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Rivas v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

September 3, 2014

GIOVANNY RIVAS, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent

Petition for certiorari filed at, 12/02/2014

Page 1325

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A046-569-593.

For Giovanny Rivas, Petitioner: Claudia Nancy Del Castillo-Hronsky, Immigration Counsels, LLC, Miami, FL.

For U.S. Attorney General, Respondent: Holly Smith, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC; Joanna L. Watson, David V. Bernal, Ernesto Horacio Molina Jr., Krystal Samuels, U.S. Department of Justice, Civil Division, Washington, DC; Michelle Ressler, District Counsel's Office, Usice, Miami, FL.

For Catholic Legal Services, Amicus Curiae: Michael S. Vastine, St. Thomas University School of Law, Miami Gardens, FL.

Before WILSON, PRYOR and ROSENBAUM, Circuit Judges.

OPINION

Page 1326

PRYOR, Circuit Judge:

This petition for review requires us to decide whether a deportable alien who has left and reentered the United States may obtain nunc pro tunc a waiver of inadmissibility. See Immigration and Nationality Act § 212(h), 8 U.S.C. § 1182(h). The State of Florida twice convicted petitioner Giovanny Rivas of petit larceny, which rendered him removable. But before the Department of Homeland Security initiated removal proceedings, Rivas left the United States and then reentered on three separate occasions without notifying border officials of his ineligibility to reenter. After the Department initiated removal proceedings, an immigration judge granted Rivas a waiver of inadmissibility, 8 U.S.C. § 1182(h), based on Matter of Sanchez, 17 I. & N. Dec 218 (BIA 1980) (holding that a waiver is retroactively available if an alien could have received one when seeking reentry at the border but who now seeks one from within the United States). When the Department appealed, the Board of Immigration Appeals interpreted the waiver provision, 8 U.S.C. § 1182(h), which Congress amended after the Board decided Matter of Sanchez, to require that an alien seek a waiver of inadmissibility when he applies for a visa, admission to the United States, or an adjustment of status. The Board ordered Rivas removed on the ground that he failed to file an application for an adjustment of status concurrently with his application for a waiver. Because that interpretation of the waiver provision, as amended, was reasonable, we deny Rivas's petition for review.

I. BACKGROUND

Rivas is a native and citizen of Colombia, but he has continuously resided in the United States after receiving lawful permanent resident status in 1998. The State of Florida convicted him first in January 2001 and again in July 2001 for petit larceny. He then left the United States three times and later reentered the country on May 12, 2004, April 3, 2005, and June 23, 2006. Each time Rivas returned to the United States through the Miami International Airport, the border officers neither detained nor questioned him.

In December 2007, Rivas applied for United States citizenship, but the Department of Homeland Security denied his application based on his criminal convictions. The Department then initiated removal proceedings because Florida convicted Rivas of two crimes involving moral turpitude that did not arise out of a single scheme of criminal misconduct after his lawful admission to the United States. See 8 ...


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