101, 1101 (BIA
1998) (en banc). Following removal proceedings, the alien
claimed on appeal that he was eligible for adjustment of status
and a waiver of inadmissibility under section 212(h). Id. at
1102. Notably, although the facts presented in this case are

12

BRACAMONTES v. HOLDER

admittedly different, as Petitioner has previously been admitted to the United States, albeit as a temporary resident, the
BIA recognized the lack of ambiguity:
. . . [T]he respondent has not previously been admitted to the United States as an alien lawfully admitted
for permanent residence. Section 212(h) of the Act,
while specifically precluding waiver eligibility for a
lawful permanent resident who has been convicted
of an aggravated felony, imposes no such restriction
on one who has not been admitted previously as a
lawful permanent resident.
In this regard, we find that the language of the
statute is clear and unambiguous. Where the language of a statute is clear, as it is here, the unambiguously expressed intent of Congress must be
given effect.
Id. at 1104 (emphases added).
Likewise, though the Government points us to the BIAs
more recent decision in In re Koljenovic, we note that the
alien in that case, as in Michel, effectively had no admission
at all unless his adjustment of status was used as the relevant
date of admission. 25 I. & N. 219, 223 (BIA 2010). Although
the BIA speculated that Congress did not intend to distinguish
between those aliens who enter with lawful permanent resident status and those who adjusted post-entry to lawful permanent resident status, its holding rested instead on the
factual determination of whether an alien had any previous
entry that could be used as a "date of admission." Id. at 222;
see also In re Rosas-Ramirez, 22 I. & N. Dec. 616, 617-18,
623 (BIA 1999) (en banc) (recognizing, in the case of an alien
with no lawful entry into the United States, that "it is less
clear that such a change in status can be characterized as an
entry into the United States" but holding that the adjustment

BRACAMONTES v. HOLDER

13

of status should nevertheless be treated as an "admission" or

else the alien would have none at all).
Here, in contrast to the situations presented in Michel,
Rosas, and Koljenovic, Petitioner does have a prior lawful
entry into the United States, which according to the definition
provided by Congress in 101(a)(13)(A), constitutes an "admission." In those cases, the BIA arguably needed to fill in a
"gap" in the language of section 212(h) because it was
entirely silent concerning how to treat an alien with no lawful
entry at all. However, section 212(h) does address Petitioners
situation, that of an alien with a previous admission, prohibiting a waiver of inadmissibility only if that entry was "as an
alien admitted for permanent residence." Petitioner does not
meet that requirement and accordingly remains eligible for a
section 212(h) waiver.
Moreover, though we take note of the Governments assertions that such a reading of section 212(h) leads to the allegedly absurd result that aliens who adjust post-entry to lawful
permanent resident status receive more favorable treatment
than those who enter with lawful permanent resident status,
we nevertheless agree with our sister Circuits that Congress
may have had rational reasons for making such a distinction.
See, e.g., Martinez, 519 F.3d at 545 (observing that "Congress
may well have been taking a rational first step toward achieving the legitimate goal of quickly removing aliens who commit certain serious crimes from the country." (quoting and
citing Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001)));
see also FCC v. Beach Commcns, Inc., 508 U.S. 307, 313
(1993) (stating that a statutory classification not involving a
suspect class "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.").5
5

Despite numerous equal protection challenges to the distinction drawn

under section 212(h) between illegal immigrants and those admitted as
lawful permanent residents, i.e., that the former remain eligible for relief

14

BRACAMONTES v. HOLDER

In that vein, the Fifth Circuit averred that Congress may

have "recogni[zed] that limited enforcement resources should
be devoted to attacking the problem in stages" or:
. . . might rationally have concluded that adjusted-to[lawful permanent resident]-status aliens . . . are
more deserving of being eligible for a waiver of
inadmissibility [as many] entered the United States
as . . . minor[s], grew up in this country, and developed ties here. [Such aliens] also went through the
scrutiny of adjustment, in which [their] record[s] in
the United States w[ere] examined. Congress could
have concluded rationally that [these] individuals . . .
are more deserving, than those who entered as [lawful permanent residents], of being eligible for the
212(h) waiver, including likely having more citizen relatives who would be affected adversely by
removal.
Martinez, 519 F.3d at 545. We likewise agree
thatregardless of whether some might deem such a distinction "absurd"these are rational explanations and, as such,
they must be upheld. See id. ("What is relevant is that there
are countervailing explanations for the statutory distinction
between admitted and adjustment, which are just as plausible, if not more so, than the Governments contention that
from removability while the latter do not, courts have consistently overruled such challenges, finding that Congress may have had a rational basis
for the disparate treatment. See, e.g., Lara-Ruiz v. INS, 241 F.3d 934, 947
(7th Cir. 2001) ("Congress may rationally have concluded that [lawful permanent residents] who commit serious crimes . . . are uniquely poor candidates for relief from removal through the backdoor of waiver of
inadmissibility."); Lukowski v. INS, 279 F.3d 644, 647-48 (8th Cir. 2002)
(same); Moore v. Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001) (same);
see also Ramtulla v. Ashcroft, 301 F.3d 202, 203-04 (4th Cir. 2002) (dismissing for lack of jurisdiction a similar equal protection challenge
because it was not "substantial," implicitly because it had already been
decided by several circuit courts).

BRACAMONTES v. HOLDER

15

such a reading would lead to an absurd result. Therefore, we

are not at liberty to override the plain, unambiguous text of
INA 212(h) and 101(a)(13).").
If the disparate eligibility for a waiver of inadmissibility of
aliens who enter with lawful permanent resident status and
those who adjust post-entry to lawful permanent resident status is not what Congress intended, Congress, not this Court or
the BIA, must amend the relevant language to reflect its legislative purpose. As it stands, however, the language is plain
and unambiguous, meaning that our analysis ends with the
first prong of Chevron analysis: section 212(h) bars only
those aliens who have committed aggravated felonies and
who have previously been admitted to the United States with
lawful permanent resident status from seeking a waiver of
inadmissibility. Because he adjusted post-entry to lawful permanent resident status, Petitioner does not fall within that statutory exclusion. Accordingly, we grant Petitioners petition
for review and vacate the BIAs order of removal.
B.
Next, Petitioner contends that the BIA abused its discretion
by denying his motion to remand and precluding him from
seeking additional relief under the Convention Against Torture, by denying his motion to reconsider, and by denying him
a stay of removal. We dismiss these arguments for lack of
jurisdiction.
Under 8 U.S.C. 1252(a)(2)(C), "no court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a criminal
offense" such as an aggravated felony. Nevertheless, the following section provides that "[n]othing . . . which limits or
eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of
appeals in accordance with this section." Id. 1252(a)(2)(D).

16

BRACAMONTES v. HOLDER

Petitioner was found to be removable based on his having

committed an aggravated felony. Thus, before considering the
merits of Petitioners claims, we must determine whether he
raises questions of law, over which we retain jurisdiction, or
questions of fact or discretionary decisions, over which we
have none. Saintha, 516 F.3d at 248.
Here, the BIA decisions challenged by Petitioner, save for
the ruling addressed above that he was statutorily ineligible to
seek a waiver of inadmissibility under section 212(h), were
either discretionary in nature or otherwise based on nonreviewable underlying factual determinations. See id. at 250
(finding that Convention Against Torture determinations are
reviewed under the substantial evidence standard, which is
not reviewable in the case of the removal of an alien convicted of an aggravated felony because of 8 U.S.C.
1252(a)(2)(C)); Hussain v. Gonzales, 477 F.3d 153, 155
(4th Cir. 2007) (noting that the denial of a motion to remand
is a discretionary decision); Narine v. Holder, 559 F.3d 246,
249 (4th Cir. 2009) ("We review a denial of a motion to
reconsider for an abuse of discretion." (citation omitted)).
Accordingly, we have no jurisdiction to review these claims.
8 U.S.C. 1252(a)(2)(C); Saintha, 516 F.3d at 248.
Moreover, Petitioners position that the denial of an opportunity to present his Convention Against Torture claims is
legal, rather than factual, in nature, is unavailing. The BIA
made a factual determination that Petitioner had failed to
present new evidence related to the Convention Against Torture that he was unable to offer at the earlier proceedings.
This Court may not now revisit that decision, as it does not
implicate a question of law.
In addition, in light of our holding above regarding Petitioners eligibility to seek a waiver of inadmissibility under
section 212(h), his appeal of the denial of his motion for a
stay of removal is essentially moot.

BRACAMONTES v. HOLDER

17

III.
In conclusion, we find that the relevant language of section
212(h) is unambiguous, and that therefore the BIA decision is
not entitled to Chevron deference. Section 212(h) plainly provides that Petitioner is not statutorily barred from seeking a
waiver of inadmissibility. Accordingly, we grant the petition
for review, vacate the order of removal, and remand this case
to the BIA for further proceedings and determination of the
discretionary decision to grant Petitioner a section 212(h)
waiver. Petitioners remaining claims are dismissed for lack
of jurisdiction.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED IN PART
AND DISMISSED IN PART
NIEMEYER, Circuit Judge, concurring in part and dissenting
in part:
I concur in Part II.B of the majoritys opinion, holding that
we lack jurisdiction to entertain objections to various discretionary determinations of the Board of Immigration Appeals
("BIA"). But I dissent from Part II.A. While the majority has
perhaps set forth a plausible construction of 212(h) of the
Immigration and Nationality Act ("INA"), 8 U.S.C.
1182(h), its construction is not the only, or even the most,
plausible construction. Indeed, I conclude that the different
construction given to 212(h) by the BIA is not only plausible but is more consistent with the other provisions of the
INA. But choosing the best construction is not our task. When
a statute yields two plausible constructions, we should defer
to the agency, especially when the statute pertains to immigration matters. See Chevron, U.S.A., Inc. v. Natural Resources
Def. Council, Inc., 467 U.S. 837 (1984); INS v. AguirreAguirre, 526 U.S. 415, 425 (1999). Accordingly I would
affirm.

18

BRACAMONTES v. HOLDER

I
Bracamontes, a native of Mexico who illegally entered the
United States in 1976 when he was two, was granted temporary resident status in 1987. Shortly thereafter, in June 1988,
Bracamontes left the United States for a short visit to Mexico,
returning as a lawful temporary resident. After returning, in
May 1990, Bracamontes status was adjusted to that of a lawful permanent resident.
In 1999, Bracamontes pleaded guilty to a Virginia state
charge of malicious wounding, for which he served several
years in prison. After his discharge, he married a United
States citizen, with whom he has had three children, now
teenagers.
In 2009, the Department of Homeland Security ("DHS")
commenced removal proceedings against Bracamontes
because he was an alien who, after admission, was convicted
of an aggravated felony. While Bracamontes conceded
removability, he indicated that he would apply for an adjustment of status as the husband of a U.S. citizen and for a
waiver under 212(h) of the application of his aggravated felony, which otherwise would require his removal. The DHS
sought to pretermit Bracamontes applications for adjustment
of status and waiver under 212(h) because he was ineligible
for a waiver according to the BIAs construction of 212(h).
The immigration judge granted DHSs motion to pretermit
Bracamontes applications, and the BIA affirmed.
Bracamontes now seeks a petition for review, arguing that
he qualified for a waiver under 212(h), contrary to the
BIAs interpretation of that section.
II
The issue in this case turns on the proper construction of
212(h) to determine whether Bracamontes qualifies for a

BRACAMONTES v. HOLDER

19

waiver of the application of his aggravated felony conviction.

The controlling language of 212(h) states:
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 the alien has been convicted of an aggravated felony . . . .
8 U.S.C. 1182(h) (emphasis added).
The DHS contends that the language denying waiver to an
"alien who has previously been admitted to the United States
as an alien lawfully admitted for permanent residence"
includes an alien whose status has been adjusted to that of
lawful permanent resident. It relies not only on the definition
of "lawfully admitted for permanent residence," see INA
101(a)(20), 8 U.S.C. 1101(a)(20), which means "the status
of having been lawfully accorded the privilege of residing
permanently in the United States" (emphasis added), but also
the BIAs established position, as reflected in Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010).
Bracamontes, on the other hand, contends that the language
denying waiver applies only to aliens "admitted" at the border
as a lawful permanent resident, i.e., an alien who has entered
the United States as a lawful resident alien, as "admitted" is
defined in INA 101(a)(13)(A). Specifically, that provision
defines "admitted" as "the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer" (emphasis added). He argues that because he
never entered the United States as a lawful permanent resident, but rather in 1988 as a lawful temporary resident, the
waiver bar does not apply to him.
The majority opinion recognizes that if 212(h) is ambiguous, we should defer to the BIA under the Chevron doctrine

20

BRACAMONTES v. HOLDER

and that such deference is "especially appropriate" with

respect to immigration matters. Ante, at 6. But it reads
212(h) to be unambiguous, and its unambiguous reading is
contrary to the one that has been adopted by the BIA. The
majority states, "the definition of admission provided by
Congress simply does not include an adjustment of status."
Ante, at 10. The majoritys basis for finding the "plain meaning" turns on the fact that 212(h) uses the stand-alone term
"admitted," which is defined by 101(a)(13)(A) in terms of
"entry." See ante, at 7-8. Most of the majority opinion proceeds as though this proposition was obvious. See, e.g., ante,
at 10 ("[T]he statute plainly says what it says"). Indeed, the
majority even proposes its own rewording of 212(h) to
incorporate the 101(a)(13)(A) definition. See ante, at 8.
This approach, however, fails to recognize that another
construction of 212(h) can be made that is just as plausible
and that is probably more rational in the larger context of the
INA. Section 212(h) uses not only the defined terms "admitted" and "admission," which are defined in 101(a)(13)(A) to
refer to the lawful entry of the alien after inspection, but it
also uses the term "admitted" in the more specific phrase
"lawfully admitted for permanent residence," which is defined
in 101(a)(20) to refer to an adjustment of status. Thus, the
list of definitions contained in 101(a) includes a definition
for "admitted" standing alone to refer to "entry" and a definition of "admitted" as included in the phrase "lawfully admitted for permanent residence" to refer to "status"more
particularly "the status of having been lawfully accorded the
privilege of residing permanently in the United States." 8
U.S.C. 1101(a)(20) (emphasis added). Of course, this definition of "lawfully admitted for permanent residence" accurately describes Bracamontes circumstances because he
became a lawful permanent resident by an adjustment of status in 1990.
The BIA has recognized the ambiguity of 212(h) created
by the two different definitions of "admitted"one defining

BRACAMONTES v. HOLDER

21

"admitted" to refer to "entry" and the other defining "admitted" to refer to "status." But it resolved the ambiguity to read
212(h) to be consistent with other provisions of the INA and
with the apparent intent of Congress. The BIA did not find the
problem to be insurmountable, because "[a]djustment of status is essentially a proxy for inspection and permission to
enter at the border, which is given as a matter of administrative grace." Koljenovic, 25 I. & N. Dec. at 221; see also Matter of Rainford, 20 I. & N. Dec. 598, 601 (BIA 1992) ("As we
have repeatedly held, an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the
position of one seeking to enter the United States").
The BIA has also catalogued a litany of interpretive and
policy reasons to support its construction, including the absurdity that would result if individuals who were never admitted
at the border, but who later adjusted to lawful permanent resident status, are deemed "lawfully admitted for permanent residence" under 101(a)(20), but not "admitted" despite the fact
that the word "admitted" appears in the phrase "lawfully
admitted for permanent residence." See Koljenovic, 25 I. & N.
Dec. at 222.
Rather than rejecting Koljenovic outright, as its construction of 212(h) would require, the majority attempts to draw
a distinction. It explains that Koljenovic involved an alien
who had never legally entered at the border (and who therefore was never "admitted" as the term is defined in
101(a)(13)(A)), whereas the case now before us involves an
alien who legally entered (and was "admitted") with temporary status and who later adjusted to lawful permanent resident status without reentry. See ante, at 12-13. Thus, the
majority allows that, if an alien with lawful permanent resident status has never previously been legally admitted at the
border, the words "admitted" and "date of . . . admission" in
212(h) must be defined in terms of adjustment of status, as
used in 101(a)(20), rather than physical entry at the border,
as used at 101(a)(13)(A). The majoritys concession is a

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BRACAMONTES v. HOLDER

sensible one, but it is also fatal to its entire analysis. It proves

that the linguistic necessity of construing "admitted" in
212(h) by reference to 101(a)(13)(A) is not so obvious
after all, and it directly subverts the majoritys bold attempt
to reword 212(h) to fit its "unambiguous" interpretation.
Another consideration that weighs strongly in favor of the
BIAs approach is that Congress gave "no indication that [it]
intended the limitations it built into section 212(h) to apply to
those aliens whose previous admission to lawful permanent
resident status occurred through the overseas consular process, but not to the majority of aliens whose admission
occurred through adjustment of status." Koljenovic, 25 I. & N.
Dec. at 224. It is difficult to fathom why Congress would
have wished to bar aliens who lawfully entered the United
States with lawful permanent resident status from reaping the
benefits of 212(h) while permitting aliens who illegally
entered the country from doing so. The resulting incentives
would be exactly backwards. Despite an effort to rationalize
this distinction, the majority leaves us with little more than a
reassurance that its construction of 212(h) would survive
rational basis scrutiny. See ante, at 13-14 & n.5.
Indeed, it may be noted that in rejecting the BIAs holding
in Koljenovic, the majority has created even a more serious
problem than it has acknowledged. As the majority construes
it, 212(h) not only rewards illegal entrants over legal ones,
but it also rewards a subset of legal entrants over another subset of legal entrants, with no discernable reason. Specifically,
the majoritys approach rewards those such as Bracamontes,
who lawfully entered the United States in 1988 having no
lawful permanent resident status and subsequently adjusted to
lawful permanent residence status, over those who lawfully
entered with lawful permanent resident status in the first
place.
Were we given the choice as to which construction of
212(h) should be applied, we should undoubtedly find the

BRACAMONTES v. HOLDER

23

BIAs construction far more satisfactory in that it not only satisfies the reasonableness standard but also gives full effect to
Congress purposes in view of the "overall structure of the
Act." Koljenovic, 25 I. & N. Dec. at 224; cf. Schafer v. Astrue,
641 F.3d 49, 57-58 (4th Cir. 2011) (reviewing congressional
purpose and legislative history at Chevron step one). But what
we would choose on the matter is quite irrelevant. Presented
with the indisputable ambiguity of 212(h), we must defer to
the BIA under the principles of Chevron.
Chevron deference lies at "the heart of modern administrative law" because it "ensures that agency officials, who are
subject to greater political accountability and possess greater
relevant expertise than judges, take the lead in implementing
programs delegated to their care." Schafer, 641 F.3d at 61.
These considerations have special force in relation to the INA,
because immigration law involves "especially sensitive political functions that implicate questions of foreign relations."
Aguirre-Aguirre, 526 U.S. at 425. Thus, it does not matter
whether we agree with the BIAs construction of the INA. See
Saintha v. Mukasey, 516 F.3d 243, 253 (4th Cir. 2008). If the
statute is "ambiguous" with respect to the interpretive question presented, then we must defer to the agencys approach
so long as it is "reasonable." Natl Elec. Mfrs. Assn v. U.S.
Dept of Energy, 654 F.3d 496, 504 (4th Cir. 2011).
Because 212(h) is indisputably ambiguous and because
the BIAs resolution of the ambiguity is reasonable, I would
defer to the BIA and accordingly affirm.