Jorge O. Arevalo v. U.S. Attorney General

Case: 16-11458 Date Filed: 10/06/2017 Page: 1 of 29 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-11458 ________________________ Agency No. A070-064-351 JORGE O. AREVALO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (October 6, 2017) Case: 16-11458 Date Filed: 10/06/2017 Page: 2 of 29 Before JULIE CARNES and FAY, Circuit Judges, and GOLDBERG, * Judge. PER CURIAM: This appeal requires the Court to determine whether to grant deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), to the Board of Immigration Appeals’s (“BIA”) interpretation of § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), in the context of an application for cancellation of removal under § 240A(b)(2)(A) of the INA, 8 U.S.C. § 1229b(b)(2)(A). Section 1182(h) is a waiver provision: Under certain defined circumstances, it permits the Attorney General to waive an immigrant’s inadmissibility to the United States, including in cases where the immigrant has committed a crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A) (establishing that an alien who has committed a crime involving moral turpitude is generally inadmissible). The statutory framework does not clarify whether the § 1182(h) waiver applies to applicants seeking relief under § 1229b(b)(2)(A), a “special rule” whereby an otherwise inadmissible immigrant who has been the victim of domestic violence may cancel his removal from the United States if he meets specified criteria * Honorable Richard W. Goldberg, Judge for the United States Court of International Trade, sitting by designation. 2 Case: 16-11458 Date Filed: 10/06/2017 Page: 3 of 29 (hereinafter, the “Special Rule”). One of those criteria, however, states that the immigrant must not be inadmissible as a result of his commission of a crime involving moral turpitude. 8 U.S.C. § 1229b(b)(2)(A)(iv). Petitioner Jorge Arevalo was charged with inadmissibility and sought to cancel his removal from the country under the Special Rule. Standing in his way were two convictions for two separate crimes of moral turpitude: petty theft and child abuse. To avoid the impact of these convictions, he applied for a waiver of inadmissibility under § 1182(h). The Immigration Judge (“IJ”) presiding over Arevalo’s case denied his application for waiver. On appeal, the BIA confirmed that a petitioner who has committed a crime of moral turpitude and who is seeking to cancel his removal under the Special Rule is not entitled to use the § 1182(h) waiver to bring himself into compliance with the Special Rule’s requirements. With the benefit of oral argument and after careful review of the statutory framework, we conclude that the BIA’s interpretation is entitled to deference under Chevron and DENY Arevalo’s petition for review. 3 Case: 16-11458 Date Filed: 10/06/2017 Page: 4 of 29 BACKGROUND 1 Jorge Arevalo is a native and citizen of Guatemala. He entered the United States without being admitted or paroled near Newberry Park, California, on or around December 1, 1986. As such, he ...

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