Giovanni Vella v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: SHWARTZ, ROTH and RENDELL, Circuit Judges. Total Pages: 10. Judge: SHWARTZ Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3478
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GIOVANNI VELLA,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
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On Petition for Review from an Order of
The Board of Immigration Appeals
Agency No. A017-541-320
Immigration Judge: Hon. Walter A. Durling
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 12, 2018
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Before: SHWARTZ, ROTH, and RENDELL, Circuit Judges.
(Filed: August 2, 2018)
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OPINION*
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*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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SHWARTZ, Circuit Judge.
Giovanni Vella petitions for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from the Immigration Judge’s (“IJ”) decision,
which denied his application for a waiver of inadmissibility under § 212(h) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h). For the reasons that
follow, we will deny the petition.
I
Vella, a native and citizen of Italy, was admitted to the United States as a lawful
permanent resident (“LPR”) in 1967, at age twelve. In 2007, he was convicted of
conspiracy to operate an illegal gambling business in violation of 18 U.S.C. § 371 and
was sentenced to four months’ imprisonment. Two years later, the Department of
Homeland Security (“DHS”) charged him with removability under 8 U.S.C. §
1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony offense. He was
subsequently granted adjustment of status.
In 2015, Vella pleaded guilty to conspiracy to commit extortion in violation of 18
U.S.C. § 1951(a) and was sentenced to twelve months and a day of imprisonment. DHS
charged him with removability, and he sought to re-adjust his status to that of an LPR.
The IJ sustained the charge of removability and concluded that Vella was not eligible for
re-adjustment of his status and could not obtain a waiver of inadmissibility under §
212(h) because he was admitted to the United States as an LPR and thereafter committed
an aggravated felony.

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Vella appealed to the BIA, which sustained the appeal in part and remanded to the
IJ. On remand, DHS charged Vella with two additional grounds of removability.1 The IJ
sustained the charges and determined that Vella was not eligible for a waiver of
inadmissibility under § 212(h) because such relief is available only to aliens who
received LPR status after being admitted to the United States, and under Hanif v.
Attorney General, 694 F.3d 479, 484 (3d Cir. 2012), Vella was “previously admitted” as
an LPR when he entered the United States in 1967, not when he re-adjusted his status in
2009. The IJ thus ordered Vella removed to Italy, and Vella appealed.
The BIA dismissed Vella’s appeal. Matter of Giovanni Rosalia Vella, 27 I. & N.
Dec. 138, 141 (B.I.A. 2017). The B.I.A. concluded that § 212(h) bars aliens who had
“previously been admitted to the United States as an alien lawfully admitted for
permanent residence” from obtaining a waiver of inadmissibility and that an alien who
has been “previously been admitted” is one who was “inspected, admitted, and physically
entered the country as [an LPR] at any time in the past, even if such admission was not
the alien’s most recent acquisition of lawful permanent resident status.” Id. at 138-40.
(citing Dobrova v. Holder, 607 F.3d 297, 301-02 (2d Cir. 2010) (internal quotation marks
omitted)). Because Vella (1) was inspected, admitted, and physically entered the country
as an LPR, and (2) was subsequently convicted of an aggravated felony, the BIA held he

1

Specifically, DHS charged Vella with removability under 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony offense, as defined in
8 U.S.C. § 1101(a)(43)(G) (a theft or burglary offense for which the term of
imprisonment is at least one year), and 8 U.S.C. 1227(a)(2)(A)(iii), as an alien convicted
of an aggravated felony offense, as defined in 8 U.S.C. § 1101(a)(43)(U) (a law relating
to an attempt or conspiracy to commit an offense described in that section).
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was barred from obtaining a waiver of inadmissibility under § 212(h).2 Id. at 141. Vella
argued that § 212(h) violates equal protection because it treated him differently from an
alien who obtained LPR status after entering the United States, but the BIA said it lacked
the authority to consider that argument.
Vella petitions for review.
II3
We lack “jurisdiction to review any final order of removal against an alien [like
Vella] who is removable by reason of having committed” an aggravated felony, except
that we may review “constitutional claims or questions of law,” 8 U.S.C. §
1252(a)(2)(C)-(D); Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010). We
conduct de novo review of Vella’s constitutional challenge. De Leon-Reynoso v.
Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002).

The BIA also concluded that Vella’s “2009 adjustment of status does not
preclude a finding that he is ineligible for a waiver under this provision” because
“‘admission’ involves physical entrance into the country, which is inapposite to
adjustment of status in removal proceedings, a procedure that is structured to take place
entirely within the United States.” Matter of Vella, 27 I. & N. Dec. at 141 (quoting
Taveras v. Att’y Gen., 731 F.3d 281, 290 (3d Cir. 2013)).
3
The IJ had jurisdiction over Vella’s immigration proceedings under 8 C.F.R.
§ 1240.1(a), and the BIA had jurisdiction over the appeal pursuant to 8 C.F.R.
§ 1003.1(b)(3).
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III
Vella argues that § 212(h) violates equal protection and thus its bar to allowing
him to seek a waiver of inadmissibility is void. Before addressing his constitutional
claim, we will first review the statutory framework.
A
An alien who is found removable may seek relief from deportation by applying to
adjust his status to that of an LPR based on the petition of an immediate relative.
8 U.S.C. § 1255. Under the statute, the Attorney General may, in his discretion, adjust
the status of an alien in removal proceedings to that of an alien lawfully admitted for
permanent residence if, among other things, the alien is admissible to the United States
for permanent residence. De Leon-Reynoso, 293 F.3d at 637. An alien is inadmissible to
the United States if he has been convicted of a crime of moral turpitude. 8 U.S.C.
§ 1182(a)(2)(A)(i)(1).
Pursuant to § 212(h), the Attorney General in his discretion may waive an alien’s
inadmissibility for certain crimes if the alien is a spouse, parent, or child of a United
States citizen or permanent resident alien and can show that “denial of admission would
result in extreme hardship” to the qualifying relative. 8 U.S.C. § 1182(h)(1)(B); De
Leon-Reynoso, 293 F.3d at 637. A waiver is unavailable, however, for certain aliens:
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 either since the date of such admission
the alien has been convicted of an aggravated felony or the alien has not
lawfully resided continuously in the United States for a period of not less
than 7 years immediately preceding the date of initiation of proceedings to
remove the alien from the United States.
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8 U.S.C. § 1182(h). Thus, an alien is not eligible for a waiver of inadmissibility if the
alien has (1) previously been admitted to the United States as an alien lawfully admitted
for permanent residence and (2) then either (a) been convicted of an aggravated felony or
(b) not lawfully resided continuously in the United States for seven years. Id. § 1182; De
Leon-Reynoso, 293 F.3d at 637.
Vella does not challenge the BIA’s ruling that he was “previously admitted to the
United States as an alien lawfully admitted for permanent residence” under § 212(h) in
1967.4 Matter of Vella, 27 I. & N. Dec. at 141. He also does not dispute that he was
convicted of aggravated felonies after his admission as an LPR.5 Rather, he argues that
§ 212(h) violates equal protection by allowing certain LPRs to seek a waiver of
inadmissibility based solely on how they obtained their status. More specifically,
according to Vella, the statute creates two classes of LPRs and violates equal protection
because an LPR who first obtained permanent resident status within the United States
through adjustment of status (“LPR-adjust”) can apply for a waiver of inadmissibility

Vella also does not challenge the BIA’s conclusion that the adjustment to his
status in 2009 following his first conviction does not qualify as an “admission” under
§ 212(h).
5
Vella was originally admitted to the United States as an LPR in 1967 and then
adjusted his status to re-acquire permanent residency in 2009, after he was found
removable following his conviction for conspiracy to operate an illegal gambling
business. In 2017, while in removal proceedings following his conviction for conspiracy
to commit extortion, he again sought to re-adjust his status to that of a permanent
resident, but because his conviction constituted a crime involving moral turpitude, he was
rendered inadmissible to the United States. Thus, he was ineligible for an adjustment of
status unless he obtained a waiver of inadmissibility under § 212(h).
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under § 212(h), whereas an LPR who was admitted to the United States with that status
(“LPR-admit”)—like Vella—cannot.
B
A petitioner asserting an equal protection claim must establish that (1) two classes
of aliens are treated differently, (2) the two classes are similarly situated, and (3) there is
no rational basis for the different treatment. See Flores-Nova v. Att’y Gen., 652 F.3d
488, 492-93 (3d Cir. 2011). The parties do not dispute, and many of our sister circuits
have recognized, that § 212(h)’s waiver bar treats two classes of aliens—LPR-adjust
aliens and LPR-admit aliens—differently. Medina-Rosales v. Holder, 778 F.3d 1140,
1144 (10th Cir. 2015) (collecting cases). Only aliens who become LPRs after having
entered the United States may apply for the waiver and Vella contends there is no basis
for the different treatment.
Given Congress’s “broad powers over immigration and naturalization,” De LeonReynoso, 293 F.3d at 638, we “appl[y] rational basis review to equal protection
challenges in the area of admission or removal of aliens,” id. “Under this minimal
standard of review, a classification is accorded ‘a strong presumption of validity,’”
DeSousa, 190 F.3d at 184 (quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993)), and “our
role is not to judge the wisdom or fairness of Congress’s policy choices, but rather their
constitutionality,” id. at 184-85.
Vella has failed to show there is no rational basis for the distinction between LPRadjust and LPR-admit aliens. Indeed, several of our sister circuits have recognized that
Congress may have had a rational basis for distinguishing in § 212(h) between different
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categories of LPRs, including the distinction between LPR-adjust aliens and LPR-admit
aliens. Medina-Rosales v. Holder, 778 F.3d 1140, 1146 (10th Cir. 2015) (rejecting
argument that “favoring one category of LPRs over another is arbitrary”); Leiba v.
Holder, 699 F.3d 346, 353 & n.5 (4th Cir. 2012) (concluding that “Congress may have
had rational reasons for making [] a distinction” between “aliens who obtained LPR
status after illegally entering the country [and] [] those who entered the country with LPR
status” (citations and internal quotation marks omitted)); Bracamontes v. Holder, 675
F.3d 380, 388 & n.5 (4th Cir. 2012) (agreeing “with our sister Circuits that Congress may
have had rational reasons for ‘distinguishing’ between LPR-admits and LPR-adjusts” and
noting that “courts have consistently overruled . . . equal protection challenges to the
distinction drawn under section 212(h) between illegal immigrants and those admitted as
lawful permanent residents”). The Court of Appeals for the Fifth Circuit in Martinez v.
Mukasey, 519 F.3d 532, 545 (5th Cir. 2008), explained that Congress “might rationally
have concluded that [LPR-adjust] aliens . . . are more deserving of being eligible for a
waiver of inadmissibility” because such aliens “developed ties here” and “went through
the scrutiny of adjustment, in which [their] record in the United States was examined,”
and it thus “could have concluded rationally that [such] individuals . . . 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.” Id. The Martinez court also reasoned that 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.’” Id. (quoting Lara-Ruiz v.
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INS, 241 F.3d 934, 947 (7th Cir. 2001) (noting that, in an equal protection challenge to
the distinction between LPRs and non-LPRs for § 212(h) waivers of inadmissibility, it
might have been “wiser, fairer, and more efficacious” not to have made such a
distinction, but a rational basis exists for the distinction on the ground that Congress may
have been taking an incremental approach to addressing its ultimate goals)). We have
cited Martinez with approval and agreed with its view that “the distinction between aliens
admitted to the United States as LPRs and aliens who convert to LPR status while in the
country may have been Congress’s first step in reaching its goal of expediting the
removal of criminal aliens.” Hanif, 694 F.3d at 487.
Moreover, in a slightly different context, our Court rejected an equal protection
challenge to the statute’s distinction between aliens who had not previously been
admitted to the United States (non-LPRs) and LPRs who had not resided in the United
States for seven consecutive years before removal proceedings were initiated. De LeonReynoso, 293 F.3d at 638-40. We noted that “Congress conceivably had good reasons to
create the distinction” in § 212(h) because, “[i]n legislation aimed at the legitimate
government interest of expediting the deportation of immigrants who commit serious
crimes in this country,” we could not conclude that “the distinction between the two
classes of aliens [was] irrational,” and hence the distinction survived rational basis
review. Id. at 640.
Even if we have a different view about the wisdom of the distinction, these policy
choices are for Congress. DeSousa, 190 F.3d at 184-85. Because there is a rational basis

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for barring aliens like Vella who entered the United States as LPRs, from obtaining a
waiver of inadmissibility, Vella’s equal protection challenge to § 212(h) must fail.
III
For the foregoing reasons, we will deny the petition.

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