                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                    February 24, 2015

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court


CARLOS JOVANY MEDINA-
ROSALES,

             Petitioner,                                    No. 14-9541

v.

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.


        PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF
                      IMMIGRATION APPEALS


Submitted on the briefs:*

Christi J. Giddeon, Christi J. Giddeon, PLLC, Oklahoma City, Oklahoma, for
Petitioner.

Ernesto H. Molina, Jr., Assistant Director, and Sheri R. Glaser, Trial Attorney, Office
of Immigration Litigation, Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.



Before KELLY, BALDOCK, and MORITZ, Circuit Judges.

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
KELLY, Circuit Judge.


      Carlos Jovany Medina-Rosales, a native and citizen of Mexico who adjusted

his status to that of a lawful permanent resident (LPR) of the United States, petitions

for review of the Board of Immigration Appeals’ (BIA) decision dismissing his

appeal from the Immigration Judge’s (IJ) removal decision. The IJ found, and the

BIA agreed, that Mr. Medina-Rosales was ineligible for a waiver of inadmissibility

under 8 U.S.C. § 1182(h) because he had been convicted of an aggravated felony.

Based on the clear and unambiguous language of § 1182(h), we conclude that

Mr. Medina-Rosales is eligible for a waiver of inadmissibility. Accordingly, we

grant the petition for review and remand to the BIA with instructions to remand to

the IJ for further proceedings.

                                   BACKGROUND

      Mr. Medina-Rosales entered the United States on an unknown date. He

received adjusted status as an LPR on November 27, 2001. On August 8, 2013, while

residing in Oklahoma, he was convicted of grand larceny in Oklahoma state court.

The following month, the Department of Homeland Security (DHS) began removal

proceedings by issuing a Notice to Appear, informing him that he was subject to

removal under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an

aggravated felony. The Notice ordered him to appear before an IJ in Dallas, Texas,

even though the issuing officer was in Tulsa, Oklahoma. About two months later,

                                          -2-
Mr. Medina-Rosales was issued a Notice of Hearing stating that a master hearing

would be held before an IJ in Tulsa.

      The Dallas-based IJ indeed held video conference hearings with

Mr. Medina-Rosales and his counsel, who were in Tulsa. Mr. Medina-Rosales

conceded removability, but sought a waiver of inadmissibility under § 1182(h) in

conjunction with an application for adjustment of status as a minor under 8 U.S.C.

§ 1255(a). The IJ issued an oral decision, ordering Mr. Medina-Rosales’ removal and

pretermitting and denying his applications for waiver of inadmissibility and

adjustment of status. The IJ rejected his argument that Fifth Circuit law applied,

deciding, instead, that Tenth Circuit law applied because the case arose in Tulsa,

even though the IJ was located in Dallas and proceedings were conducted by video

conference. Next, the IJ determined that Mr. Medina-Rosales was ineligible for a

waiver of inadmissibility, and, by extension, adjustment of status, because he had

been convicted of the aggravated felony of grand larceny after acquiring LPR status.

In making this determination, the IJ applied In re Rodriguez, 25 I. & N. Dec. 784,

789 (BIA 2012), which held that any alien convicted of an aggravated felony after

becoming an LPR, regardless of when or how that status was acquired, is ineligible

for a waiver of inadmissibility under § 1182(h). The BIA dismissed

Mr. Medina-Rosales’ appeal.1



1
      The BIA’s caption notes that the file is located in Tulsa.


                                         -3-
                                      ANALYSIS

1. Choice of Law

      Mr. Medina-Rosales petitioned for review in this court. See 8 U.S.C.

§ 1252(b)(2) (“The petition for review shall be filed with the court of appeals for the

judicial circuit in which the immigration judge completed the proceedings.”).

Nevertheless, he continues to argue that Fifth Circuit law applies to his proceedings.

Fifth Circuit law, unlike Rodriguez, holds that LPRs who acquire that status after

living in the United States and who later are convicted of an aggravated felony are

eligible for consideration for a waiver of inadmissibility under § 1182(h).

See Martinez v. Mukasey, 519 F.3d 532, 541-46 (5th Cir. 2008). The Tenth Circuit,

in contrast, has not yet considered the issue.

      We review this legal, choice-of-law question de novo. See Fernandez-Vargas

v. Ashcroft, 394 F.3d 881, 884 (10th Cir. 2005) (reviewing legal question de novo).

And we conclude that the agency correctly applied Tenth, not Fifth, Circuit law.

      “Jurisdiction vests, and proceedings before an [IJ] commence, when” the DHS

files a charging document with the Immigration Court. 8 C.F.R. § 1003.14(a). The

Immigration Court that creates and maintains the records for a particular geographic

area is called the Administrative Control Immigration Court. See id. § 1003.11.

“When a charging document is filed with an Administrative Control Immigration

Court pursuant to . . . § 1003.11, the proceedings may actually take place in a

location other than where the charging document is filed.” U.S. Dep’t of Justice,


                                          -4-
Exec. Office for Immigration Rev., Office of the Chief IJ, Interim Operating Policies

& Procedures Mem. No. 04-06: Hr’gs Conducted through Tel. & Video Conf., at 2

(Aug. 18, 2004), available at

http://www.justice.gov/eoir/efoia/ocij/oppm04/04-06.pdf. The charging document

establishes the hearing location, regardless of the location of the IJ and the holding of

a video conference hearing. See id. Also, the law of the circuit where the video

conference hearing is held is the applicable law. See id.

      The Immigration Court in Dallas is the Administrative Control Immigration

Court with jurisdiction over immigration proceedings in Tulsa. See U.S. Dep’t of

Justice, Office of the Chief IJ, Immigration Ct. Admin. Control List,

http://www.justice.gov/eoir/vll/courts3.htm#Dallas. Thus, the charging document,

the Notice to Appear, appropriately was filed in the Immigration Court in Dallas.

The IJ’s presence in Dallas and the fact that proceedings were conducted by video

conference did not change the place of the hearings from Tulsa to Dallas. Because

Tulsa is in the Tenth Circuit, Tenth Circuit law applies. Cf. Sholla v. Gonzales,

492 F.3d 946, 948, 950-52 (8th Cir. 2007) (applying Eighth Circuit law where venue

was in Missouri, but video conference hearing was held with IJ located in Louisiana).

2. Eligibility for a Waiver of Inadmissibility Under § 1182(h)

      Agreeing that Tenth Circuit law applies, the government, however, contends

that we should defer to the agency’s application of the Rodriguez decision and its

holding that Mr. Medina-Rosales was not eligible for a waiver of inadmissibility


                                          -5-
under § 1182(h). Unlike many other circuits, we have not addressed a post-entry

LPR’s eligibility to seek a waiver of inadmissibility under § 1182(h) and therefore

have not decided whether Rodriguez controls in the Tenth Circuit.2

      We review issues of statutory construction de novo. See Barrera-Quintero v.

Holder, 699 F.3d 1239, 1243 (10th Cir. 2012). In doing so, we look first to the

language of the statute. If the language is not ambiguous, we need not defer to the

agency’s interpretation. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002)

(citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43

(1984)).

      In relevant part, § 1182(h) provides that “[n]o 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.” Eight

circuits—the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh—

have held that this language clearly and unambiguously precludes eligibility for a

waiver after conviction of an aggravated felony only if the alien received LPR status

at the time the alien lawfully entered the United States, but it does not apply to an

alien who obtained LPR status after having been present in the United States before


2
      In Latu v. Ashcroft, 375 F.3d 1012, 1020-21 (10th Cir. 2004), we upheld an
equal protection challenge to § 1182(h), recognizing that “aliens who have not been
admitted for permanent residence are eligible to apply for a waiver.” The holding in
Latu was limited to that narrow issue.


                                          -6-
acquiring that status. See Husic v. Holder, ___ F.3d ___, 2015 WL 106359, at *2-*8

(2nd Cir. Jan. 8, 2015); Stanovsek v. Holder, 768 F.3d 515, 516, 517-19 (6th Cir.

2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050-54 (9th Cir. 2014);

Papazoglou v. Holder, 725 F.3d 790, 792-94 (7th Cir. 2013); Leiba v. Holder,

699 F.3d 346, 348-56 (4th Cir. 2012); Hanif v. Att’y Gen., 694 F.3d 479, 483-87

(3rd Cir. 2012); Bracamontes v. Holder, 675 F.3d 380, 382, 384-89 (4th Cir. 2012);

Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1365-67 (11th Cir. 2011); Martinez,

519 F.3d at 541-46.

      The Eighth Circuit disagrees. See Roberts v. Holder, 745 F.3d 928 (8th Cir.

2014) (per curiam). Roberts “h[e]ld that § 1182(h) is ambiguous as to the meaning of

‘previously been admitted as an alien lawfully admitted for permanent residence,’”

and therefore “defer[red] to the BIA’s . . . construction of the statute.” Id. at 932.

      Relying on Roberts, the government argues that there should be no distinction

between persons lawfully admitted upon first arrival and persons later adjusted to

LPR status, because the immigration statutes in their entirety do not consistently use

the words “admitted” and “admission.” See id. at 932-33. Also, the government

maintains that 8 U.S.C. § 1255(b) treats adjustment as an “admission” and thus the

statute “‘may be fairly read as treating post-entry adjustment as a substitute for

port-of-entry inspection.’” Aplee. Br. at 31-33 (quoting Roberts, 745 F.3d at 933).

We reject these arguments.




                                           -7-
       Section 1182(h) states that an alien is ineligible for a waiver if he “has

previously been admitted to the United States” and he was “lawfully admitted for

permanent residence.” “[A]dmitted” and “admission” 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). This definition

“is limited and does not encompass a post-entry adjustment of status,” because it

“refers expressly to entry into the United States, denoting by its plain terms passage

into the country from abroad at a port of entry.” Negrete-Ramirez, 741 F.3d at 1051;

see Papazoglou, 725 F.3d at 793 (“That provision therefore encompasses the action

of an entry into the United States, accompanied by an inspection or authorization.”);

Bracamontes, 675 F.3d at 385 (“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.”); Martinez, 519 F.3d at 544

(recognizing that “‘admission’ is the lawful entry of an alien after inspection,

something quite different . . . from post-entry adjustment of status”). Under the

definition, Mr. Medina-Rosales was not “admitted” when he became an LPR after

post-entry adjustment of status, because he did not enter the United States when he

adjusted to that status.

       In comparison, “lawfully admitted for permanent residence” is defined as “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, such status


                                          -8-
not having changed.” 8 U.S.C. § 1101(a)(20). “This term encompasses all LPRs,

regardless of whether they obtained that status prior to or at the time they physically

entered the United States or by adjusting their status while already living in the

United States.” Negrete-Ramirez, 741 F.3d at 1053; see also Lanier, 631 F.3d at

1366 (recognizing definition refers to immigration status, regardless of how or when

it was obtained). “Adjustment is the change of an alien’s status to ‘that of an alien

lawfully admitted for permanent residence.’” Husic, 2015 WL 106359, at *5 (citing

8 U.S.C. § 1255(a)). But adjustment of status is not an admission. See id. (citing

Bracamontes, 675 F.3d at 386-87). Thus, Mr. Medina-Rosales was not “admitted” to

the United States when his status was adjusted.

      Reading § 1182(h) along with the definitions of these relevant terms, we

conclude, like the majority of circuits, that only persons who obtained LPR status

before or when they entered the United States are barred from seeking a waiver under

§ 1182(h). Negrete-Ramirez, 741 F.3d at 1053 (collecting cases); see Stanovsek,

768 F.3d at 516 (recognizing “distinction is very hard to see,” but concluding that

statutory language clearly excludes those who adjust to LPR).

      If the term “admitted” in the phrase “previously been admitted”
      included post-entry adjustment of status to an LPR, as proposed by the
      government, the first section of the statutory language, “an alien who
      has previously been admitted to the United States as,” would be
      superfluous because the definition of “lawfully admitted for permanent
      residence” encompasses adjustment of status. . . . Had Congress
      intended the bar on eligibility to apply to all LPRs, it would have simply
      omitted this phrase. Furthermore, construing the statute to bar from
      eligibility only LPRs who entered into the United States in such status is


                                          -9-
      bolstered by the longstanding principle of construing any lingering
      ambiguities in deportation statutes in favor of the alien.

Negrete-Ramirez, 741 F.3d at 1053-54 (internal quotation marks omitted). The fact

that both “admitted” and “lawfully admitted to the United States for permanent

residence” are used together indicates that Congress intended that they serve different

purposes. See Leiba, 699 F.3d at 355; see also Bracamontes, 675 F.3d at 386 (“[I]f

Congress intended [§ 1182(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.’”).

      Nor does § 1255(b) treat adjustment of status as an “admission.” See Husic,

2015 WL 106359, at *6; Stanovsek, 768 F.3d at 519; Hanif, 694 F.3d at 485;

Martinez, 519 F.3d at 546. Section 1255(b) states that “[u]pon the approval of an

application for adjustment made under subsection (a) of this section, the Attorney

General shall record the alien’s lawful admission for permanent residence as of the

date the order of the Attorney General approving the application for the adjustment

of status is made.” The statute is not “an effort by Congress to amend the definitions

of ‘admitted’ and ‘lawfully admitted for permanent residence’ set forth in § 1101(a).”

Hanif, 694 F.3d at 485. Rather, it “refers to the date an alien attains lawful

permanent resident status.” Stanovsek, 768 F.3d at 519. Indeed, “lawful admission

for permanent residence” in § 1255(b) is nearly the same as “lawfully admitted for

permanent residence” as used in § 1182(h) and defined in § 1101(a)(2). See Husic,

2015 WL 106359, at *6.

                                         - 10 -
       Additionally, the government argues that the interpretation adopted by the

majority of circuit courts creates the absurd result “that the only alien who is barred

from seeking a [§ 1182(h)] waiver is one who lawfully entered the United States as a

lawful permanent resident.” Aplee. Br. at 37. It contends that favoring one category

of LPRs over another is arbitrary, and there is no reason why Congress would favor

an LPR adjustment alien over an LPR admission alien.

       We agree with the Sixth Circuit’s rejection of a similar argument:

              We recognize that the BIA’s interpretation of the Act would
       avoid a reading that appears to make little sense. Why would Congress
       distinguish between those who obtained lawful permanent resident
       status at the time of lawful entry and those who adjusted status later, for
       purposes of barring permanent residents who have committed
       aggravated felonies from discretionary hardship relief? Our inability to
       answer such a question does not, however, warrant expanding the scope
       of a statutory provision beyond a meaning as plainly limited as the one
       in question here. Absent a constitutional argument (none is made here),
       we must apply the clear meaning of the Act.

Stanovsek, 768 F.3d at 520. Furthermore, “[t]he fact that Congress may not have

foreseen all of the consequences of a statutory enactment is not a sufficient reason for

refusing to give effect to its plain meaning.” Lockhart v. United States, 546 U.S.

142, 146 (2005) (internal quotation marks omitted). If Congress intended LPRs who

adjust to that status after entry to be ineligible for a waiver, it must amend § 1182(h).

See Bracamontes, 675 F.3d at 389. Yet Congress has not done so, despite the fact

that various circuits beginning in 2008 have not agreed with the government’s

interpretation of the statute.



                                          - 11 -
                                   CONCLUSION

      Because we agree with the majority of circuits, we hold that under the clear

language of § 1182(h), an LPR in Mr. Medina-Rosales’ position is eligible for

discretionary consideration for waiver of inadmissibility under § 1182(h). The

petition for review therefore is granted and the case is remanded for further

proceedings.




                                         - 12 -
