Bracamontes v. Holder, Nos. 10-2033, 10-2280

Decided Mar. 29, 2012

Adolfo Rendon Bracamontes was illegally brought into the country from Mexico by his mother when he was a small child. After receiving temporary resident status in 1987, Bracamontes achieved lawful permanent residence status in 1990. However, in 1999, Bracamontes pleaded guilty to felony malicious wounding and was sentenced to ten years. He later married a United States citizen and had three biological children. In 2009, Bracamontes filed for an Application to Register Permanent Residence or Adjust Status and argued that he was entitled to waiver of removal, despite his felony conviction, because of the undue hardship it would cause his wife and children. He also sought protection under the United Nations Convention Against Torture because, he alleged, a return to Mexico would subject him to revenge from gangs with which he had refused to associate while in the United States. His application was denied because, since he was already a lawful permanent resident, he was not subject to an adjustment of status. Furthermore, the immigration judge found that he was not subject to waiver of removal because of his felony status.

On appeal, the Fourth Circuit held that the language of the relevant statute was unambiguous and led to a conclusion that “section 212(h) bars only those aliens who have committed aggravated felonies and who have previously been admitted to the United States with lawful permanent resident status from seeking a waiver of inadmissibility. Because he adjusted post-entry to lawful permanent resident status, Petitioner does not fall within that statutory exclusion.” The order of removal by the Board of Immigration appeals was therefore vacated and remanded. However, the court also held that it did not have jurisdiction to hear Bracamontes’ Convention Against Torture claim but because his case was already remanded, the matter was essentially moot.

Judge Niemeyer dissented in part. He would find that the statute was ambiguous. Moreover, he noted that while the court’s construction was plausible, he thinks the BIA’s construction was equally, if not more, plausible and would therefore defer to their judgment and affirm the removal.

Full Opinion

-C. Alexander Cable

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