                        REVISED JUNE 5, 2008

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                     FILED
                                 No. 06-60063                      March 11, 2008

                                                              Charles R. Fulbruge III
JOSE MARTINEZ                                                         Clerk

                                          Petitioner
v.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL

                                          Respondent



                      On Petition for Review of an Order
                     of the Board of Immigration Appeals


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
      After Jose Martinez was convicted of bank fraud, in violation of 18 U.S.C.
§ 1344, the United States sought to remove him, pursuant to § 237(a)(2)(A)(iii)
of the Immigration and Nationality Act (INA), as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 8
U.S.C. § 1227(a)(2)(A)(iii). Ruling the bank-fraud conviction constitutes an
aggravated felony, the immigration judge (IJ) sustained the removability charge
and denied Martinez statutory eligibility for a waiver of inadmissibility. Both
on direct appeal and in denying a joint motion to reconsider, the Board of
Immigration Appeals (BIA) agreed with the IJ. Martinez maintains: his bank-
                                  No. 06-60063

fraud conviction is not an aggravated felony; and, in the alternative, he is
eligible to seek a discretionary waiver of inadmissibility. DENIED IN PART;
GRANTED IN PART; REMANDED.
                                        I.
      Born in Argentina, Martinez, at age twelve, was admitted to the United
States as a non-immigrant visitor in 1980. Ten years after that admission
(entry), he adjusted his status, under amnesty provisions of INA § 245A, to that
of a lawful permanent resident. Martinez married an American citizen, in 2000,
by whom he has two children.
      Both before and after he became married, Martinez worked as an
accounts-receivable clerk at a real-estate management firm in New York. In
that employment, Martinez illegally took checks and money orders, altered the
payees, and deposited the instruments in personal accounts he maintained.
Martinez both withdrew, and wrote checks against, those funds.
      In June 2001, when his criminal actions were discovered, Martinez
pleaded guilty in New York district court to one count of bank fraud, in violation
of 18 U.S.C. § 1344. He was sentenced that December to serve five months in
prison, followed by five months of home detention and supervised release.
Martinez was also ordered to pay approximately $313,000 in restitution.
      After Martinez served his five-month prison term (but before he served
any of his home detention), Customs officials took him into custody and
instituted removal proceedings. The requested removal was premised on the
assertion that Martinez had committed an aggravated felony, as defined by INA
§ 101(a)(43)(M)(i), and was therefore removable under INA § 237(a)(2)(A)(iii).
The INA has numerous definitions for what constitutes an “aggravated felony”.
One is found in the above-referenced subsection (a)(43)(M)(i): an aggravated
felony is an offense involving “fraud or deceit in which the loss to the victim or



                                        2
                                 No. 06-60063

victims exceeds $10,000”. 8 U.S.C. § 1101(a)(43)(M)(i). (Martinez does not
contest that the loss exceeded $10,000.)
      Martinez was transferred to a detention facility in Oakdale, Louisiana, for
removal proceedings. There, an IJ held a hearing on removal vel non.
      In February 2003, the IJ sustained removability, on the basis that
Martinez had been convicted of an “aggravated felony”. It ruled: “By the very
terms of [18 U.S.C. § 1344], fraud is an element of the offense.”
      The IJ also ruled Martinez was ineligible to seek relief under INA § 212(h).
It allows the Attorney General, in his discretion, to waive certain enumerated
criminal grounds for inadmissibility for qualifying aliens. 8 U.S.C. § 1182(h).
(Receiving that waiver would enable Martinez to seek to obtain adjustment of
status as the spouse of a United States citizen under INA § 245.)
      Concerning § 212(h), the IJ ruled that Martinez’ underlying conviction’s
being an aggravated felony precluded a waiver of inadmissibility. In that
regard, the IJ rejected Martinez’ contention that the statutory bar for § 212(h)
relief did not apply, finding In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999)
(en banc), controlling.
      The IJ also rejected Martinez’ claim to United States nationality pursuant
to his voluntary registration in 1987 for military service in this country.
Conceding the nationality issue is foreclosed, Martinez does not raise it here.
      In July 2003, by a brief opinion, the BIA agreed with the IJ’s ruling that
Martinez’ § 1344 conviction constituted an aggravated felony. The BIA also
found In re Rosas controlling on eligibility vel non for the § 212(h) waiver of
inadmissibility.
      Following the BIA decision, instead of filing a petition for review to this
court, Martinez applied for habeas relief in New York district court, pursuant to
28 U.S.C. § 2241. Martinez v. Ashcroft, No. 03-CV-4328 (E.D.N.Y. 2003). After
briefing and oral argument, however, the parties submitted a joint motion for

                                        3
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reconsideration to the BIA. (It is not clear why the parties jointly sought
reconsideration; the record and Martinez’ counsel at oral argument here suggest
the original BIA decision insufficiently addressed the presented issues.) As a
result, this matter was remanded to the BIA, and Martinez was released from
the Oakdale facility pending removal.
      In April 2004, the BIA denied reconsideration, concluding that neither
party “identified additional legal arguments, a change in the law or an argument
or aspect of the case that was overlooked”.        Nevertheless, the BIA also
reaffirmed, in far greater detail, its previous aggravated-felony determination
and rejection of § 212(h) eligibility. (This greater detail may have resulted from
the Government’s joining Martinez’ motion to reconsider.)
      Following the BIA’s second ruling, Martinez’ New York district-court
habeas application was not acted on until 31 May 2005, when his application
was transferred to the Second Circuit, pursuant to § 106(c) of the REAL ID Act,
Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 310-11 (2005). In November 2005,
the Second Circuit granted the Government’s motion to transfer this matter to
our court.
                                        II.
      Under REAL ID Act § 106(c), because Martinez’ habeas application was
pending on 11 May 2005, it is treated as a timely petition for review of the BIA’s
order, without the jurisdictional 30-day period for filing such petitions.
      [A]ll collateral proceedings pending on May 11, 2005, when the
      REAL ID Act took effect, and transferred to courts of appeals under
      § 106(c), must be treated as timely petitions for review, no matter
      how long it has been since the Board rendered its decision.
      Collateral proceedings filed on or after May 11, however, will be
      dismissed outright; the window for belated judicial review has
      closed.

Medellin-Reyes v. Gonzales, 435 F.3d 721, 723-24 (7th Cir. 2006); see also Rosales
v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.

                                        4
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2005) (per curiam); Pub.L. No. 109-13, § 106, 119 Stat. 231, 302-23 (codified in
part at 8 U.S.C. § 1252(a)(2)(D)).
      Martinez presents two alternative bases why he should be granted relief:
he is not removable because his bank-fraud conviction is not an aggravated
felony, as that term is defined under INA § 101(a)(43); and he is eligible to seek
a discretionary waiver of inadmissibility under INA § 212(h). As discussed infra,
because both issues present questions of law, our review is de novo. E.g.,
Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006).
                                       A.
      The BIA ruled Martinez removable for committing an aggravated felony
under 8 U.S.C. § 1227(a)(2)(A)(iii). The REAL ID Act amended 8 U.S.C. §
1252(a)(2)(C) to preclude judicial review of any removal order based, inter alia,
on an alien’s commission of an aggravated felony.        8 U.S.C. 1252(a)(2)(C);
Hernandez-Castillo v. Moore, 436 F.3d 516, 518-19 (5th Cir.), cert. denied, 127
S. Ct. 40 (2006). The Act provides, however, that none of its provisions “shall be
construed as precluding review of constitutional claims or questions of law raised
upon a petition for review”. 8 U.S.C. § 1252(a)(2)(D) (emphasis added).
      Martinez presents a question of law: whether his 18 U.S.C. § 1344 bank-
fraud conviction was an aggravated felony, as defined by INA § 101(a)(43).
Therefore, we are limited initially to determining our jurisdiction; in doing so,
we are limited to deciding whether the conviction was an aggravated felony
under the INA. James v. Gonzales, 464 F.3d 505, 507 (5th Cir. 2006). If it was,
as discussed above, we lack jurisdiction to review the removal decision.
(Concerning the removal decision, Martinez contests only whether he committed
an aggravated felony; therefore, in deciding jurisdiction, we concomitantly decide
the aggravated-felony basis for removal under INA § 227(a)(2)(A)(iii).)
      In determining whether Martinez’ prior conviction falls within the INA’s
definition of aggravated felony, we first accord substantial deference, if

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warranted, to the BIA’s interpretation of the INA. Omari v. Gonzales, 419 F.3d
303, 306 (5th Cir. 2005) (quoting Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th
Cir. 2003)). Having afforded any necessary deference, we then “review de novo
whether the particular statute that the prior conviction is under falls within the
relevant INA definition”. Id. (citations omitted).
                                        1.
      In his opening and reply briefs here, Martinez contended: because bank
fraud does not require proof of two common-law elements of fraud—reliance and
damage—his bank-fraud conviction is not an offense “involv[ing] fraud or deceit”,
as required to constitute an aggravated felony under INA § 101(a)(43)(M)(i)
(subsection (M)(i)).   This assertion, as Martinez’ counsel conceded at oral
argument here, is foreclosed by our court’s following decision, rendered after
briefing was completed: James, 464 F.3d at 509 (“The plain language of § 1344
. . . necessarily entails fraud or deceit.”). Under our precedent, bank fraud is an
aggravated felony under subsection (M)(i).
                                        2.
      Alternatively, Martinez maintains: even with, under James, bank fraud’s
meeting the definition of aggravated felony as defined by subsection (M)(i), it
also contains elements of theft, making it a “hybrid” offense.         Therefore,
Martinez asserts, in addition to the elements contained in subsection (M)(i),
there must be proof of the elements in INA § 101(a)(43)(G) (subsection (G)),
another aggravated-felony definition.
      Subsection (G) defines an aggravated felony as “a theft offense (including
receipt of stolen property) or burglary offense for which the term of imprisonment
[is] at least one year”. 8 U.S.C. § 1101(a)(43)(G) (emphasis added). According to
Martinez, because bank fraud is a hybrid offense, his bank-fraud conviction
cannot be an aggravated felony because he was sentenced to less than the year
in prison required by subsection (G).

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                                      No. 06-60063

        Martinez’ hybrid-offense theory is premised on Nugent v. Ashcroft, 367
F.3d 162 (3d Cir. 2004). In Nugent, an alien was convicted under Pennsylvania
law, 18 PA. CONS. STAT. ANN. § 3922(a), of “theft by deception”. Nugent, 367 F.3d
at 163. Based on this state-law conviction, the BIA affirmed removal based on
the alien’s commission of an aggravated felony, as defined by subsection (G). Id.
at 165.
        The Third Circuit agreed subsection (G) was satisfied. Id. at 174. The
court did not stop there, however: “If we decide that Nugent’s conviction is ‘an
offense that involves fraud or deceit’ as well as ‘a theft offense,’ then to qualify
as an aggravated felony under the INA it must [also] meet the requirements of
[subsection (M)(i)]”. Id. at 174-75. The court held: “theft by deception” also
involved “fraud or deceit”; and the alien’s conviction under that statute could not
meet the “aggravated felony” standard, because the victim’s loss did not exceed
$10,000, as required by subsection (M)(i). Id. at 179. Nugent’s hybrid-offense
holding was premised on the following polysyllogism (as defined at id. at 177
n.4):
        Depriving another of property by fraud or deceit is an offense
        ([subsection] M).
        The offense of theft by deception deprives another of property by
        theft ([subsection] G).
        Therefore, the offense of theft by deception is an offense under
        [subsections] (M) and (G).
                                 * * * * * *
        The offense of theft by deception is an offense under [subsections]
        (M) and (G).
        A violation of Pennyslvania’s theft by deception statute . . . is an
        offense of theft by deception.
        Therefore, a violation of Pennysvlvania’s theft by deception statute
        . . . is an offense under (M) and (G)

Id. at 177 (asterisks in original).




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      Martinez urges our adopting this reasoning. (In the light of James, this
is his only remaining basis for challenging being classified as an aggravated
felon.) He asserted this hybrid-offense theory before the BIA on direct appeal
and on motion to reconsider. It did not address it in either instance.
      Our court has not decided whether an offense may properly be
characterized as a hybrid fraud/theft offense, which must meet the requirements
of both subsections (G) and (M)(i). See Omari, 419 F.3d at 309 (declining to
address the issue, after ruling the underlying offense of conviction (18 U.S.C. §§
371, 2314 (conspiracy to commit interstate transportation of stolen property))
was not an aggravated felony because it did not involve “fraud or deceit”).
Assuming arguendo we would apply a hybrid-offense theory, Martinez’
conviction would have to meet the requirements for a “theft” offense under
subsection (G), in addition to those for “fraud or deceit” under subsection (M)(i).
On that basis, it would not constitute an aggravated felony because, as noted,
Martinez did not serve a term of imprisonment of at least one year, as required
by subsection (G).
      As stated, pursuant to James, Martinez’ § 1344 conviction involves “fraud
or deceit”. Therefore, in assessing whether he committed an aggravated felony
under a hybrid-offense theory, we must determine whether his § 1344 offense
also constitutes a theft offense under subsection (G). In doing so, we employ the
categorical approach provided in Taylor v. United States, 495 U.S. 575 (1990):
we look “at the statute under which the alien was convicted rather than at the
particular underlying facts” to determine whether the offense falls within a
particular definition of “aggravated felony”, as defined under INA § 101(a)(43).
Omari, 419 F.3d at 309 (citing Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.
2000)).
      “Theft” is not defined by the INA; nor has the BIA done so. As a result, we
apply its commonly understood legal meaning. See James, 464 F.3d at 508. The

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generic definition of “theft offense” is the “taking of property or an exercise of
control over property without consent with the criminal intent to deprive the
owner of rights and benefits of ownership, even if such deprivation is less than
total or permanent”. Burke v. Mukasey, 509 F.3d 695, 697 (5th Cir. 2007)
(formally adopting definition) (emphasis added) (citations omitted).
      Viewing the text of the § 1344 bank-fraud statute in the light of this
definition, it is not a “theft offense” under subsection (G). Section 1344 provides:
      Whoever knowingly executes, or attempts to execute, as scheme or
      artifice–
         (1) to defraud a financial institution; or
         (2) to obtain any of the moneys, funds, credits, assets, securities,
         or other property owned by, or under the custody or control of, a
         financial institution, by means of false or fraudulent pretenses, or
         promises;
      shall be fined not more than $1,000,000 or imprisoned not more
      than 30 years, or both.

18 U.S.C. § 1344 (emphasis added).
      Applying the categorical approach, neither of the two prongs of § 1344, by
its terms, requires property being obtained without the owner’s (financial
institution’s) consent—a critical element, as stated above, of a theft offense. See
also Soliman v. Gonzales, 419 F.3d 276, 283 (4th Cir. 2005); Nugent, 367 F.3d at
174 (noting theft requires property to be taken without consent). Rather, under
§ 1344, the property must be obtained by “fraud”, which is “a knowing
misrepresentation of the truth or concealment of a material fact to induce
another to act to his or her detriment”. See James, 464 F.3d at 508 n.14 (quoting
BLACKS LAW DICTIONARY 413 (7th ed. 1999)) (internal quotation marks omitted).
“The key and controlling distinction between these two crimes is therefore the
‘consent’ element–theft occurs without consent, while fraud occurs with consent
that has been unlawfully obtained.” Soliman, 419 F.3d at 283 (emphasis added).



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      Indeed, § 1344 applies to situations in which a financial institution
voluntarily consents to giving the perpetrator “moneys, funds, credits, assets,
securities, or other property”, as a result of fraud. See, e.g., United States v.
Frydenlund, 990 F.2d 822 (5th Cir. 1993) (bank-fraud conviction for check kiting
scheme); United States v. Farmigoni, 934 F.2d 63 (5th Cir. 1991) (bank-fraud
conviction where defendant issued unauthorized letters of credit in favor of his
cohort, who used the documents to obtain funds from other financial
institutions).   Although bank-fraud always, in varying degrees, involves a
deprivation on terms different than those to which the victim believed she was
assenting, this hardly means the definition of fraud is subsumed within the
definition of theft. Given this distinction, it would be passing strange, for
purposes of INA § 101(a)(43) (providing definitions for aggravated felony), to
hold a crime “involving fraud or deceit” is also a “theft offense”.
      Moreover, on a common-sense level, it is well to remember that Martinez
was not charged with the theft (i.e., the taking (caption) and carrying away
(asportation)) of the funds he unlawfully obtained through his employment; he
was charged, instead, with fraudulently obtaining such funds from a financial
institution, under a statute that is materially the same as many other fraud
statutes. Accordingly, in the light of our circuit’s definitions of the terms, and
again assuming arguendo we would apply the hybrid-offense theory, a § 1344
bank-fraud offense would not be a hybrid fraud/theft offense.
      This is consistent with Congressional intent. See Soliman, 419 F.3d at
282-83. As part of discerning such intent, we “look to the statutory language as
a whole, construing each section in harmony with every other part or section,
because ‘Act[s] of Congress . . . should not be read as a series of unrelated and
isolated provisions’”. Id. at 282 (citing Gustafson v. Alloyd Corp., 513 U.S. 561,
570 (1995)) (alteration and omission in original). We must assume that, by
giving separate definitions to offenses “involving fraud and deceit” and “theft”,

                                        10
                                   No. 06-60063

Congress intended them to be different. See, e.g., United States v. Nordic
Village, 503 U.S. 30, 36 (1992). In this regard, we are mindful not to construe
a definition within § 101(a)(43) to be “so broad that it is inconsistent with its
accompanying words, thus giving unintended breadth to the [INA]”. Gustafson,
513 U.S. at 575 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961))
(internal quotation marks omitted).
      Martinez’ bank-fraud conviction is an aggravated felony for purposes of the
INA. Therefore, we lack jurisdiction to review the removal order.
                                         B.
      For his alternative legal issue, Martinez contends: contrary to the two BIA
decisions, he is eligible to seek a discretionary waiver of inadmissibility (based
on hardship) from the Attorney General under INA § 212(h). Although we are
without jurisdiction “to review a decision of the Attorney General to grant or
deny a [§ 212(h)] waiver”, 8 U.S.C. § 1182(h), our court has jurisdiction, as
discussed supra, to review the question of law presented by Martinez’ challenge
to the BIA’s construction of § 212(h). 8 U.S.C. § 1252(a)(2)(D) (permitting review
of questions of law notwithstanding review being otherwise barred under 8
U.S.C. §§ 1182(h) and 1252(a)(2)(B)(i) & (C)).
      In this instance, the term “waiver of inadmissibility” is a misnomer, to say
the least. On its face, it would appear that § 212(h) applies only to those aliens
seeking admission (entry) into the United States, not those, like Martinez, who
are already here. In practice, however, qualifying removable aliens may also
obtain such waivers. See Flores-Ledezma v. Gonzales, 415 F.3d 375, 379 n.5 (5th
Cir. 2005) (citing Jankowski-Burczyk v. INS, 291 F.3d 172, 175 & n.2 (2d Cir.
2002)); see also CHARLES GORDON, STANLEY MAILMAN & STEPHEN YALE-LOEHR,
IMMIGRATION LAW AND PROCEDURE § 51.03 (rev. ed. 2001). Therefore, Martinez’
status as a lawful permanent resident (LPR), in and of itself, does not preclude
eligibility for a waiver of inadmissibility.

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                                 No. 06-60063

      The heart of Martinez’ claim to being able to seek a § 212(h) waiver focuses
on language in the statute, as amended by IIRIRA § 348: aliens are not eligible
for the waiver if they have “previously been admitted to the United States as an
alien lawfully admitted for permanent residence [i.e., an LPR] if . . . since the
date of such admission the alien has been convicted of an aggravated felony”. 8
U.S.C. § 1182(h) (emphasis added). Martinez contends: assuming arguendo his
bank-fraud conviction constitutes an aggravated felony (as held supra, it does),
he is eligible for the § 212(h) waiver because he was not admitted as an LPR, as
the statute requires; instead, he was adjusted to LPR status ten years after his
admission (entry) into the United States. Such LPR “adjustment”, Martinez
claims, does not constitute prior “admission” as an LPR for purposes of § 212(h).
      Again, in ruling Martinez ineligible for a § 212(h) waiver, the BIA ruled
In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (en banc), is controlling. In
Rosas, the BIA considered whether an alien who had entered without inspection,
and was later adjusted to LPR status, could be subject to removal proceedings
under INA § 237(a)(2)(A)(iii), based on a subsequent aggravated-felony
conviction. Rosas, 22 I. & N. Dec. at 617-619. That subsection states: “Any
alien who is convicted of an aggravated felony at any time after admission is
deportable”. 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added).
      As noted, the alien had committed the offense after adjusting to LPR
status. Rejecting the assertion that such an alien, as an LPR, had somehow
acquired immunity from removal, the BIA held aliens who obtained LPR status
through adjustment were considered to have accomplished “admission” for
purposes of that aggravated-felony removal provision. Rosas, 22 I. & N. Dec. at
619. Notably, however, the BIA did not address whether this interpretation of
“admission” applied in the context of waivers of inadmissibility under § 212(h).
In fact, the BIA stated it was not “attempt[ing] to resolve the meaning of



                                       12
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‘admission’ in other contexts or under other provisions for adjustment of status”.
Rosas, 22 I. & N. at 623 n.5.
      The Government urges our deferring to this interpretation, as applied by
the BIA in this case, of “admission” in the context of § 212(h) waivers. In
general, our de novo review is restrained by our “accord[ing] substantial
deference to the BIA’s interpretation of the INA . . . and definitions of phrases
within it”. Omari, 419 F.3d at 306 (quoting Smalley, 354 F.3d at 335-36)
(internal quotation marks omitted). Recitation of this substantial-deference
standard, without more, is insufficient to require our deference in this instance.
Whether we defer to the BIA’s interpretation of “admission” for § 212(h)
purposes will be determined under the strictures of Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny.
See Hamdan v. INS, 98 F.3d 183, 185 (5th Cir. 1996); see also INS v. Cardoza-
Fonseca, 480 U.S. 421, 445 & n.29 (1987).
      Under Chevron, we defer to agency interpretations of ambiguous statutes.
Chevron, 467 U.S. at 845. Administrative agencies are entrusted with the
authority to administer Congressionally-created programs, a power which
necessarily involves filling in statutory gaps created, either expressly or
implicitly, by Congress. Id. (citing Morton v. Ruiz, 415 U.S. 199, 231 (1974)).
Deference of this sort, however, is not owed automatically to all agency
interpretations of statutory provisions; again, there must be ambiguity.
      Therefore, under the Chevron-framework, we first determine “whether
Congress has directly spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of Congress”.
Id. at 842-43. If Congress has, however, left a gap in the statute, “the question
for the court is whether the agency’s answer is based on a permissible
construction of the statute”. Id. at 843. Where Congress has explicitly created

                                       13
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a gap for the agency to fill, there is express delegation, and the agency
determination will be upheld so long as it is not “arbitrary, capricious, or
manifestly contrary to the statute”. Id. at 844. On the other hand, where the
gap in the statute is implicit, “a court may not substitute its own construction
of a statutory provision for a reasonable interpretation made by the
administrator of an agency”. Id. (emphasis added).
      In contending we must afford substantial deference to the BIA’s
interpretation of the term “admission” in § 212(h), the Government cites only our
decision in Omari. Under Chevron’s above-described threshold question, if we
conclude Congress spoke directly on the issue, we do not accord deference to the
administrative interpretation. See Cardoza-Fonseca, 480 U.S. at 447-48 (“The
judiciary is the final authority on issues of statutory construction and must
reject administrative constructions which are contrary to clear congressional
intent.” (internal quotation marks omitted) (quoting Chevron, 467 U.S. at 843
n.9)). Therefore, we must determine whether Congress has spoken to whether
aliens, who commit an aggravated felony subsequent to their post-entry
adjustment to LPR status, are barred from seeking a § 212(h) waiver of
inadmissibility.
      In determining whether Congressional intent is clear (and, therefore,
deference’s not being accorded the agency), we, of course, look first and foremost
to the language of the statute. E.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-254 (1992) (“We have stated time and time again that courts must presume
that a legislature says in a statute what it means and means in a statute what
it says there.”). Needless to say, plain statutory language is the most instructive
and reliable indicator of Congressional intent. White v. INS, 75 F.3d 213, 215
(5th Cir. 1996). Absent indication to the contrary, in analyzing the text of a
statute, courts apply the “ordinary, contemporary, common meaning” of the



                                        14
                                  No. 06-60063

terms contained in it. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 388 (1993).
      Section 212(h), the provision at issue regarding waivers of inadmissibility,
states in relevant part:
      No 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

8 U.S.C. § 1182(h) (emphasis added). For determining ambiguity vel non, if this
statutory text stood alone, we would define “admitted” by its ordinary,
contemporary, and common meaning, as discussed supra. Congress has relieved
us from this task, however, by providing the following definition: “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) (emphasis added). Under this
statutory definition, “admission” is the lawful entry of an alien after inspection,
something quite different, obviously, from post-entry adjustment of status, as
done by Martinez.
      With this definition in mind, the plain language of § 212(h) reveals that
“admitted”, as employed in § 212(h), includes an alien’s lawful entry into this
country with permanent-resident status. Stated differently, for the § 212(h) bar
to apply: when the alien is granted permission, after inspection, to enter the
United States, he must then be admitted as an LPR. Accordingly, we find no
basis for the statutory language’s being ambiguous. Again, this is based, in part,
on Congress’ having defined “admitted”.
      Our holding there is no ambiguity in the term “admitted” is consistent
with the application of traditional statutory-construction rules, which we are
instructed to use in determining whether Congressional intent is clear before

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deferring to an administrative interpretation. See, e.g., EEOC v. Arabian Am.
Oil Co., 499 U.S. 244 (1991); see also Cardoza-Fonseca, 480 U.S. at 447-48;
Chevron, 467 U.S. at 843 n.9 (“If a court, employing traditional tools of statutory
construction, ascertains that Congress had an intention on the precise question
at issue, that intention is the law and must be given effect.”).
      Here, defining “admitted”, as used in § 212(h), to exclude adjustment to
LPR status subsequent to entry, as was done by Martinez, is bolstered by the
“longstanding principle of construing any lingering ambiguities in deportation
statutes in favor of the alien”. Cardoza-Fonseca, 480 U.S. at 449 (citations
omitted). This canon of construction, comparable to the rule of lenity in criminal
cases, is based on the drastic nature of removal. “We will not assume that
Congress meant to trench on [the alien’s] freedom beyond that which is required
by the narrowest of several possible meanings of the words used.” Fong Haw
Tan v. Phelan, 333 U.S. 6, 10 (1948). Therefore, this rule of narrow construction
provides an additional basis to construe § 212(h) in favor of Martinez’ being able
to seek a waiver of inadmissibility. (Obviously, simply being able to seek the
waiver does not mean it will necessarily be granted.)
      Conceding that § 212(h)’s plain language might yield the result Martinez
seeks, the Government contends we should nevertheless hold “admitted”
includes post-entry “adjustment” to LPR status.            See Bellum v. PCE
Constructors, Inc., 407 F.3d 734, 739 (5th Cir. 2005) (“[N]o canon of statutory
construction requires us to honor plain language when to do so would frustrate
the unmistakable purpose of the law”.). Noting that the reforms enacted in
IIRIRA were designed to expedite the removal of criminal aliens from the United
States, Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001), the Government
maintains: for an alien who committed an aggravated felony, it would be
unreasonable to impute to Congress an intent to distinguish between aliens who
entered the country as LPRs and those, like Martinez, who adjusted to LPR

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status post-entry. Of course, we recognize the well-established maxim that
statutes should be construed to avoid an absurd result. As discussed infra, our
construction does not lead to that.
      As Martinez points out, Congress may well have been taking a “rational
first step toward achieving the legitimate goal of quickly removing aliens who
commit certain serious crimes from the country”. Lara-Ruiz, 241 F.3d at 947.
In Lara-Ruiz, the Seventh Circuit addressed, inter alia, an equal-protection
challenge to the INA’s distinction between LPRs and non-LPRs for purposes of
eligibility to seek a waiver of inadmissibility. Id. Noting that it might have been
“wiser, fairer, and more efficacious” not to have made such a distinction, the
court found a rational basis for the distinction on the ground that Congress may
well have been taking an incremental approach to addressing its ultimate goals.
Id.; see McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 809 (1969) (“[A]
legislature traditionally has been allowed to take reform ‘one step at a time,
addressing itself to the phase of the problem which seems most acute to the
legislative mind,’ . . . and a legislature need not run the risk of losing an entire
remedial scheme simply because it failed, through inadvertence or otherwise, to
cover every evil that might conceivably have been attacked”. (citations omitted)).
      This rational basis for the distinction in § 212(h) between aliens who
entered the United States as LPRs and those who adjusted to that status post-
entry is supported by the fact that, subsequent to IIRIRA’s passage, the
“Immigration Technical Corrections Act of 1997”, H.R. 2413, attempted to amend
INA § 101(a)(13) (defining “admission” and “admitted”) to include aliens, like
Martinez, who had adjusted to LPR status subsequent to being admitted to the
United States (to entering this country). This amendment, which demonstrated
at least some in Congress felt “admitted” did not include post-entry status
“adjustment”, was not enacted, perhaps out of recognition that limited
enforcement resources should be devoted to attacking the problem in stages.

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      Moreover, as Martinez also points out, Congress might rationally have
concluded that adjusted-to-LPR-status aliens like him are more deserving of
being eligible for a waiver of inadmissibility. Martinez entered the United
States as a minor, grew up in this country, and developed ties here. He also
went through the scrutiny of adjustment, in which his record in the United
States was examined. Congress could have concluded rationally that individuals
such as Martinez are more deserving, than those who entered as LPRs, of being
eligible for the § 212(h) waiver, including likely having more citizen relatives
who would be affected adversely by removal.
      Of      course,   it   is   irrelevant   whether   Congress   made     this
distinction—between those who entered as an LPR and those who adjusted post-
entry to LPR status—based on the “incremental approach”, or because it thought
candidates such as Martinez more deserving. What is relevant is that there are
countervailing explanations for the statutory distinction between “admitted” and
“adjustment”, which are just as plausible, if not more so, than the Government’s
contention that such a reading would lead to an absurd result. Therefore, we are
not at liberty to override the plain, unambiguous text of INA §§ 212(h) and
101(a)(13).
      The Government, for the first time at oral argument, suggested that INA
§§ 245 and 245A (governing adjustment to LPR status) support the proposition
that, when an alien is granted LPR status, he is deemed “admitted” for purposes
of § 212(h). For obvious reasons, we generally do not consider contentions raised
for the first time at oral argument. This prudential practice is consistent with
a party’s waiving a contention because of inadequate briefing. United States v.
Le, 512 F.3d 128, 132 n.2 (5th Cir. 2007).
      In our discretion, because this is a question of law involving statutory
construction, we will consider it. We find no basis in the text of §§ 245 or 245A
for this contention. See 8 U.S.C. §§ 1255 & 1255a. Sections 245 and 245A

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provide the requirements for adjustment to LPR status. “Adjustment” is the
procedure by which an alien becomes a LPR without having to first leave the
country, as is the case with consular processing. RICHARD D. STEEL, STEEL ON
IMMIGRATION LAW § 7.1 (2d ed. 1992, 2007 Supp.). Contrary to the Government’s
contention at oral argument, these statutes do not provide that adjustment
constitutes being “admitted” for the purpose of determining eligibility for a
waiver under § 212(h).
      To the extent the Government asserts that the existence of the term
“lawfully admitted for permanent residence” in those two sections controls our
analysis, it is mistaken.     That term, “lawfully admitted for permanent
residence”, is an entirely separate term of art defined at § 101(a)(20), which does
in fact encompass both admission to the United States as a LPR and post-entry
adjustment to LPR status. Section 212(h), however, expressly incorporates that
term of art (“lawfully admitted for permanent residence”), as defined by §
101(a)(20), separate and apart from its use of “admitted”, as defined by §
101(a)(13). To illustrate, § 212(h) only denies waivers of eligibility to those
aliens who have “previously been admitted [§ 101(a)(13)] to the United States as
an alien lawfully admitted for permanent residence [§ 101(a)(20)]” (emphasis
added).
      Accordingly, we hold: for aliens who adjust post-entry to LPR status, §
212(h)’s plain language demonstrates unambiguously Congress’ intent not to bar
them from seeking a waiver of inadmissibility. Because we must give effect to
that intent, we proceed no further in the Chevron inquiry.           Waggoner v.
Gonzales, 488 F.3d 632, 636 (5th Cir. 2007). (Furthermore, because § 212(h)’s
plain language is unambiguous, we need not reach another issue raised by
Martinez: whether customary international law may be applied to resolve
ambiguity in the construction of an ambiguous statute. See Beharry v. Reno, 183
F. Supp. 2d 584 (E.D.N.Y. 2002), rev’d on other grounds, 329 F.3d 51 (2d Cir.

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2003).) Therefore, under § 212(h), Martinez is eligible to seek a discretionary
waiver of inadmissibility.
                                     III.
      For the foregoing reasons, the petition is DENIED in part and GRANTED
in part.   Accordingly, this matter is REMANDED to the BIA for further
proceedings consistent with this opinion.




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