On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A040-501-894.
The opinion of the court was delivered by: D.W. Nelson, Senior Circuit Judge
Argued and Submitted April 8, 2010 -- Pasadena, California
Before: Daniel M. Friedman,*fn1 Dorothy W. Nelson, and Stephen Reinhardt, Circuit Judges.
We must decide whether an individual whose mother is a United States citizen continues to be "the son... of a citizen of the United States," as set forth at 8 U.S.C. § 1227(a)(1)(H)(i), after his mother's death. We hold that he does.
Petitioner Rolando Federiso is a Filipino national. His mother, who was also a Filipino national, moved to the United States and became a U.S. citizen. Federiso applied to the United States Embassy in Manila for a visa for entry to the United States with the intent to remain permanently. The State Department prioritizes visa applications made by "the unmarried sons or daughters of citizens of the United States." 8 U.S.C. § 1153(a)(1). During his visa application process, Federiso indicated - falsely - that he was unmarried. He was issued a visa, immigrated, adjusted to lawful permanent resident status, and began his life in the United States.
Fifteen years later, the Government initiated removal proceedings against Federiso. The Government alleged, and Federiso conceded, that Federiso violated 8 U.S.C. § 1182(a)(6)(C)(i), which forbids procuring a visa by willfully misrepresenting a material fact. Federiso requested relief under 8 U.S.C. § 1227(a)(1)(H)(i), which gives an immigration judge ("IJ") the discretion to waive the removal of an immigrant who procured a visa through willful misrepresentation. 8 U.S.C. § 1227(a)(1)(H) (granting this discretion to the Attorney General); 8 C.F.R. § 1240.1(a)(1) (delegating Attorney General's discretionary authority to IJs). Only an alien who "is the spouse, parent, son, or daughter" of a U.S. citizen or lawful permanent resident is eligible to apply for a § 1227(a)(1)(H)(i) waiver.
The removal proceedings against Federiso dragged on for years. After the proceedings had been initiated, but before the hearing on Federiso's request for § 1227(a)(1)(H)(i) relief, Federiso's mother died. At the hearing, Federiso and the Government disagreed about whether Federiso was still eligible to apply for a § 1227(a)(1)(H)(i) waiver. The IJ held that he was, since Federiso "continues to be the son of a United States citizen" after the death of his U.S. citizen mother. The IJ then examined a long list of equities in Federiso's favor, which we do not recount here, and granted Federiso a waiver.
The BIA interpreted § 1227(a)(1)(H)(i) differently. Sustaining the Government's appeal, the BIA held that "to be eligible for a waiver of removal" under § 1227(a)(1)(H)(i), "an alien must establish a qualifying relationship to a living relative." Matter of Federiso, 24 I. & N. Dec. 661, 661 (BIA 2008) (emphasis added). Because Federiso's mother was no longer living, the BIA held that Federiso was no longer eligible to apply for a § 1227(a)(1)(H)(i) waiver. Id. at 664. The BIA vacated the IJ's decision and ordered Federiso removed to the Philippines. Id.
Federiso timely filed the petition for review now before us, over which we have jurisdiction pursuant to 8 U.S.C. § 1252(a).
Section 1227(a)(1)(H)(i) is part of the Immigration and Nationality Act ("INA"). We review BIA determinations of purely legal issues regarding the INA de novo. Kankamalage v. I.N.S., 335 F.3d 858, 861 (9th Cir. 2003). When the BIA interprets a provision of the INA, we first determine if there is any ambiguity in the statute using traditional tools of statutory interpretation. Id. at 862. (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9 (1984)). Only if we determine that a statute is ambiguous do we ...