            Case: 13-11796    Date Filed: 11/13/2014   Page: 1 of 10




                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 13-11796
                           Non-Argument Calendar
                         ________________________

                          Agency No. A079-400-970


JUSTO MANUEL VILLALVA,

                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

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

                             (November 13, 2014)

Before WILLIAM PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Justo Manuel Villalva, a native and citizen of Peru, seeks review of an order

of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
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(“IJ’s”) denial of Villalva’s application for a waiver of inadmissibility under

Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h). On

appeal, Villalva argues that his Florida state conviction for aggravated assault with

a deadly weapon was not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F),

because he did not receive a sentence of imprisonment greater than one year until

his probation was revoked. He also contends that the BIA incorrectly found that he

was ineligible for a § 212(h) waiver. After careful review, we deny the petition.

                                         I.

      Villalva was admitted to the United States as a conditional resident in 2001

and subsequently adjusted his status to that of a lawful permanent resident in 2005.

In 2006, Villalva was convicted in Florida state court of two counts of aggravated

assault with a deadly weapon, in violation of Fla. Stat. §§ 784.011, 784.021(1)(a),

and 784.021(2). Villalva initially was sentenced to two years of probation. His

probation was subsequently revoked, however, and he then received a five-year

term of imprisonment.

      Villalva was served with a Notice to Appear in 2011, charging him as

removable because he was a lawful permanent resident who had been convicted of

an aggravated felony for which the term of imprisonment ordered was at least one

year, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Villalva applied for cancellation of

removal, arguing that his aggravated-assault conviction did not qualify as an


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aggravated felony because his initial sentence did not include one year in prison,

and his subsequent sentence upon revocation of probation should not be counted.

Villalva later sought a § 212(h) waiver of inadmissibility. Villalva did not file an

application for adjustment of status along with his waiver application.

      The IJ denied Villalva’s application for a § 212(h) waiver and ordered him

removed to Peru. Among other things, the IJ found that Villalva’s aggravated-

assault conviction constituted an aggravated felony because his five-year sentence

upon revocation of probation counted as the original sentence for the underlying

offenses. The IJ also concluded that Villalva was ineligible for a § 212(h) waiver

under this Court’s recent decision in Poveda v. United States Attorney General,

692 F.3d 1168 (11th Cir. 2012), because he was not applying for admission,

returning to the United States, or the subject of a presently pending application for

an adjustment of status.

      Villalva appealed to the BIA, which dismissed his appeal and affirmed the

IJ’s decision. Citing its own precedent, the BIA agreed with the IJ that Villalva’s

aggravated-assault conviction qualified as an aggravated felony. The BIA likewise

agreed with the IJ that Villalva was not eligible for a § 212(h) waiver under

Poveda. Villalva timely filed a pro se petition for review with this Court, and we

granted him leave to proceed in forma pauperis and appointed him counsel.




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                                         II.

      We review questions of law de novo, including whether a conviction is an

“aggravated felony.” Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335-36 (11th

Cir. 2011). While we generally lack jurisdiction to review the Attorney General’s

decision to grant or deny a waiver, we retain jurisdiction to review the legal

question of whether Villalva was statutorily eligible to apply for a § 212(h) waiver.

Poveda, 692 F.3d at 1172.

      In assessing a petition for review, we review only the BIA’s decision, except

to the extent that the BIA expressly adopts the IJ’s opinion. Ayala v. U.S. Att’y

Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). Because the BIA agreed with the IJ’s

reasoning on the aggravated felony and § 212(h) waiver issues, we review both

decisions on these issues. See id.

                                         III.

      A resident alien may be removed from the United States as a result of a

conviction for an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). To qualify

as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), the offense must be a

result in a term of imprisonment of at least one year.

      Villalva contends that his conviction for aggravated assault with a deadly

weapon is not an aggravated felony as defined by § 1101(a)(43)(F) because his

five-year sentence imposed upon revocation of probation should not count as his


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sentence for the underlying offenses. Villalva relies on Fla. Stat. § 948.06 to argue

that, when probation is revoked, the offender is punished for different conduct—

failure to comply with the terms of probation—than the original offense. Upon

revocation, he asserts, the sentence for the original offense is eliminated, not

modified, and a new sentence is imposed. The “only relationship between the

original and subsequent sentence,” according to Villalva, “is that the court is

limited to impose a sentence within the statutory maximum allowed for the original

offense.”

      We recently addressed this same scenario in Dixon v. United States Attorney

General, ___ F. 3d ___, No. 13-11492, (11th Cir. Oct. 1, 2014). Like Villalva, the

petitioner in Dixon argued that the five-year term of imprisonment he received

upon revocation of probation was a new sentence that did not relate back to the

original, underlying offense.   We rejected Dixon’s argument for two reasons.

First, we found that “Florida law clearly holds that the sentence imposed after a

probation violation is for the original, underlying offense.” Id., manuscript op. at

4. Second, we found that the factual circumstances of the proceedings related to

Dixon’s underlying offense reflected that description of Florida law. Specifically,

we noted that Dixon was not adjudicated guilty of the underlying offense until his

probation was revoked, at which time he was sentenced to a five-year term of

imprisonment. Id., manuscript op. at 4-5.


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       Although Villalva, unlike Dixon, was “adjudicated guilty” in the underlying

judgment, that minor factual difference does not alter our conclusion that

Villalva’s five-year term of imprisonment counts as his original sentence. First,

Florida law permits courts to “[p]lace the offender on probation with or without an

adjudication of guilt.” Fla. Stat. § 921.187(1)(e). Second, as we stated in Dixon,

Florida law is clear “that the sentence imposed after a probation violation is for the

original, underlying offense.” Dixon, manuscript op. at 4; see Cozza v. State, 756

So. 2d 272, 273 (Fla. Dist. Ct. App. 2000) (“[O]nce the court revokes probation or

community control, the court resentences the offender on the original charge, and

may impose any sentence which it might have originally imposed before placing

the probationer or offender on probation or into community control.” (internal

quotation marks omitted) (citing Fla. Stat. § 948.06(2)(b)); see also Lambert v.

State, 545 So. 2d 838, 841 (Fla. 1989) (“[V]iolation of probation is not itself an

independent offense punishable at law in Florida.”). Third, consistent with Florida

law on this point, Villalva’s underlying judgment “stay[ed] and with[eld] the

imposition of sentence” pending Villalva’s completion of probation. 1

       Under relevant Florida law and upon consideration of the factual

circumstances of the proceedings on Villalva’s underlying offenses, we find that

the probation revocation and resentencing resulted in a prison term of at least one

       1
        According to state-court records, the case number on the original judgment matched the
case number on the sentencing documents issued upon the revocation of Villalva’s probation.
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year for purposes of § 1101(a)(43)(F). Therefore, the BIA properly determined

that Villalva was removable for having committed an “aggravated felony.” See 8

U.S.C. § 1227(a)(2)(A)(iii).

                                       IV.

      Villalva also argues on appeal that the agency erred in denying his “stand-

alone” application for a § 212(h) waiver of inadmissibility and in requiring a

concurrent adjustment-of-status application. He argues that this case should be

remanded to the BIA for consideration in light of the Supreme Court’s decision in

Judulang v. Holder, 565 U.S. ___, 132 S. Ct. 476 (2011), and our decision in

Lawal v. United States Attorney General, 710 F.3d 1288 (11th Cir. 2013). He also

relies on our prior decision in Yeung v. Immigration & Naturalization Service, 76

F.3d 337 (11th Cir. 1995).

      As relevant here, INA § 212(h)(1)(B) “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.” Lanier v. U.S. Att’y Gen., 631

F.3d 1363, 1365 (11th Cir. 2011).

      In Poveda, we considered whether a removable alien was eligible for a

waiver of inadmissibility under § 212(h) if he remained in the United States but

failed to apply for adjustment of status. 692 F.3d at 1171. We concluded that the


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petitioner, a lawful permanent resident, was ineligible for a waiver and held that

the BIA’s interpretation of § 212(h) was reasonable and entitled to our deference.

Id. at 1176-77. In doing so, we distinguished our prior decision in Yeung on the

basis that it addressed an interpretation of § 212(h) since “abandoned” by the BIA

in light of amendments to the INA in 1996. Id. at 1173-75.

      According to our decision in Poveda, the BIA currently interprets § 212(h)

to be available in two situations. Id. at 1173. First, “the Attorney General may

provide a waiver to an alien at the border who seeks admission, including an alien

who has departed the United States after committing a deportable offense, so long

as the alien remains outside our borders while applying for relief.” Id. Second,

“the Attorney General may provide a waiver to an alien within our borders after his

conviction for a deportable offense so long as he applies for an adjustment of

status.” Id. In other words, “an alien who remains within the United States must

apply for an adjustment of status to obtain a waiver under section 212(h).” Id. at

1173-74.

      After our decision in Poveda, we considered in Lawal whether a lawful

permanent resident who had departed the United States and re-entered after

becoming inadmissible because of a criminal conviction was eligible for a § 212(h)

waiver without concurrently filing an adjustment of status application. See Lawal,

710 F.3d at 1289. We concluded there was some ambiguity between the BIA’s


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interpretation of § 212(h), as explained by Poveda, which was decided after the

BIA’s opinion in the case, and the BIA’s prior precedent under Matter of Sanchez,

17 I. & N. Dec. 218 (BIA 1980), which treated certain aliens in the United States

as if they were outside of the border seeking admission into the United States. Id.

at 1293. Therefore, we remanded the case for the BIA to reconsider Sanchez in

light of our intervening decision in Poveda and the Supreme Court’s decision in

Judulang. Id. at 1293-94.

       Subsequently, in a separate case, the BIA concluded that its decision in

Sanchez was no longer valid in light of congressional amendments to § 212(h) after

Sanchez was decided. See Matter of Rivas, 26 I. & N. Dec. 130, 131-132 (BIA

2013).     On appeal, we upheld as reasonable the BIA’s decision to overrule

Sanchez. Rivas v. U.S. Att’y Gen., 765 F.3d 1324, 1329-30 (11th Cir. 2014).

       Here, the BIA did not err in denying Villalva’s “stand-alone” application for

a § 212(h) waiver of inadmissibility. Like the petitioner in Poveda, Villalva is not

eligible for relief under §212(h) because he remained in the United States and did

not concurrently file an application for adjustment of status. 2 Poveda, 692 F.3d at

1173, 1176. Villalva’s reliance on Judulang and Lawal is unavailing because

neither of these decisions directly contradicts the holding of Poveda. See United


       2
           Although Villalva made a fleeting and unsubstantiated reference to having filed an
application for an adjustment of status in his briefing before the BIA, there is no indication of
such a filing in the record and, further, Villalva has not renewed that claim on appeal.
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States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the

holding of a prior opinion only where that holding is overruled by the Court sitting

en banc or by the Supreme Court.” (internal quotation marks omitted)). Indeed,

Judulang dealt with discretionary relief under a different section of the INA, and

Villalva expressly concedes that he is relying on non-binding dicta in that opinion.

Lawal identified an ambiguity in the BIA’s prior precedent that, as our decision in

Rivas shows, is no longer present. Therefore, the BIA properly determined that

Villalva was not eligible for a § 212(h) waiver based on Poveda.

                                        V.

      In sum, the BIA correctly held that Villalva committed an aggravated felony

and that he was ineligible for a § 212(h) wavier based on our decision in Poveda.

Accordingly, we DENY the petition for review.




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