         Case: 11-15495   Date Filed: 02/28/2013   Page: 1 of 12




                                                                   [PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 11-15495
                       Non-Argument Calendar
                     ________________________

                      Agency No. A024-690-603




SHADE LAWAL,

                                                           Petitioner,

                                versus

U.S. ATTORNEY GENERAL,

                                                           Respondent.




                     ________________________

                Petition for Review of a Decision of the
                     Board of Immigration Appeals
                      ________________________

                          (February 28, 2013)
               Case: 11-15495       Date Filed: 02/28/2013       Page: 2 of 12


Before TJOFLAT, MARCUS, and KRAVITCH, Circuit Judges.


PER CURIAM:

       Shade Lawal petitions for review of the Board of Immigration Appeal’s

(“BIA”) dismissal of his appeal of the denial of his application for a waiver of

inadmissibility under § 212(h) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1182(h).

       Shade Lawal is a native and citizen of Nigeria. He became a lawful

permanent resident of the United States in 1981. In 2004, Lawal was convicted in

Georgia state court of theft by taking and sentenced to twenty-four months of

imprisonment. He was convicted again in 2008 in Georgia state court of

employment insurance fraud and sentenced to twelve months of imprisonment. In

2009, after leaving the United States for a two-week trip to Nigeria, Lawal lawfully

reentered. In 2010, the Department of Homeland Security initiated removal

proceedings against Lawal, charging him as removable for having been convicted

of two crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(ii), and for

having been convicted of an aggravated felony involving a theft offense, id. §

1227(a)(2)(A)(i).1 At his removal proceeding, Lawal submitted an application for

a § 212(h) waiver of inadmissibility. The Immigration Judge (“IJ”) denied the

       1
         Lawal’s theft offense served as the basis for the aggravated felony ground of removal,
8 U.S.C. § 1227(a)(2)(A)(iii), as well as one of the two convictions required for the multiple
convictions of crimes involving moral turpitude ground of removal, id. § 1227(a)(2)(A)(ii).
                                               2
              Case: 11-15495       Date Filed: 02/28/2013   Page: 3 of 12


application, finding that Lawal was not eligible for a waiver because he had been

convicted of an aggravated felony after he had been previously admitted to the

United States as a lawful permanent resident.

      Lawal appealed the IJ’s denial of his waiver application to the BIA. Citing

our decision in Lanier v. U.S. Att’y Gen., 631 F.3d 1363 (11th Cir. 2011), the BIA

agreed with Lawal that his convictions did not render him ineligible for a § 212(h)

waiver. Nevertheless, the BIA dismissed the appeal after finding that Lawal was

ineligible for the waiver because he failed to concurrently file an application for

adjustment of status with his waiver application. See 8 C.F.R. § 1245.1(f) (“[A]n

application [for adjustment of status] under this part shall be the sole method of

requesting the exercise of discretion under sections 212(g), (h), (i), and (k) of the

Act, as they relate to the inadmissibility of an alien in the United States.”). Lawal

now petitions this court to review the BIA’s decision and claims that the BIA

ignored its own binding precedent, Matter of Sanchez, 17 I. & N. Dec. 218 (BIA

1980), in dismissing his appeal.

      Lawal argues that the BIA’s decision in Sanchez permits an alien in his

circumstances—an alien who has departed the United States and lawfully returned

after becoming subject to removal—to apply for a § 212(h) waiver without filing

an application for adjustment of status. In Sanchez, a Mexican native entered the

United States as a lawful permanent resident and lived here from 1965 to 1970. In


                                            3
                Case: 11-15495       Date Filed: 02/28/2013        Page: 4 of 12


1970, he moved to Mexico and commuted daily into the United States for work

until 1976, when he began residing with his family in the United States. After a

visit to Mexico in 1976, he was arrested at the U.S. border before he could seek

entry 2 into the United States. He was taken into custody, charged with mail fraud,

and released the next day into the United States pending his trial—upon his release

from custody, the immigration laws treated Sanchez as having entered the United

States. Id. at 220. Sanchez eventually pleaded guilty to the mail fraud charge and

in 1977 was given a suspended sentence of twelve months and one day. Under the

immigration laws, Sanchez’s conviction rendered him excludable should he depart

and try to reenter the country. Id. at 222-23. Nevertheless, Sanchez made many

2
  Immigration cases prior to 1996 use different terminology from immigration cases after 1996.
Before Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), an alien’s legal status was determined by whether he had made an “entry” into
the United States. “An alien could achieve ‘entry’ by physically crossing into United States
territory regardless of whether the alien crossed legally or evaded inspection.” Poveda v. U.S.
Att’y Gen., 692 F.3d 1168, 1174 (11th Cir. 2012). Aliens who had not yet entered the United
States, and were barred from entering under the immigration laws, were deemed “excludable”
and subject to exclusion hearings. Id. Aliens who had entered the United States, with or without
inspection, were deemed “deportable” and subject to deportation proceedings. Id. With the
passage of the IIRIRA, the term “entry” was replaced with the term “admission,” see 8 U.S.C. §
1101(a)(13)(A), an alien deemed “excludable” was now considered “inadmissible,” see id. §
1182, and exclusion proceedings and deportation proceedings were replaced with a unified
“removal proceeding” tasked with determining both inadmissibility and deportability, see id.§
1229(a). The term “deportable” no longer merely refers to an alien in the United States; now it
refers to an alien in and admitted to the United States who is subject to removal. See id. §
1227(a). Additionally, the procedure by which an alien is removed from the United States no
longer turns on the physical location of the alien. See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1326 (11th Cir. 2003). “The distinction now turns on status rather than location. An alien in the
United States who has been admitted is subject to deportability grounds, while an alien who has
not, regardless of his or her location, is subject to inadmissibility grounds.” Poveda, 692 F.3d at
1174-75 (internal citations omitted). When discussing cases that were decided prior to 1996, we
use the terms entry and excludable. When discussing cases that were decided after 1996, we use
the terms admitted and inadmissible.
                                                 4
                Case: 11-15495        Date Filed: 02/28/2013       Page: 5 of 12


brief trips to Mexico after his conviction and was never denied entry upon his

return. Id. at 222. Instead of excluding Sanchez at the border after these trips, in

1978 the United States initiated deportation proceedings against him for having

been “convicted of a crime of moral turpitude committed within five years after

entry.” Id. at 220.

       During the course of these proceedings, Sanchez sought a § 212(h) waiver.

Because the facts rendering Sanchez deportable were the same as what rendered

him excludable, the BIA found that Sanchez could be eligible for a § 212(h)

waiver. 3 Id. at 222 (concluding that relief under § 212(h) “may be granted nunc

pro tunc in deportation proceedings in order to cure a ground of [excludability] at

the time of entry”). By permitting access to the § 212(h) waiver nunc pro tunc, the

BIA effectively treated Sanchez’s waiver application as if he were seeking

admission at the border, even though Sanchez was in a deportation proceeding.

See id. at 223 (“[A] waiver of the ground of [excludability] may be granted in a

deportation proceeding when, at the time of the alien’s last entry, he was

[excludable] because of the same facts which form the basis of his

deportability.”). 4


3
  The BIA’s final determination of § 212(h) eligibility in Sanchez was contingent upon the
outcome of certain other inquiries not relevant here.
4
  8 C.F.R. § 1245.1, the Department of Homeland Security’ s current regulation governing the
adjustment of status applications, indicates that filing an adjustment of status application is “the
sole method” for an alien located “in the United States” to seek a § 212(h) waiver. 8 C.F.R. §
1245.1(f). Despite § 1245.1(f)’s exclusive wording, § 1245.1(f)’s virtually identical predecessor,
                                                 5
                Case: 11-15495        Date Filed: 02/28/2013         Page: 6 of 12


       The BIA’s decision in Sanchez established that aliens who become

excludable after an original lawful entry may later be deported from the United

States if they depart and return, but they may also be eligible for waivers of

excludability after they have reentered. Following Sanchez, the BIA’s policies

effectively created two classes of deportable aliens who were eligible for a §

212(h) waiver: (1) deportees who had not left the country since becoming

deportable that filed an adjustment of status application while seeking the § 212(h)

waiver, see 8 C.F.R. § 1245.1(f); and, after Sanchez, (2) deportees who had

departed and returned to the United States whose grounds for deportation were

based on the same facts that rendered them excludable at their last entry. 5

Deportees belonging to the second class were not required to submit an application

for adjustment of status with their application for the § 212(h) waiver.

       Decisions of this court and changes in the immigration laws, however, have

called Sanchez’s viability into question. In Yeung v. INS, 76 F.3d 337, 341 (11th


§ 245.1(f), was in place when Sanchez was decided. See Adjustment of Status to That of Person
Admitted for Permanent Residence, 30 Fed. Reg. 14778 (Nov. 30, 1965) (“[A]n application
under this part shall be the sole method of requesting the exercise of discretion under sections
212(g), (h), and (i) of the Act, insofar as they relate to the excludability of an alien in the United
States.”). Sanchez, however, was held to be eligible for § 212(h) relief without having to submit
an application for adjustment of status. Accordingly, Sanchez effectively created another method
to obtain § 212(h) relief for aliens in the United States in addition to the “sole method” described
in the regulation.
5
  Aliens who are seeking admission into the United States at the border (but who have not yet
entered and been admitted) are also eligible for a § 212(h) waiver without having to submit an
adjustment of status application. See Matter of Abosi, 24 I. & N. Dec. 204, 207 (BIA 2007).
Aliens in this scenario are not considered “deportable” because they are not in, and have not
been admitted to, the United States. See 8 U.S.C. § 1227(a).
                                                  6
               Case: 11-15495       Date Filed: 02/28/2013       Page: 7 of 12


Cir. 1995), a lawful permanent resident—who was ineligible to apply for an

adjustment of status and who had remained in the United States after being

convicted of a deportable offense—challenged the BIA’s policy of permitting only

those aliens who departed and returned to the United States to seek a § 212(h)

waiver without also filing for an adjustment of status, arguing that this policy was a

violation of the equal protection component of the Fifth Amendment’s due process

clause. We agreed and held that no rational basis existed for the BIA’s position

that an alien is ineligible for the § 212(h) waiver “simply by virtue of his failure to

depart and reenter.” Id. at 340. We remanded the case to the BIA to reconsider its

prior interpretation of § 212(h) in light of that holding. 6

       Recently, in Poveda v. U.S. Att’y Gen., 692 F.3d 1168 (11th Cir. 2012), we

indicated that, following our holding in Yeung and the substantial revision to the

immigration laws by the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), the BIA had altered its position on § 212(h) eligibility

with regards to whether a deportable alien had departed and reentered the United
6
  Following our ruling in Yeung but before the BIA issued a new decision, Congress passed the
IIRIRA. That legislation made two changes to the immigration laws relevant to the
determination of Yeung’s case: (1) the IIRIRA barred an alien previously admitted as a lawful
permanent resident from obtaining a § 212(h) waiver if the alien had been convicted of an
aggravated felony; and (2) this new bar applied retroactively to aliens who were in exclusion or
deportation proceedings on the date of enactment of the IIRIRA. Pub. L. No. 104-208, § 348,
110 Stat. 3009-546, 3009-639. On remand, instead of addressing this court’s holding in Yeung
that found the BIA’s interpretation of § 212(h) unconstitutional, the BIA found that Yeung was
not eligible for the waiver because (1) Yeung had been convicted of an aggravated felony after
having been previously admitted into the United States as a lawful permanent resident and (2)
the IIRIRA applied retroactively to Yeung’s case. Matter of Yeung, 21 I. & N. Dec. 610, 611-12
(BIA 1996).
                                               7
              Case: 11-15495     Date Filed: 02/28/2013   Page: 8 of 12


States. In Poveda, a lawful permanent resident—who was deemed ineligible for a

§ 212(h) waiver because he failed to also file an application for adjustment of

status—raised the same equal protection claim brought in Yeung. We rejected this

argument, noting that the BIA had “backed away from” the international

travel/lack of international travel distinction it employed in Yeung. Poveda, 692

F.3d at 1174. Now, the BIA differentiates “between those criminal aliens who

seek to be admitted to the United States, and those criminal aliens who are being

deported from the United States.” Id. at 1177 (quoting Klementanovksy v.

Gonzales, 501 F.3d 788, 793 (7th Cir. 2007)). Eligibility for a § 212(h) waiver,

therefore, is now available in two situations:

      first, the Attorney General may provide a [§ 212(h)] waiver to an alien
      at the border who seeks admission, including an alien who has
      departed the United States after committing a deportable offense, so
      long as the alien remains outside our borders while applying for
      relief; and second, the Attorney General may provide a [§ 212(h)]
      waiver to an alien within our borders after his conviction for a
      deportable offense so long as he applies for an adjustment of status.

Id. at 1173 (emphasis added).

      Lawal’s case reveals that ambiguity exists between the BIA’s current

interpretation of § 212(h) as articulated in Poveda, prior BIA precedent

under Sanchez, and the immigration statutes. Currently, a lawful permanent

resident who returns from abroad typically is not regarded as an applicant

for admission under the immigration laws. See 8 U.S.C. § 1101(a)(13)(C).


                                          8
                Case: 11-15495       Date Filed: 02/28/2013        Page: 9 of 12


But a lawful permanent resident who is convicted of certain crimes before

departing the United States is considered an applicant for admission upon his

return. Id. § 1101(a)(13)(C)(v). Because Lawal left the country after

committing his fraud and theft offenses, the immigration laws considered

him as seeking admission at the time he returned to the United States. See

id. §§ 1182(a)(2); 1101(a)(13)(C)(v). The manner in which the immigration

statutes regard an alien in Lawal’s circumstances—as an alien seeking

admission—raises some questions as to how he should be treated in light of

BIA precedent.

       BIA precedent has established that in certain circumstances an alien in

the United States subject to deportation is nevertheless treated as if he were

outside the border seeking admission into the United States. Under Sanchez,

the BIA has treated an alien in a deportation proceeding that seeks a §

212(h) waiver as if he were seeking admission into the United States,

provided that the alien was inadmissible at the time of the alien’s last entry. 7

See Sanchez, 17 I. & N. Dec. at 223.


7
  This approach has long been employed by the BIA. See e.g., Matter of L—, 1 I. & N. Dec. 1, 5
(BIA, A.G. 1940). In Matter of L—, an alien lawfully residing in the United States was
convicted of larceny and later briefly departed from the United States. Under the immigration
laws in place in 1940, L—’s conviction rendered him excludable if he departed the United
States—but such excludability could be waived pursuant to the discretion of the Attorney
General. Id. at 4. At the time, the power to grant a discretionary waiver appeared in the
statutory sections relating to the exclusion of aliens seeking entry into the United States, but no
corresponding waiver was present in sections involving deportation. Id. Upon L—’s return, he
                                                 9
               Case: 11-15495       Date Filed: 02/28/2013       Page: 10 of 12


       Similarly, 8 C.F.R. § 1245.1(f) treats an alien in the United States who

has submitted an application for adjustment of status as if the alien were

outside the country seeking admission into the United States. See Cabral v.

Holder, 632 F.3d 886, 891 (5th Cir. 2011) (“[A]liens who are already in the

United States must apply for an adjustment of status under 8 U.S.C. § 1255;

upon application, the applicant is assimilated to the position of an alien

outside the United States seeking entry as an immigrant.”) (internal

quotation marks omitted); Matter of Gonzalez-Camarillo, 21 I. & N. Dec.

937, 947-50 (BIA 1997) (Rosenberg, dissenting) (cataloguing prior BIA

precedent acknowledging that an individual seeking adjustment of status in a

deportation proceeding is assimilated to the position of an alien outside our

borders seeking admission into the United States).

       The BIA’s current interpretation of § 212(h) permits the Attorney

General to grant a waiver to “an alien at the border who seeks admission,

including an alien who has departed the United States after committing a


was permitted entry into the United States, though the border inspector could have denied his
entry because of his conviction. Id. at 3. Later, L— was placed in deportation proceedings and
was ordered removed from the country. On appeal of this order, the Board of Review certified
L—’s case to the Attorney General, who concluded that there would be great inequity to grant
relief to aliens who were stopped and challenged upon reentry but deny relief to those aliens who
were excludable, nonetheless permitted entry, and later charged with being deportable. Id. at 5.
Accordingly, the Attorney General ruled that an alien who was excludable at the time of reentry
but had been granted entry to the United States and later was subjected to deportation
proceedings could be granted nunc pro tunc relief, where the alien would be treated as if he were
applying for permission to enter the country from “outside the United States.” Id. at 6. Sanchez
is an extension of the practice established in L—.
                                               10
             Case: 11-15495     Date Filed: 02/28/2013    Page: 11 of 12


deportable offense, so long as the alien remains outside our borders while

applying for relief.” Poveda, 692 F.3d at 1173. But, as we have seen, BIA

precedent already treats certain aliens in the United States as if they were

outside our borders seeking admission into the United States. See e.g.,

Sanchez, 17 I. & N. Dec. at 223. It is thus unclear whether the BIA’s current

interpretation of § 212(h)—that an alien seeking § 212(h) relief who has not

filed an adjustment of status application must remain “outside our borders

while applying for relief”—overrules Sanchez, or if the BIA’s current

interpretation essentially functions as a continuation of its precedent under

Sanchez, in which case the BIA would treat an alien satisfying the conditions

of Sanchez as if the alien were “outside our borders while applying for

relief.”

       This is “an area of law where uniformity is particularly important.”

Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir. 1993) (en banc). “When the BIA

has not spoken on a matter that statutes place primarily in agency hands, our

ordinary rule is to remand to give the BIA the opportunity to address the matter in

the first instance in light of its own expertise.” Negusie v. Holder, 555 U.S. 511,

517, 129 S.Ct. 1159, 1164, 173 L.Ed.2d 20 (2009) (internal quotation marks

omitted). We therefore remand to the BIA for the purpose of allowing it to

consider Lawal’s case in light of our intervening decision in Poveda and—if the


                                          11
             Case: 11-15495        Date Filed: 02/28/2013   Page: 12 of 12


BIA deems that Sanchez is not overruled—to apply Sanchez to Lawal’s case if the

BIA finds that it is applicable.

      The BIA also found that Lawal was ineligible for a § 212(h) waiver under

the BIA’s comparable grounds rule. In Matter of Blake, 23 I. & N. Dec. 722, 729

(BIA 2005), the BIA held that an alien who was deportable based on a charge of

deportability to which there was no comparable ground of inadmissibility was

ineligible for a waiver under former § 212(c) of the Immigration and Nationality

Act. The BIA applied this comparable grounds rule to Lawal in the context of his

application for a § 212(h) waiver and found that no comparable ground of

inadmissibility existed. The Supreme Court, however, has recently struck down

the BIA’s comparable grounds rule as arbitrary and capricious. Judulang v.

Holder, 132 S.Ct. 476, 477, 181 L.Ed.2d 449 (2011). Accordingly, on remand, the

BIA is also to reconsider Lawal’s case in light of the Supreme Court’s holding in

Judulang.

      VACATED and REMANDED.




                                            12
