                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-2443
                                  ___________

Petr Spacek,                           *
                                       *
               Petitioner,             *
                                       * Petition for Review of
      v.                               * an Order of the Board
                                       * of Immigration Appeals.
Eric H. Holder, Jr.,                   *
                                       *
               Respondent.             *
                                  ___________

                              Submitted: March 13, 2012
                                  Filed: July 31, 2012
                                  ___________

Before MURPHY and GRUENDER, Circuit Judges, and ROSS,1 District Judge
                         ___________

GRUENDER, Circuit Judge.

       Petr Spacek seeks review of a Board of Immigration Appeals order finding him
ineligible for cancellation of removal and ineligible to apply for a waiver of
inadmissibility. We deny the petition for review.




      1
       The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri, sitting by designation.
I.    BACKGROUND

      Spacek was born in Czechoslovakia. He entered the United States as a refugee
on July 18, 1984 and was lawfully admitted as a permanent resident pursuant to the
Refugee Act of 1980 on October 18, 1985. Spacek was convicted of felony theft in
Minnesota in 1987, of simple assault in North Dakota in 1995, and of racketeering
in North Dakota in 2010.

       After learning of Spacek’s 2010 conviction, the Department of Homeland
Security (“DHS”) initiated removal proceedings. At a hearing before an immigration
judge (“IJ”), Spacek conceded removability, applied for cancellation of removal
pursuant to 8 U.S.C. § 1229b(a), and applied for a waiver of inadmissibility pursuant
to 8 U.S.C. § 1182(h). The IJ found Spacek eligible for both of these forms of relief,
exercised his discretion to deny Spacek a waiver of inadmissibility, and granted
Spacek cancellation of removal.

       DHS appealed the IJ’s ruling to the Board of Immigration Appeals (“BIA”),
and Spacek cross-appealed the denial of a waiver of inadmissibility. The BIA held
Spacek to be ineligible for cancellation of removal under § 1229b(a) because it found
that he had been convicted of an aggravated felony, his 2010 racketeering conviction.
It also held him to be ineligible for a § 1182(h) waiver because it found that he had
been convicted of an aggravated felony after being “admitted” to the United States
as an “alien lawfully admitted for permanent residence.” Spacek petitions for review
of the BIA’s decision on two grounds. First, he argues that his racketeering
conviction was not an aggravated felony and that he was therefore eligible for
cancellation of removal. Second, he argues that, even if his racketeering conviction
was an aggravated felony, he would still be eligible for a waiver of inadmissibility
because he was not “admitted” to the United States as “an alien lawfully admitted for
permanent residence” before the conviction.



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II.   DISCUSSION

       “We review the BIA’s decision, as it is the final agency decision; however, to
the extent that the BIA adopted the findings or the reasoning of the IJ, we also review
the IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531
F.3d 624, 627 (8th Cir. 2008). We review the BIA’s legal determinations de novo,
but we accord “substantial deference to the BIA’s interpretation of the statutes and
regulations it administers.” Id.

      A.     Cancellation of Removal

       Section 1229b(a) authorizes the Attorney General to cancel removal of certain
aliens provided that they have “not been convicted of any aggravated felony.”
§ 1229b(a)(3). An “aggravated felony” is defined as including “an offense described
in section 1962 of title 18, United States Code,” which prohibits racketeering activity
affecting interstate or foreign commerce. 8 U.S.C. § 1101(a)(43)(J). The BIA held
Spacek’s North Dakota racketeering conviction to be an aggravated felony under
§ 1101(a)(43)(J). Spacek contends that the conviction is not “an offense described
in” 18 U.S.C. § 1962 because neither the North Dakota racketeering statute nor the
actions for which he was convicted included an interstate or foreign commerce
element as does § 1962. See N.D. Cent. Code 12.1-06.1-03.

       We are not the first court to address whether a state offense is required to have
a jurisdictional nexus equivalent to its federal counterpart to be “described” by a
federal statute for purposes of § 1101(a)(43). The Ninth Circuit has held that a
California felon-in-possession-of-a-firearm statute qualifies as an aggravated felony
for § 1101(a)(43) purposes because the interstate commerce element of its federal
counterpart “is merely a jurisdictional basis not essential to whether the state crime
is an aggravated felony.” United States v. Castillo-Rivera, 244 F.3d 1020, 1023 (9th
Cir. 2001) (quoting United States v. Sandoval-Barajas, 206 F.3d 853, 856 (9th Cir.

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2000)). “The wording of 8 U.S.C. § 1101(a)(43) makes evident that Congress clearly
intended state crimes to serve as predicate offenses for the purpose of defining what
constitutes an aggravated felony,” and

      [i]nterpreting the jurisdictional element . . . to be necessary in order for
      a state [offense] to constitute an aggravated felony . . . would reduce the
      number of state [offenses] that qualify to no more than a negligible
      number. . . . If we were to construe the jurisdictional nexus of the
      federal . . . provision to be a necessary element for a state crime to
      qualify as an aggravated felony, we would undermine the language of
      the aggravated felony statute and the evident intent of Congress.

Id. at 1023-24. The BIA has adopted the Ninth Circuit’s reasoning, see In re
Vasquez-Muniz, 23 I. & N. Dec. 207, 209-12 (BIA 2002) (en banc), as have the Fifth
and Seventh Circuits, see Nieto Hernandez v. Holder, 592 F.3d 681, 684-86 (5th Cir.
2009); Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 500-03 (7th Cir. 2008). We
agree with our sister circuits and the BIA.

       “The requirement of an interstate nexus arises from constitutional limitations
on congressional power over intrastate activities under the Commerce Clause. Its
inclusion in criminal and civil statutes is most often solely for the purpose of
conferring federal jurisdiction rather than of defining substantive elements of an
offense.” United States v. Bryant, 766 F.2d 370, 375 (8th Cir. 1985).
Section 1101(a)(43)(J) requires only “an offense described in section 1962 of title
18” (emphasis added), while Congress used the more restrictive construction “as
defined in” elsewhere in the statute, see 8 U.S.C. § 1101(a)(43)(B), (C), (F) (emphasis
added). See Nieto Hernandez, 592 F.3d at 685-86. Additionally, the penultimate
sentence of § 1101(a)(43) states that the term aggravated felony “applies to an offense
described in this paragraph whether in violation of Federal or State law,” while few
if any state criminal provisions include a jurisdictional nexus of the sort found in 18
U.S.C. § 1962. See id. Our presumption that interstate commerce nexuses are
jurisdictional and not substantive elements of federal criminal statutes, see Bryant,
                                            -4-
766 F.2d at 375, the “described in” language, and our interpretive duty to give effect
to the “State law” verbiage in the penultimate sentence all militate against Spacek’s
reading of § 1101(a)(43)(J) to require a state racketeering offense to have an interstate
or foreign commerce element to qualify as an aggravated felony. We agree with the
BIA that Spacek’s racketeering conviction was an aggravated felony and that he was
therefore ineligible for cancellation of removal under § 1229b(a).

      B.     Waiver of Inadmissibility

       Under 8 U.S.C. § 1182(h), the Attorney General may waive inadmissibility for
aliens who meet certain requirements. He may not, however, grant a waiver “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.” Id. (emphasis added). “The terms
‘admission’ and ‘admitted’ mean, 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). “The term ‘lawfully admitted for permanent
residence’ means 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.” 8 U.S.C. § 1101(a)(20).

       Spacek contends that, because at the time he first “lawfully entered” the United
States he was not “lawfully admitted for permanent residence,” his subsequent
aggravated felony does not disqualify him from seeking a § 1182(h) waiver. He
argues that any other reading of the statute would not give effect to the statute’s
repetition of the word “admitted.” The Fourth, Fifth, Ninth, and Eleventh Circuits
have endorsed this reading of the statute. See Bracamontes v. Holder, 675 F.3d 380,
386-87 (4th Cir. 2012); Lanier v. U.S. Att’y Gen., 631 F.3d 1363, 1366-67 (11th Cir.
2011); Hing Sum v. Holder, 602 F.3d 1092, 1097 (9th Cir. 2010); Martinez v.
Mukasey, 519 F.3d 532, 546 (5th Cir. 2008) (“Accordingly, we hold: for aliens who

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adjust post entry to [legal permanent resident] status, [§ 1182(h)’s] plain language
demonstrates unambiguously Congress’ intent not to bar them from seeking a waiver
of inadmissibility.”).

        We need not decide this question, however, because even under Spacek’s
preferred reading of § 1182(h) he still would be ineligible for a waiver. Unlike the
aliens in the cases from our sister circuits, Spacek adjusted his status after his arrival
pursuant to the Refugee Act, 8 U.S.C. § 1159. Section 1159(a)(1) provides, inter
alia, that those adjusting their status under § 1159 “shall . . . return . . . to the custody
of the Department of Homeland Security for inspection and examination for
admission to the United States” (emphasis added). Section 1159(a)(1) incorporates
the same definitions as § 1182(h), so “admission” under the former is equivalent to
“admission” under the latter. Because Spacek was “lawfully admitted for permanent
residence” at the time of his “admission” under § 1159(a)(1), his subsequent
aggravated felony disqualifies him from seeking a § 1182(h) waiver of
inadmissibility.

III.   CONCLUSION

       For the foregoing reasons, we deny the petition for review of the BIA’s order.
                       ______________________________




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