     06-3717-ag
     Batista v. Gonzales

1                           UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                 August Term, 2006

4    (Argued:    June 21, 2007                         Decided: July 10, 2007)

5                               Docket No. 06-3717-ag

6                    -------------------------------------

7                          DAMALIS PEREZ SURIEL DE BATISTA,

8                                    Petitioner,

9                                       - v -

10                                ALBERTO GONZALES,1

11                                   Respondent.

12                   -------------------------------------

13   Before:     MINER, SACK, and HALL, Circuit Judges.

14               Petition for review of a decision of the Board of

15   Immigration Appeals reversing an immigration judge's grant of a

16   waiver of inadmissibility pursuant to 8 U.S.C. § 1182(d)(11) on

17   the ground that the petitioner's nephew was functionally her son.

18   Even if the statutory term "son" is ambiguous, the BIA's

19   construction of it to exclude her nephew is reasonable and

20   therefore permissible.

21               Petition denied.

22                                 WILLIAM H. HUMBLE, Wilens & Baker, P.C.
23                                 (Howard L. Baker, on the brief), New
24                                 York, NY, for Petitioner.


           1
            Pursuant to the respondent's request, and in light of 8
     U.S.C. § 1252(b)(3)(A), the official caption is amended to
     reflect the Attorney General as the proper respondent.
1                                  JAMES E. GRIMES, Senior Litigation
2                                  Counsel, Office of Immigration
3                                  Litigation, Civil Division, U.S. Dep't
4                                  of Justice (Peter D. Keisler, Assistant
5                                  Attorney General, Civil Division, Linda
6                                  S. Wernery, Assistant Director, of
7                                  counsel), Washington, DC, for
8                                  Respondent.

9    PER CURIAM :

10                  Damalis Rosalina Perez Suriel de Batista, a native and

11   citizen of the Dominican Republic, petitions for review of a July

12   12, 2006, decision of the Board of Immigration Appeals ("BIA")

13   concluding that she is ineligible for a discretionary waiver of

14   inadmissibility under 8 U.S.C. § 1182(d)(11) because the child

15   she attempted to smuggle2 into the United States was not her

16   "spouse, parent, son, or daughter."       8 U.S.C. § 1182(d)(11).    The

17   BIA's construction of the statutory term "son" to exclude a

18   nephew is reasonable, notwithstanding the fact that the nephew is

19   treated by his aunt as though he were her son.       We therefore deny

20   Perez's petition for review.

21                                   BACKGROUND

22                  Damalis Rosalina Perez Suriel de Batista has been a

23   lawful permanent resident of the United States since September

24   26, 1997.

25                  On January 19, 2002, Perez returned to the United

26   States after a two-week trip to the Dominican Republic.       With her


           2
            Under the heading "Smugglers," section 1182 provides that
     "[i]n general[,] . . . [a]ny alien who at any time knowingly has
     encouraged, induced, assisted, abetted, or aided any other alien
     to enter or to try to enter the United States in violation of law
     is inadmissible." 8 U.S.C. § 1182(a)(6)(E)(i).

                                          2
1    was a child traveling under the name José Miguel Fuentes.

2    "Fuentes" was in fact Perez's nephew, Robinson Rafael Valdez

3    Perez.   Perez had paid the mother of the real José Miguel Fuentes

4    more than $1,000 for the child's passport, social security card,

5    and birth certificate.    After immigration inspectors at New

6    York's John F. Kennedy Airport ascertained Robinson's true

7    identity, they returned him to the Dominican Republic and placed

8    Perez in removal proceedings as an inadmissable alien under 8

9    U.S.C. § 1182(a)(6)(E).

10             Perez applied before immigration judge ("IJ") William

11   P. Van Wyke for a section 1182(d)(11) waiver, arguing that

12   Robinson is her "son" within the meaning of that statute.

13   Perez's younger sister was 14 years old when she gave birth to

14   Robinson in 1990.   The sister left home shortly thereafter.     The

15   baby remained with Perez and her mother, who is Robinson's

16   biological grandmother.    When Perez moved out of her mother's

17   home a year and a half later, she took Robinson with her.       Perez

18   raised Robinson until she moved to the United States in 1997.

19   She left the boy in his grandmother's care.    Perez continued to

20   support the boy financially from the United States, and visited

21   him in the Dominican Republic about once every seven months.

22   Robinson saw his biological mother "sometimes," but has never

23   lived with either of his natural parents.    Hr'g Tr., November 17,

24   2004 at 110.   "I loved him as if he was my son," Perez testified

25   at her November 17, 2004, hearing before the IJ.    Hr'g Tr. at

26   111.

                                       3
1              Perez says that she decided to bring Robinson to the

2    United States because he was "having difficulties" at home.     Hr'g

3    Tr. at 111.    Robinson's grandmother did not make enough money to

4    support him.   Perez feared that Robinson would be unable to

5    obtain an education in the Dominican Republic and that he did not

6    receive adequate affection from his natural parents.    Perez

7    testified that "when [she] spoke to him [on the phone], he'd cry

8    a lot, and he would tell [her] that he missed [her]."     Hr'g Tr.

9    at 111.

10             The IJ concluded that Perez was eligible for a waiver

11   under section 1182(d)(11), which provides:

12             (d) Temporary admission of nonimmigrants

13             . . . .
14
15             (11) The Attorney General may, in his
16             discretion for humanitarian purposes, to
17             assure family unity, or when it is otherwise
18             in the public interest, waive application of
19             clause (i) of subsection (a)(6)(E) [,
20             providing that "[a]ny alien who at any time
21             knowingly has encouraged, induced, assisted,
22             abetted, or aided any other alien to enter or
23             to try to enter the United States in
24             violation of law is inadmissible," 8 U.S.C.
25             § 1182(a)(6)(E)(i),] in the case of any alien
26             lawfully admitted for permanent residence who
27             temporarily proceeded abroad voluntarily and
28             not under an order of removal, and who is
29             otherwise admissible to the United States as
30             a returning resident . . . , if the alien has
31             encouraged, induced, assisted, abetted, or
32             aided only an individual who at the time of
33             such action was the alien's spouse, parent,
34             son, or daughter (and no other individual) to
35             enter the United States in violation of law.

36   8 U.S.C. § 1182(d)(11).



                                       4
1               Because Robinson is "in his reality and [Perez's]

2    reality, her son," the IJ considered it within the Attorney

3    General's discretion to grant a waiver.   In the Matter of Damelis

4    Baptista-Perez, No. A45 874 185 (Immig. Ct. N.Y. City Feb. 16,

5    2005) at 10.   He then granted a waiver, reasoning that doing so

6    served the provision's stated humanitarian and public interest

7    objectives, noting that Perez had attempted to smuggle Robinson

8    "for the purpose of family unification, [the] very purpose [for

9    which] a waiver is permitted here."   Id. at 6.

10              The Department of Homeland Security appealed to the

11   BIA.   The BIA, in a per curiam decision, vacated the portion of

12   the IJ's decision that held Perez eligible for the waiver.     In re

13   Damalis Rosalina Perez Suriel de Batista, No. A45 874 185 (B.I.A.

14   July 12, 2006).   The BIA recognized that unlike the term "child,"

15   which is precisely defined by statute to mean a person under 21

16   years of age who stands in a specified biological or adoptive

17   relationship to the alien, "the term 'son or daughter' is not

18   separately defined in Section 212(d)(11) or in the general

19   definitional provisions in section 101 of the Act."   Id.    But

20   because elsewhere in the Immigration and Nationality Act ("INA"),

21   one's "son" or "daughter" must have once been the same person's

22   "child" and the term "child" is not susceptible to a functional

23   reading, the BIA reasoned that the word "son," as used in section

24   1182(d)(11), similarly is not susceptible to such a reading.

25              In her petition, Perez argues that the words "only,"

26   "son," and "no other person," do not exclude her relationship

                                      5
1    with Robinson because her nephew was "functionally" her son and

2    the section 1182(d)(11) waiver is available for a woman

3    "functioning" as a mother who tries to smuggle into the United

4    States a male child "functioning" as her son.

5                                DISCUSSION

6              I.   Standard of Review

7              "When the BIA issues an opinion, the opinion becomes

8    the basis for judicial review of the decision of which the alien

9    is complaining."   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

10   2005) (internal quotation marks omitted).   We review de novo the

11   BIA's underlying conclusions of law, "with the caveat that the

12   BIA's interpretations of ambiguous provisions of the INA are owed

13   substantial deference unless 'arbitrary, capricious, or

14   manifestly contrary to the statute.'"    Mardones v. McElroy, 197

15   F.3d 619, 624 (2d Cir. 1999) (quoting Chevron, U.S.A., Inc. v.

16   Natural Res. Def. Council, 467 U.S. 837, 844 (1984)).

17             Although the IJ granted Perez's application for a

18   waiver of inadmissibility in exercise of the discretion vested in

19   the Attorney General under section 1182(d)(11) and delegated to

20   the IJ, the BIA concluded that Perez was not eligible for one.

21   On this petition, we are thus asked to review the BIA's

22   conclusions of law interpreting a section of the INA.   Analysis

23   of the BIA's interpretation under Chevron is therefore required.

24   See Singh v. Gonzales, 468 F.3d 135, 138-39 (2d Cir. 2006); see

25   also INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987)

26   (recognizing that the Chevron framework applies when an agency

                                         6
1    arrives at an interpretation of an ambiguous statutory term

2    "through a process of case-by-case adjudication").      Under the

3    first part of the Chevron analysis, if "the statute clearly

4    addresses a particular issue . . . 'the court, as well as the

5    agency, must give effect to the unambiguously expressed intent of

6    Congress.'"       Singh, 468 F.3d at 138 (quoting Chevron, 467 U.S. at

7    842-43).    Under the second part of the analysis, if "'the statute

8    is silent or ambiguous with respect to the specific issue [that

9    was before the agency], the question for the [reviewing] court is

10   whether the agency's answer is based on a permissible

11   construction of the statute.'"       Id. (quoting Chevron, 467 U.S. at

12   843).

13               II.    Definition of "Son"

14               To prevail under the first prong of the Chevron test,

15   Perez must demonstrate that the term "son" in 8 U.S.C.

16   § 1182(d)(11) unambiguously includes Robinson.       This she cannot

17   do.   If anything, the explicit limitation of the statute's reach

18   to a specifically enumerated list of qualifying relationships --

19   "spouse, parent, son, or daughter (and no other individual),"

20   8 U.S.C. § 1182(d)(11) -- strongly supports the BIA's

21   interpretation of "son" to exclude an "other individual" like a

22   nephew.    Indeed, even though the statute does not explicitly

23   define "son," the language of the statute seems precise enough to

24   require our denial of the petition.

25               Even if section 1182(d)(11) were ambiguous in this

26   regard, however, application of the second prong of Chevron would

                                          7
1    require denial of the petition.     It directs us to determine

2    whether the BIA's construction of the statute is "permissible."

3    Chevron, 467 U.S. at 843.     Perez argues that the meaning of "son"

4    must be determined with reference to the "three broad purposes"

5    listed at the outset of section 1182(d)(11).       The language to

6    which she refers reads:     "The Attorney General may, in his

7    discretion for humanitarian purposes, to assure family unity, or

8    when it is otherwise in the public interest," waive the otherwise

9    applicable bar to admissibility.       8 U.S.C. § 1182(d)(11).

10   According to Perez, the purpose of promoting family unity would

11   be furthered by including her nephew within the meaning of the

12   term "son."

13             But the stated purposes of the statute guide not its

14   interpretation, but the exercise of discretion under it.         They

15   provide advice on how the Attorney General and his delegates

16   should decide, within the broad limits afforded them, whether to

17   waive inadmissibility with respect to the smuggling of a "spouse,

18   parent, son, or daughter (and no other individual)."       Cf. Saloum

19   v. U.S. Citizenship & Immigration Servs., 437 F.3d 238 (2d Cir.

20   2006) (declining to review an IJ's discretionary denial of the

21   section 1182(d)(11) waiver to an otherwise eligible alien who had

22   attempted to smuggle his infant daughter into the country).        They

23   do not contain an explicit or implicit definition of the word

24   "son."

25             The BIA's refusal to adopt a functional definition of

26   the word "son" is consistent with previous decisions interpreting

                                        8
1    the INA's use of the word "son" in related statutory contexts.

2    In INS v. Hector, 479 U.S. 85 (1986) (per curiam), the Supreme

3    Court considered whether discretionary suspensions of deportation

4    on the basis of family hardship to, inter alia, a "child" could

5    include consideration of the difficulties that might be endured

6    by an alien's nieces.   Id. at 86-87.   The Court concluded that

7    "even if [the alien's] relationship with her nieces closely

8    resembles a parent-child relationship, . . . Congress, through

9    the plain language of the statute, precluded this functional

10   approach to defining the term 'child.'"    Id. at 90; see also Lau

11   v. Kiley, 563 F.2d 543, 545 (2d Cir. 1977) (recognizing that "in

12   order to qualify as a 'son' or 'daughter' for the purpose of

13   obtaining visa preference, one must once have qualified as a

14   'child,'" as defined in 8 U.S.C. § 1101).3




          3
              We note that a House Report on the Family Unity and
     Employment Opportunity Immigration Act of 1990, H.R. 4300, 101st
     Cong. (as passed by the House of Representatives on Oct. 3,
     1990), suggests that Congress's purpose in revising the
     immigration laws was to promote the unity of nuclear, not
     extended, families. See H.R. REP . No. 101-723(I) at 3 1 (1990),
     reprinted in 1990 U.S.C.C.A.N. 6710, 6711 (stating that the
     "purpose[, inter alia,] of H.R. 4300, as amended, is to ease
     current U.S. immigration law restrictions that . . . hinder the
     reunification of nuclear families"); id. at 40, 6719 ("H.R.
     4300 . . . addresses the particular need for reunification of
     nuclear families of lawful permanent residents . . . ."). Though
     this report preceded the introduction of the waiver provision of
     section 1182(d)(11) into the bill that was ultimately enacted, we
     have been given no reason to think that Congress's aim grew to
     encompass facilitating the unification of extended families as
     well.

                                      9
1             The BIA's refusal to adopt a functional reading of the

2   word "son," then, is at the very least reasonable, and therefore

3   clearly "permissible."

4                            CONCLUSION

5             For the foregoing reasons, the petition for review is

6   denied.




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