                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 PHILIP CHI YAN MAN,                                Nos. 13-70840
                                   Petitioner,           16-70732
                                                         17-70054
                       v.
                                                      Agency No.
 WILLIAM P. BARR, Attorney General,                  A075-538-479
                         Respondent.
                                                        OPINION

            On Petition for Review of Orders of the
                Board of Immigration Appeals

            Argued and Submitted March 15, 2019
                 San Francisco, California

                      Filed October 24, 2019

     Before: J. Clifford Wallace, Eugene E. Siler, * and
         M. Margaret McKeown, Circuit Judges.

                       Per Curiam Opinion




    *
      The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2                          MAN V. BARR

                          SUMMARY **


                           Immigration

     Denying Philip Man’s petitions for review of three
orders of the Board of Immigration Appeals, the panel held
that, in removal proceedings commenced against a non-
citizen after the non-citizen has already entered the country,
an Immigration Judge lacks authority to grant the non-citizen
a U visa waiver of inadmissibility under 8 U.S.C.
§ 1182(d)(3)(A)(ii).

    In one order on review, the Board dismissed Man’s
appeal of an IJ’s denial of Man’s application for adjustment
of status, concluding that Man’s conviction under California
Health and Safety Code § 11359 was a drug trafficking
aggravated felony that made him inadmissible and ineligible
for adjustment of status. The panel denied Man’s petition
for review of this order, noting that Man acknowledged that
his petition was controlled by Roman-Suaste v. Holder, 766
F.3d 1035 (9th Cir. 2014).

    In the other two orders on review, the Board denied
Man’s requests to reopen his removal proceedings so that he
could seek a waiver of inadmissibility to obtain a U visa. In
relevant part, the Board denied reopening on the ground that
an IJ would lack authority to consider Man’s request for a U
visa waiver if his case were reopened. In doing so, the Board
relied on Matter of Khan, 26 I. & N. Dec. 797 (BIA 2016),
which held that an IJ lacks authority to grant a waiver of

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                       MAN V. BARR                          3

inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii) to a
petitioner for a U visa who is in the United States.

    Noting that Matter of Khan is entitled to deference if the
relevant statutory provisions are ambiguous and the holding
is reasonable, the panel concluded that ambiguity reigns
here: Congress has not explained how to reconcile its grant
of a specific inadmissibility waiver and sole grant of U visa
adjudicatory power to the Secretary of Homeland Security,
8 U.S.C. § 1182(d)(14), with the pre-existing inadmissibility
waiver power vested in the Attorney General for aliens who
are seeking admission, 8 U.S.C. § 1182(d)(3)(A)(ii).

    The panel also agreed with the Board’s reasoning in
Matter of Khan, noting that the Board explained that: 1) it
had previously held that an IJ’s authority to adjudicate
waivers under § 1182(d)(3)(A)(ii) is limited to when an
inadmissible nonimmigrant alien seeking admission at a port
of entry has been denied a waiver and has been placed in
proceedings where a waiver request has been renewed before
the IJ; and 2) the conditions under which the Attorney
General has delegated authority to IJs to adjudicate such
waivers are circumscribed by regulations that limit an IJ’s
authority to adjudicate the waiver to narrow and specific
circumstances that are inapplicable to a petitioner for a U
visa.

   With its holding, the panel joined the Third Circuit,
which considered this question and came to the same
conclusion as the Board, and the panel declined to follow the
contrary approach of the Seventh and Eleventh Circuits.
4                     MAN V. BARR

                       COUNSEL

Zachary Nightingale (argued) and Amalia Wille, Van Der
Hout Brigagliano & Nightingale LLP, San Francisco,
California, for Petitioner.

Tim Ramnitz (argued), Attorney; Greg D. Mack, Senior
Litigation Counsel; Terri J. Scadron, Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.

Andrew Yaphe and Serge Voronov, Davis Polk & Wardwell
LLP, Menlo Park, California; Sharon Katz, Davis Polk &
Wardwell LLP, New York, New York; Jayashri Srinkantiah,
Stanford Law School, Stanford, California; Iylce Shugall,
Community Legal Services in East Palo Alto, East Palo Alto,
California; Carmen Maria Rey, Sanctuary for Families, New
York, New York; for Amici Curiae Asista, Asian Pacific
Institute on Gender-Based Violence, California Partnership
to End Domestic Violence, Freedom Network USA, Her
Justice, National Network to End Domestic Violence, New
York State Coalition Against Domestic Violence, and
National Immigrant Justice Center.


                        OPINION

PER CURIAM:

    In this consolidated action, Philip Man petitions for
review of three orders issued by the Board of Immigration
Appeals (“Board”). One order dismissed Man’s appeal of
the Immigration Judge’s (“IJ”) denial of Man’s application
for adjustment of status under § 245(a) of the Immigration
                        MAN V. BARR                          5

and Nationality Act (“INA”), 8 U.S.C. § 1255(a). Two
orders denied Man’s requests to reopen his removal
proceedings so that he could seek a waiver of inadmissibility
to obtain a U visa. We deny all three petitions.

   I. Adjustment of Status

    Man acknowledges that his petition with respect to
adjustment of status is controlled by Roman-Suaste v.
Holder, 766 F.3d 1035 (9th Cir. 2014). There, we held that
convictions under California Health and Safety Code
(“CHSC”) § 11359 categorically constitute drug trafficking
aggravated felonies under the INA. Id. at 1037. The Board
held that Man’s conviction under CHSC § 11359, therefore,
rendered him inadmissible, 8 U.S.C. § 1182(a)(2)(A)(i)(II),
and ineligible for adjustment of status, 8 U.S.C. § 1255(a).
As a consequence, the Board dismissed Man’s appeal,
stating that he was “not statutorily eligible for adjustment of
status.” We deny Man’s petition for review of the Board’s
dismissal of his appeal.

   II. Motions to Reopen to Consider U Visa

    The U visa permits non-citizen victims of certain crimes
who have suffered “substantial physical or mental abuse” to
remain in the United States if they are likely to be helpful in
the investigation or prosecution of a crime. 8 U.S.C.
§ 1101(a)(15)(U). Man’s U visa petition was based on
assistance to law enforcement related to a gang shooting. A
non-citizen like Man, who is inadmissible due to an
aggravated felony, may nonetheless seek a waiver from the
United States Citizenship and Immigration Services
(“USCIS”), which is part of the Department of Homeland
Security (“DHS”).
6                      MAN V. BARR

    Man filed his first motion to reopen in May 2013. Two
months later, the Board denied the motion in part because
Man’s aggravated felony precluded him from seeking a
waiver of inadmissibility. The Board also stated that a
motion to reopen was unnecessary because he could request
a U visa from USCIS, which has exclusive jurisdiction over
the U visa.

    Following this order, USCIS denied Man’s pending
Petition for U Nonimmigrant Status on the ground that he
was inadmissible and it further declined to exercise
discretion to approve a waiver of inadmissibility “as a matter
of national or public interest.” After Man submitted
additional evidence, USCIS reconsidered the decision, but
ultimately upheld the initial denial.

    Man then filed a second and untimely motion to reopen,
which the Board denied on February 2016. Apart from
denying the motion based on the temporal and numerical
limitations, the Board rejected Man’s argument that an IJ has
independent authority to adjudicate an application for waiver
of admissibility. Man filed a third motion to reopen
predicated on the same grounds and, alternatively, seeking
sua sponte reopening. On December 17, 2016, the Board
denied the motion as time and number barred and declined
to exercise its discretionary authority. We review for abuse
of discretion the Board’s denials of Man’s motions to reopen
and consider whether the denials were “arbitrary, irrational,
or contrary to law.” Go v. Holder, 744 F.3d 604, 609 (9th
Cir. 2014) (internal quotation marks and citations omitted).

    Man claims the Board erred under this standard because
it erroneously concluded that an IJ lacks jurisdiction to
consider Man’s request for a U visa waiver if his case was
reopened. These petitions for review of the denials of the
motions to reopen thus turn on the following question: In
                           MAN V. BARR                               7

removal proceedings commenced against a non-citizen after
the non-citizen has already entered the country, does an IJ
have the authority to grant the non-citizen a U visa waiver of
inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii)? The
answer to that question is no.

   Two provisions of the INA provide the statutory
underpinnings of our analysis. DHS’s authority to grant a
waiver of inadmissibility is undisputed:

        The Secretary of Homeland Security shall
        determine     whether      a     ground       of
        inadmissibility exists with respect to a
        nonimmigrant      described      in    section
        1101(a)(15)(U) of this title. The Secretary of
        Homeland Security, in the Attorney
        General’s discretion, 1 may waive the
        application of subsection (a) of this section
        [outlining grounds for inadmissibility] . . . in
        the case of a nonimmigrant described in
        section 1101(a)(15)(U) of this title, if the
        Secretary of Homeland Security considers it
        to be in the public or national interest to do
        so.

8 U.S.C. § 1182(d)(14). Man sought a waiver from DHS
through USCIS and was rejected.

   A separate waiver provision outlines the authority of the
Attorney General to grant a waiver of inadmissibility:


    1
      The reference to “Attorney General’s discretion” appears to be an
error by the codifier. L.D.G. v. Holder, 744 F.3d 1022, 1025 (7th Cir.
2014); see 8 U.S.C. § 1182 n.4.
8                       MAN V. BARR

       [A]n alien . . . who is inadmissible under
       subsection (a) of this section [outlining
       grounds for inadmissibility] . . . but who is in
       possession of appropriate documents or is
       granted a waiver thereof and is seeking
       admission, may be admitted into the United
       States temporarily as a nonimmigrant in the
       discretion of the Attorney General. The
       Attorney General shall prescribe conditions,
       including exaction of such bonds as may be
       necessary, to control and regulate the
       admission and return of inadmissible aliens
       applying for temporary admission under this
       paragraph.

8 U.S.C. § 1182(d)(3)(A)(ii).

    In reconciling these provisions, in Matter of Khan, the
Board told us that “the regulations do not give Immigration
Judges authority to grant a waiver of inadmissibility under
section 212(d)(3)(A)(ii) of the Act to a petitioner for
U nonimmigrant status who is in the United States.” 26 I &
N Dec. 797, 803 (BIA 2016). That decision rests on the
Board’s interpretation of provisions in the INA, and is
entitled to deference if the provisions are ambiguous and the
holding is reasonable. Negusie v. Holder, 555 U.S. 511, 521
(2009). Here, ambiguity reigns: Congress has not explained
how to reconcile its grant of a specific inadmissibility waiver
and sole grant of U visa adjudicatory power to the Secretary
of Homeland Security with the pre-existing inadmissibility
waiver power vested in the Attorney General for aliens who
are seeking admission. See 8 U.S.C. § 1101(a)(15)(U);
§ 1182(d)(14); § 1182(d)(3)(A)(ii).
                        MAN V. BARR                           9

    In the Board’s view, “legislative intent as to the interplay
between the waivers in section 212(d)(3)(A)(ii) and section
212(d)(14) is unclear.” Matter of Khan, 26 I & N Dec. at
802. The Board approached the ambiguity in two steps. To
begin, the Board stated that it previously held that the
delegated authority of IJs to adjudicate waivers under
§ 1182(d)(3)(A)(ii) is “limited to when an inadmissible
nonimmigrant alien seeking admission at a port of entry has
been denied a waiver and has been placed in exclusion or
removal proceedings where a waiver request has been
renewed before the Immigration Judge.” Id. at 802
(emphasis added).

    Next, the Board explained that the conditions under
which the Attorney General has delegated authority to IJs to
adjudicate waivers of inadmissibility under 8 U.S.C.
§ 1182(d)(3)(A)(ii) are circumscribed by 8 C.F.R.
§§ 212.4(b), 235.2(d), 1212.4(b), and 1235.2(d) (2016). Id.
These regulations specify that aliens may seek a waiver by
submitting documentation “to the district director in charge
of the alien’s arrival in the United States and that an alien
may renew his or her application before the Immigration
Judge in the context of a deferred inspection after the waiver
has been denied at the port of entry.” Id. at 801. Thus, the
Board reasoned, “the regulations limit the Immigration
Judge’s authority to adjudicate an inadmissible
nonimmigrant’s request for a section 212(d)(3)(A)(ii)
waiver to narrow and specific circumstances that are
inapplicable to a petitioner for U nonimmigrant status.” Id.
at 802. That conclusion follows because the deferred
inspection context involves aliens arriving in the United
States, whereas aliens seeking U nonimmigrant status
already are “physically in the United States.” Id. at 802–03.
As a result, “Immigration Judges lack the authority to
consider a request by a petitioner for U nonimmigrant status
10                     MAN V. BARR

for a waiver under section 212(d)(3)(A)(ii) of the Act.” Id.
at 803. We agree.

    Although we have not previously addressed whether an
IJ has jurisdiction over an inadmissibility waiver request by
a non-citizen already in the United States, we join the Third
Circuit, which considered this question and came to the same
conclusion as the Board. In Sunday v. Attorney General
United States of America, the Third Circuit held that the
Attorney General’s authority extends only over those
“seeking admission.” 832 F.3d 211, 214 (3d Cir. 2016).
Authority pursuant to section 1182(d)(3)(A)(ii) “[b]y
definition” excludes “individuals who have already lawfully
entered,” because it contains “the phrase ‘and is seeking
admission.’” Id. We observe the court determined at the
outset that this statutory language is not ambiguous and
further reasoned that “DOJ’s immigration regulations
restrict the IJ’s § 1182(d)(3)(A)(ii) waiver jurisdiction to
instances where a waiver request was first made to a district
director (who is part of DHS) prior to an individual’s arrival
to the United States.” Id. at 215 (emphasis added); see
8 C.F.R. §§ 1212.4(b), 1235.2(d). The conclusion in Sunday
is persuasive and consistent with the statutory text and the
Board’s conclusion.

    In contrast, the Seventh Circuit held that “section
1182(d)(3)(A) permits the Attorney General to waive the
inadmissibility of U Visa applicants.” L.D.G. v. Holder,
744 F.3d 1022, 1030 (7th Cir. 2014). However, L.D.G. was
grounded on everything but the language of
§ 1182(d)(3)(A). The Seventh Circuit based its holding on
the fact that the later-enacted § 1182(d)(14) had not
“effected a partial implied repeal” of the Attorney General’s
power under subsection (d)(3)(A); the policy rationale of
“efficiency advantages” may be promoted by IJs
                            MAN V. BARR                           11

adjudicating inadmissibility waiver requests; and the
language of § 1182(d)(4) did not preclude a concurrent
jurisdiction to adjudicate inadmissibility waivers. Id.
at 1030–32. Crucially, in L.D.G. the court did not analyze
§ 1182(d)(3)(A)(ii)’s language limiting the Attorney
General’s jurisdiction over inadmissibility waivers to
requests by non-citizen “seeking admission.” Without
independent analysis, the Eleventh Circuit simply agreed
with the Seventh Circuit. See Meridor v. U.S. Attorney Gen.,
891 F.3d 1302, 1307 (11th Cir. 2018). We decline to follow
the approach of the Seventh and the Eleventh Circuits.

    Man has not identified any reason to displace the Board’s
interpretation of § 1182(d)(3)(A)(ii).             As Man
acknowledges, he has been in the United States since 1997,
and is not seeking a waiver during the deferred inspection
process. Thus, the Board’s denials of his motions to
reopen—the latter of which was issued after Matter of Khan
and relied explicitly on the Board’s reasonable interpretation
of the INA—were not “arbitrary, irrational, or contrary to
law.” See Go, 744 F.3d at 609. We therefore deny Man’s
petitions for review of the denials of his two requests to
reopen his removal proceedings. 2

    PETITIONS DENIED.




    2
         We examined Man’s other claims and conclude they are without
merit.
