Jarvin Orlando Lopez v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of an Order of the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 21-1490
______________
JARVIN ORLANDO LOPEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of an Order of the Board of
Immigration Appeals
(No. A094-481-777)
Immigration Judge: Walter Durling
______________
Argued January 26, 2022
Before: CHAGARES, Chief Judge, McKEE and MATEY,
Circuit Judges.
(Filed: September 9, 2022)

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Sandra L. Greene [Argued]
Greene Fitzgerald Advocates and Consultants
2575 Eastern Boulevard
Suite 208
York, PA 17402
Counsel for Petitioner
Brian M. Boynton
James A. Hurley [Argued]
Anna E. Juarez
United States Department of Justice
Office of Immigration Litigation
Room 5009
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______________
OPINION OF THE COURT
______________
MATEY, Circuit Judge.
Jarvin Lopez hopes to avoid deportation under § 203(b)
of the Nicaraguan Adjustment and Central American Relief
Act (“NACARA”), but he cannot meet the standard NACARA
applies to applicants removeable for certain drug offenses. So
he asks for a waiver of NACARA’s requirements under
§ 212(h) of the Immigration and Nationality Act (“INA”),
which applies to applications for adjustment of status. But
§ 212(h) is inapplicable because an application for NACARA

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cancellation of removal is not an application for adjustment of
status under the best reading of the INA. So we will deny
Lopez’s petition for review.
I.
A. The Statutes
A bit of background frames this controversy, so we
begin with a short history of the INA and NACARA. Enacted
in 1952, the INA governs noncitizens’ entrance into and
removal from the United States. See 8 U.S.C. §§ 1101–1537.
Among other mechanisms, the INA allows admissible aliens to
apply for “adjustment of status” to “an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1255. But it makes aliens
inadmissible for various reasons, including for committing an
enumerated criminal offense, 8 U.S.C. § 1182(a)(2), and
provides for their removal, 8 U.S.C. § 1229a. INA § 212(h), in
turn, gives the Attorney General discretion to grant a waiver of
inadmissibility for applicants who meet the eligibility
requirements. 8 U.S.C. § 1182(h).
NACARA came later, creating special eligibility
standards for suspension or cancellation of removal for certain
Salvadorans, Guatemalans, and Nicaraguans. NACARA
§§ 202, 203, Pub. L. No. 105-100, tit. II, 111 Stat. 2160 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997).
NACARA lets the Attorney General adjust the status of some
otherwise-inadmissible aliens to “lawfully admitted for
permanent residence,” allowing them to remain in the United
States. NACARA § 203(b). But Congress cabined his
discretion by imposing stricter standards for applicants who
have committed an offense that the INA lists as a ground for
inadmissibility. Id.

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This case asks whether aliens subject to these stricter
standards for NACARA cancellation of removal can use an
INA § 212(h) waiver to relax them again. We conclude that
they cannot.
B. Jarvin Lopez’s Story
Lopez is a citizen of El Salvador who entered the United
States without authorization in 2001. He conceded
removability when the Department of Homeland Security
(“DHS”) initiated removal in 2009, but he applied for relief
under NACARA. While removal proceedings continued,
Lopez was charged with possession of marijuana. Following a
guilty plea in 2015, DHS added a charge of removability under
the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(II), applicable to aliens
who committed a controlled substance offense. That triggered
a limiting provision in NACARA that bumps the requirement
of continuous presence in the United States from seven to ten
years, and restarts the clock from commission of the controlled
substance offense. NACARA § 203(b). Lopez agrees that his
2015 drug conviction makes him ineligible for relief under
NACARA. So he looked to the waiver provision in INA
§ 212(h) to excuse that added charge.
On a second look,1 the Board of Immigration Appeals
(“BIA”) denied Lopez relief, holding that a § 212(h) waiver
1 After Lopez’s request under NACARA was denied,
we remanded to the BIA to consider the “interplay among
NACARA, [§] 212(h) waiver, the related regulations, and the
reasoning of Matter of Y-N-P-[, 26 I. & N. Dec. 10 (BIA 2012)
(holding that § 212(h) waivers are not available concurrently
with applications for cancellation of removal and adjustment
of status brought under INA § 240A’s general cancellation of

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may not be used with an application for NACARA cancellation
of removal. Lopez filed this petition for review and, reading
the law as the BIA did, we will deny the petition.2
II.
Lopez argues that the BIA misinterpreted the interplay
between NACARA and § 212(h) waiver, a question of law we
consider de novo. Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d
Cir. 2017).3 To determine the best ordinary meaning, we start
with the older of the two provisions, INA § 212(h), before
asking how the later-enacted NACARA § 203(b) alters that
text. At least as to waivers, it does not.
removal provisions)] . . . and to articulate the reasoning
underlying its decision.” Lopez v. Att’y Gen., 757 F. App’x
163, 167 (3d Cir. 2018). The BIA followed that order in a
detailed decision, and we see no grounds for Lopez’s claim of
insufficient process.
2 The BIA had jurisdiction to review the Immigration
Judge’s removal decision under 8 C.F.R. § 1003.1(b)(3), and
we have jurisdiction over the Board’s final order of removal
under 8 U.S.C. § 1252(a)(1).
3 Although we agree the BIA reached the best reading
of these provisions, our duty is to examine the law
independently using the ordinary tools of statutory
interpretation. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 842–43 & n.9 (1984); see also Am. Hosp.
Ass’n v. Becerra, 142 S. Ct. 1896 (2022).

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A. INA § 212(h) Waivers Cannot Be Used for
Cancellation of Removal
INA § 212(h) states that “[t]he Attorney General may,
in his discretion, waive the application of [grounds of removal
based on certain drug offenses]” when he “has consented to the
alien’s applying or reapplying for a visa, for admission to the
United States, or adjustment of status.” 8 U.S.C. § 1182(h).
Section 212(h) gives the Attorney General limited discretion to
excuse the consequences of certain convictions for three
things: “a visa,” “admission,” and “adjustment of status.” Id.
And “[w]hen a statute limits a thing to be done in a particular
mode, it includes a negative of any other mode.” Raleigh &
G.R. Co. v. Reid, 80 U.S. 269, 270 (1871); see also Antonin
Scalia & Brian A. Garner, Reading Law: The Interpretation of
Legal Texts 107–12 (2012) (discussing the negative-
implication canon). Omitting “cancellation of removal” from
that list reflects a congressional choice, one seeming to place
NACARA applications outside of § 212(h) waivers.
But Lopez argues applications for NACARA
cancellation of removal are, despite their name, also
applications for “adjustment of status” under § 212(h) because
a successful application means, well, an adjustment of status to
lawful permanent resident. See NACARA § 203(b). And it is
true that NACARA § 203(b) permits the Attorney General to
“cancel removal of, and adjust to the status of [lawful
permanent resident],” an alien who qualifies for relief. Id. But
the meaning of § 212(h)’s phrase “adjustment of status” when
enacted excludes the possibility that the statute encompasses

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an application for both adjustment of status and cancellation of
removal.4
4 “Adjustment of status” and “cancellation of removal”
are not the sort of phrases you often hear at the corner coffee
shop. Polling a group of ordinary and competent English
speakers on what these six words mean is likely to produce
equal parts blank stares and reasonable guesses. But that does
not give courts license to invent a meaning to our liking.
Instead, when interpreting technical and specialized legal
language, we look not for the public meaning (as none is likely
to exist), but what we might call the legal meaning. See Richard
H. Fallon, Jr., The Meaning of Legal “Meaning” and Its
Implications for Theories of Legal Interpretation, 82 U. Chi.
L. Rev. 1235, 1244 (2015) (denoting by “legal meaning” “the
message or proposition that statutory or constitutional
language expresses”); William Baude & Stephen E. Sachs, The
Law of Interpretation, 130 Harv. L. Rev. 1079, 1082–83
(2017) (“Interpretation isn’t just a matter of language. . . .
Language will of course be an input to the process, but law
begins and ends the inquiry.”).
Often, legal meaning and ordinary public meaning
travel together because interpretation using ordinary public
meaning ensures that the people have received appropriate
notice of the government’s legitimate purpose. And notice is
necessary for posited law to serve one of its central purposes,
“coordinating society’s members toward the common good.”
Lee J. Strang, Originalism’s Promise: A Natural Law Account
of the American Constitution 268 (2019); see also Conor Casey
& Adrian Vermeule, Myths of Common Good
Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103, 122 (2022)
(posited law is “intrinsically reasoned and purposive, and

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To understand the present, we must start in the past. The
waiver of inadmissibility now in INA § 212(h) arose from § 5
of the Act of September 11, 1957, Pub. L. No. 85-316, 71 Stat.
639, 640. Section 5 allowed the Attorney General to grant
waivers only to “aliens applying or reapplying for a visa and
for admission to the United States.” 8 U.S.C. § 1182(b) (1958).
An amendment in 1990 added waiver authority for aliens
submitting applications for adjustment of status. Pub. L. No.
101-649, 104 Stat. 4978, 5076–77 (1990). Yet that extension
ordered to the common good”). So when this coordinating
purpose predominates, so too should the public meaning, even
if a law incorporates technical terms. That is because statutes
“are written to guide the actions of men. . . . If a statute is
written for ordinary folk, it would be arbitrary not to . . . read
[it] with the minds of ordinary men.” Felix Frankfurter, Some
Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527,
536 (1947). But “[i]f they are addressed to specialists, they
must be read by judges with the minds of specialists.” Id.; see
also Nix v. Hedden, 149 U.S. 304, 306–07 (1893) (interpreting
the words “fruit” and “vegetables” in the Tariff Act of 1883
according to the “ordinary meaning” “that they had in March,
1883,” rather than their botanical definitions, because there
was “no evidence that the words . . . acquired any special
meaning in trade or commerce”). Here, Congress used the
language of the specialist versed in the execution of the
immigration laws. Whatever the public might read into these
terms, it is only the legal meaning that explains Congress’s
directives in the INA and NACARA. That is the meaning we
follow. See Moskal v. United States, 498 U.S. 103, 121 (1990)
(Scalia, J., dissenting) (“[W]hen a statute employs a term with
a specialized legal meaning relevant to the matter at hand, that
meaning governs.”).

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of § 212(h) could not have included cancellation of removal
applicants because cancellation of removal did not yet exist.
Congress created that new type of relief, and a separate
application for it, by adding § 240A to the INA in 1996.
Compare Pub. L. No. 104-208, 110 Stat. 3009-594 (1996)
(creating INA § 240A, which only provides for cancellation of
removal) with INA § 245 (governing applications for
adjustment of status). But Congress did not extend § 212(h)’s
availability to applicants for that new form of relief. Given that
choice, § 212(h)’s phrase “adjustment of status” could not have
included “cancellation of removal” or the yet-nonexistent
concept of “adjustment of status and cancellation of removal.”5
By asking for a § 212(h) waiver to make him eligible
for cancellation of removal, then, Lopez seeks to use the waiver
for an unauthorized purpose, even though he also wants to use
it for adjustment of status—an authorized purpose. An
unauthorized use cannot be transmogrified by tacking on an
5 The possibility that cancellation of removal could also
result in adjustment of status first arose with NACARA’s
passage in 1997. NACARA “amended the language of sections
240A(b)(1) and (2) of the Act[, the INA’s general cancellation
of removal provisions,] by changing the phrase ‘may cancel
removal in the case of’ to ‘may cancel removal of, and adjust
to the status of an alien lawfully admitted for permanent
residence.’ Thus, the new language authorized the Attorney
General to cancel an alien’s removal and adjust his or her status
to that of a lawful permanent resident. Previously, the Attorney
General could technically only cancel an alien’s removal under
section 240A of the Act.” Matter of A- M-, 25 I. & N. Dec. 66,
73 (BIA 2009); NACARA § 204.

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authorized use.6 Barring amendment by NACARA, the waiver
of inadmissibility Congress authorized in INA § 212(h) may
not be granted to bring about cancellation of removal. And
NACARA contains no such amendment.
B. NACARA’s Enactment Did Not Expand INA
§ 212(h)
Because NACARA does not reference any waiver
provision, any effect it has on INA § 212(h) waivers must be
implied. NACARA’s text and structure reveal no implicit
expansion of INA § 212(h)’s phrase “adjustment of status.”
Instead, it created a new mechanism that offers two distinct
forms of relief, adjustment of status and cancellation of
removal. As the BIA recognized, “separate provisions of
NACARA specifically provide for adjustment of status and
cancellation of removal as two distinct forms of relief.” App.
6. NACARA’s provision for cancellation of removal
references the INA’s provision for regular cancellation of
removal, § 240A. NACARA § 203(b). Separately, NACARA
6 Lopez’s argument also creates redundancy. The INA’s
provision for ordinary cancellation of removal, § 240A,
includes a special waiver for aliens victimized by domestic
violence seeking cancellation and adjustment. 8 U.S.C.
§ 1229b(b)(5). Under Lopez’s reading, § 212(h)’s phrase
“adjustment of status” includes applications for cancellation of
removal that would also result in adjustment of status,
rendering the special waiver for battered applicants irrelevant.
Other things being equal, we should be “reluctant to adopt a
construction making another statutory provision superfluous.”
Hohn v. United States, 524 U.S. 236, 249 (1998); see also
Scalia & Garner, supra, at 174–79 (discussing the surplusage
canon).

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§ 202(a) provides for “adjustment of status” relief and
references the INA’s provision for adjustment of status, INA
§ 245. NACARA § 202(a). Both show that NACARA
preserves the INA’s distinction between “cancellation of
removal” and “adjustment of status” applications even while
allowing cancellation of removal applications to result in
adjustment of status. Far from impliedly amending INA
§ 212(h), Congress took care to leave it unaltered. As a result,
the INA does not provide Lopez a path to cancelling the
removal order against him.
III.
An application for cancellation of removal under
NACARA is not an application for adjustment of status under
§ 212(h) of the INA. So we will deny Lopez’s petition for
review.

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