           Case: 14-13234   Date Filed: 08/24/2015   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13234
                        Non-Argument Calendar
                      ________________________

                       Agency No. A024-690-603


SHADE MUSIBAU LAWAL,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,


                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (August 24, 2015)

Before TJOFLAT, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Shade Lawal, a native and citizen of Nigeria, petitions this court to review

the final order of the Board of Immigration Appeals (“BIA”) affirming the decision

of the Immigration Judge (“IJ”) denying his application for a waiver of

inadmissibility under the Immigration and Nationality Act (“INA”) § 212(h),

8 U.S.C. § 1182(h), and ordering his removal. In support of his petition, Lawal

argues that the BIA erred in applying its decision in Matter of Rivas, 26 I. & N.

Dec. 130 (BIA 2013), which was decided after Lawal’s case had already

commenced. As Lawal acknowledges, our prior panel precedent in Rivas v. U.S.

Atty Gen., 765 F.3d 1324 (11th Cir. 2014), forecloses his argument that Matter of

Rivas was wrongly decided. See Pet’r’s Br. 34 n.12. And if Matter of Rivas does

in fact apply, Lawal does not contest that his petition must be denied. The only

question Lawal asks us to address, then, is whether the BIA erred in applying

Matter of Rivas retroactively. See id. at 22–34.

                                         I.

      We review legal conclusions de novo. Lin v. U.S. Att’y Gen., 555 F.3d 1310,

1314 (11th Cir. 2009). We review only the decision of the BIA, except to the

extent the BIA expressly adopted the opinion of the IJ. Indrawati v. U.S. Att’y

Gen., 779 F.3d 1284, 1297 (11th Cir. 2015).




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                                               II.

                                               A.

       The government draws our attention to Yu v. U.S. Att’y Gen., 568 F.3d 1328

(11th Cir. 2009) (per curiam), as supporting the BIA’s retroactive application of

Matter of Rivas. Yu had applied for automatic refugee status pursuant to INA

§ 101(a)(42), 8 U.S.C. § 1101(a)(42), during removal proceedings that began in

October 2003, claiming that the Chinese government would persecute him by

forcing his wife to undergo sterilization, abortion, or invasive insertion of a

contraceptive device. Yu, 568 F.3d at 1329. The IJ found that Yu was not credible

and denied his claims for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture. Id. The BIA dismissed Yu’s appeal,

reasoning that, regardless of the credibility finding, the case was governed by the

intervening precedential decision of Matter of J-S-, 24 I. & N. Dec. 520 (A.G.

2008).

         In Matter of J-S-, the Attorney General directed the BIA “to refer to him,” 8

C.F.R. § 1003.1(h)(1)(i), 1 the BIA’s decision in a case concerning whether INA

§ 101(a)(42), enacted in 1996, conferred automatic refugee status on the spouses of

persons who had been subjected to forced abortion or sterilization pursuant to a

       1
         “[T]he Attorney General retains the authority to review final decisions of the BIA,
either upon the Attorney General’s initiative or by request.” Farquharson v. U.S. Atty. Gen., 246
F.3d 1317, 1323 n.7 (11th Cir. 2001).

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foreign government’s population control. 24 I. & N. Dec. at 521. In 1997 and

2006, the BIA had held that § 101(a)(42) conferred such status on a spouse, but the

Attorney General had not yet addressed those decisions in an opinion. Id. Based

on the text, structure, history, and purpose of the statute, the Attorney General

overruled these prior cases to the extent they held that spouses were entitled to

automatic refugee status under § 101(a)(42). Id. at 523–36; id. at 537 (“[F]rom

now on, the Board and Immigration Judges shall cease to apply the per se rule of

spousal eligibility . . . .” (footnote omitted)).

       Yu argued that the BIA’s retroactive application of Matter of J-S- violated

his due-process rights and that previous BIA decisions entitled him to automatic

refugee status. Yu, 568 F.3d at 1330. We noted that the BIA had previously

interpreted § 101(a)(42) as applying to legally married spouses. Id. at 1330–31.

Applying Chevron analysis, we held that the language of the statute clearly and

unambiguously supported the Attorney General’s interpretation, and that even if

the meaning of the statute was somehow ambiguous, the Attorney General’s

interpretation was reasonable and therefore entitled to deference. Id. at 1331–33.

       In so doing, we specifically rejected Yu’s contention that the BIA’s decision

involved an improper retroactive application of Matter of J-S-. Id. at 1333. We

stated that “[t]he BIA did not retroactively apply a new law but instead applied the

Attorney General’s determination of what the law had always meant.”


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Id. (quotation marks omitted). The Attorney General’s ruling in Matter of J-S- did

not change the law, and the fact that the BIA had previously construed the statute

differently did not prevent the Attorney General from determining otherwise. The

BIA properly applied Matter of J-S- to Yu’s case because, once the decision was

issued, it “became the controlling interpretation of the law and was entitled to full

retroactive effect in all cases still open on direct review, regardless of whether the

events predated the Attorney General’s decision.” Id. at 1334. Although the

decision may have prevented Yu from succeeding in his application, it did not

impair any vested right, but merely upset his expectations based on prior law. Id.

                                          B.

      We conclude that the BIA did not retroactively apply a new rule of law to

Lawal’s case. The BIA’s decision in Matter of Rivas was based on amendments to

INA § 212(h) that took effect in the 1990s, see Matter of Rivas, 26 I. & N. Dec. at

131, before Lawal was convicted of the relevant crimes, left and returned to the

United States, or filed his application for waiver of grounds of admissibility. The

BIA’s decision in Matter of Rivas did not change the law; rather, it clarified what

the law under § 212(h) had been during the entire timeframe relevant to Lawal’s

case. Id. at 134–35. Once the BIA issued Matter of Rivas, that interpretation

became the controlling interpretation of the law and was entitled to full effect in all

cases still open on direct review, such as Lawal’s. See Yu, 568 F.3d at 1334.


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      Lawal suggests that when we found that the language of the statute in Yu

was unambiguous, this finding rendered all subsequent discussion dicta because

automatic refugee status was unavailable even without Matter of J-S-’s retroactive

application. But we alternatively held that Matter of J-S- was a reasonable

interpretation of the statute even if it was ambiguous and that its retroactive

application did not violate due process. See id. at 1333–34. An alternative holding

is binding precedent. See Hitchcock v. Sec’y, Fla. Dep’t of Corr., 745 F.3d 476,

484 n.3 (11th Cir. 2014) (collecting cases).

      Accordingly, we deny the petition for review.

      PETITION DENIED.




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