                                                                     [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________
                                                                   FILED
                               No. 09-15300              U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                                FEB 4, 2011
                                                                JOHN LEY
                          Agency No. A074-348-828                 CLERK

MARGARET OLAYINKA LANIER,
a.k.a. Carol Denise Bryant,
a.k.a. Andrea Unis Saunders,

                                                                      Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                         ________________________

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

                              (February 4, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

BARKETT, Circuit Judge:

     Petitioner Margaret Olayinka Lanier, a citizen and native of Nigeria and a
lawful permanent resident of the United States, seeks judicial review of a decision

by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) order that Lanier be removed to Nigeria. Lanier argues that the IJ and BIA

erred as a matter of law in determining that she was statutorily ineligible to apply

for a discretionary waiver of removal under § 212(h) of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1182(h).1

       Lanier entered the United States without inspection in 1992. In 1996, she

became eligible for and was able to adjust her status to that of a lawful permanent

resident. In 2007, the Department of Homeland Security charged Lanier as

removable for having committed an aggravated felony and a crime involving

moral turpitude. She conceded that she was removable as charged, but filed an

emergency motion requesting that the IJ permit her to apply for a waiver of

removability pursuant to § 212(h) of the INA on the grounds that her daughter, a

U.S. citizen who suffers from sickle cell anemia, would suffer hardship if the

United States removed her. The IJ did not address the merits of Lanier’s

application, ruling instead that Lanier’s conviction for an aggravated felony


       1
         The § 212(h) discretionary waiver is typically referred to as the “waiver of
inadmissibility,” as INA § 212 sets forth grounds upon which an alien can be denied admission to
the United States, as well as conditions under which certain of those grounds can be waived.
However, the waiver is also available in removal proceedings. Yeung v. I.N.S., 76 F.3d 337, 340
(11th Cir. 1995).

                                               2
rendered her statutorily ineligible to apply for a § 212(h) waiver. The IJ thus

ordered Lanier’s removal to Nigeria and the BIA affirmed.

      Section 212(h)(1)(B) of the INA gives the Attorney General the discretion

to waive the immigration consequences of certain criminal convictions if a person

demonstrates that her removal or denial of admission would result in extreme

hardship to a U.S. citizen family member. INA § 212(h)(1)(B), 8 U.S.C.

§ 1182(h)(1)(B). However, certain persons are barred from seeking a

discretionary waiver under § 212(h), which states in relevant part:

      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 . . . .

INA § 212(h), 8 U.S.C. § 1182(h).

      Lanier argues that the IJ and BIA erred in finding that this provision applies

to her. She contends that, because she adjusted to lawful permanent resident status

after she had been living in the United States, she is not a person who has

“previously been admitted to the United States as an alien lawfully admitted for

permanent residence” as the statute requires. Thus, the issue before us on appeal

is whether adjusting to lawful permanent resident status while already living in the

United States qualifies as having “previously been admitted to the United States as

                                          3
an alien lawfully admitted for permanent residence” under INA § 212(h).2

       We review questions of statutory interpretation de novo, looking first and

foremost to the statutory text “to determine whether the language at issue has a

plain and unambiguous meaning with regard to the particular dispute in the case.”

Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007) (quoting

D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1235 (11th Cir. 2005); see

Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). “Absent a

clearly expressed legislative intent to the contrary, the plain and unambiguous

language of the statute must prevail.” Gonzales v. McNary, 980 F.2d 1418, 1421

(11th Cir. 1993) (quoted with approval in Ward v. U.S. Att’y Gen., 608 F.3d 1198,

1201 (11th Cir. 2010)).

       The statute provides that the § 212(h) waiver is not available to an “an alien

who has previously been admitted to the United States as an alien lawfully

admitted for permanent residence.” INA § 212(h), 8 U.S.C. § 1182(h) (emphasis

added). This provision contains two terms that each have been expressly defined

by Congress: “admitted” and “lawfully admitted for permanent residence.” Our

interpretation of this statute thus requires us to assess the effect of each term on


       2
           We have jurisdiction to review the legal question of whether Lanier is statutorily
eligible to apply for a § 212(h) waiver. Vila v. U.S. Att’y Gen., 598 F.3d 1255, 1257 (11th Cir.
2010) (citing 8 U.S.C. § 1252(a)(2)(D)).

                                                4
the meaning of this provision as a whole. See United States v. Velez, 586 F.3d

875, 877 (11th Cir. 2009) (holding that courts must look to specific context in

which statutory language is used and give effect to every word in a statute where

possible).

      Congress has defined the phrase “lawfully admitted for permanent

residence” as a term of art meaning “the status of having been lawfully accorded

the privilege of residing permanently in the United States as an immigrant in

accordance with the immigration laws.” INA § 101(a)(20), 8 U.S.C.

§ 1101(a)(20). This definition describes a particular immigration status, without

any regard for how or when that status is obtained. Thus, this term of art

encompasses all persons with lawful permanent resident status, including those

who obtained that status prior to or at the time of their physical entry into the

United States, as well as those who adjusted their status while already living in the

United States. See Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008)

(definition “encompass[es] both admission to the United States as a [lawful

permanent resident] and post-entry adjustment to [lawful permanent resident]

status”).

      There is no dispute that Lanier has been “lawfully admitted for permanent

residence,” and that she obtained such status after already living in the United

                                           5
States for several years. However, § 212(h) does not simply say that a waiver is

not available to “an alien lawfully admitted for permanent residence,” which

would indicate that all lawful permanent residents are barred from § 212(h) relief.

Instead, it says that a waiver is not available to “an alien who has previously been

admitted to the United States as an alien lawfully admitted for permanent

residence.” INA § 212(h), 8 U.S.C. § 1182(h) (emphasis added); see Hing Sum v.

Holder, 602 F.3d 1092, 1095 (9th Cir. 2010) (parsing statute into two distinct

phrases); Martinez, 519 F.3d at 544-45 (same). 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. Thus Lanier’s eligibility to seek a waiver turns on

whether she has “previously been admitted to the United States as” a lawful

permanent resident.

      The term “admitted” has expressly been defined by Congress as “the lawful

entry of the alien into the United States after inspection and authorization by an

immigration officer.” INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A). This

definition is limited, and does not encompass a post-entry adjustment of status.

See Martinez, 519 F.3d at 544 (“‘admission’ is the lawful entry of an alien after

inspection, something quite different, obviously, from post-entry adjustment of


                                          6
status”) (emphasis in original); Aremu v. Dep’t of Homeland Sec., 450 F.3d 578,

581 (4th Cir. 2006) (“the statutory definition of ‘admission’ does not include

adjustment of status”). See generally Burgess v. United States, 553 U.S. 124, 130

(2008) (Where Congress expressly defines a statutory term, that definition

“generally excludes any meaning that is not stated.”) (citation omitted).

       Thus, when 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, like Lanier, adjusted to lawful permanent

resident status while already living in the United States.3 See Martinez, 519 F.3d

at 544 (holding that for statutory bar to § 212(h) waiver to apply, “when the alien

is granted permission, after inspection, to enter the United States, he must then be

admitted as an LPR”).4


       3
          The government argues that we should defer to the BIA’s interpretation of “admitted”
as used in § 212(h) to include post-entry adjustment of status. See Matter of Koljenovic, 25 I. &
N. Dec. 219, 221 (BIA 2010). Because we find no ambiguity in the statutory text, however, we
accord no deference to the BIA’s interpretation of § 212(h). See Chevron, U.S.A., Inc. v. Natural
Res. Defense Council, Inc., 467 U.S. 837, 842-44 (1984).
       4
        As the Fifth Circuit explained in Martinez, plausible reasons exist for why Congress
would choose to distinguish between aliens who entered the country as lawful permanent

                                               7
       Accordingly, Lanier’s petition for review is GRANTED and this matter is

REMANDED to the BIA with instructions to remand to the immigration court so

that Lanier may seek a waiver of removal pursuant to INA § 212(h), 8 U.S.C.

§ 1182(h).

       PETITION GRANTED and REMANDED.




residents and those who adjusted to lawful permanent resident status post-entry, including: (1)
Congress wanted to take an incremental approach to addressing its ultimate goal of removing
criminal aliens; and (2) Congress determined that aliens who adjusted their status are more
deserving of access to the waiver. 519 F.3d at 545. Given these rational explanations for the
distinction between the two types of lawful permanent residents, the Fifth Circuit concluded, as
do we, that it was not at liberty to override the plain, unambiguous text of § 212(h). Id. In
addition, defining “admitted” to exclude post-entry adjustment to LPR status is bolstered by the
“‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor
of the alien.’” Id. at 544 (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).


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