Cheruku v. Attorney Gen. of the United States

• Citation: 662 F.3d 198
• Decision Date: 22 September 2011
• Docket Number: No. 10–1176.,10–1176.
• Parties: Shireesha Reddy CHERUKU 1, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

662 F.3d 198

Shireesha Reddy CHERUKU 1, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10–1176.

United States Court of Appeals, Third Circuit.

Argued May 24, 2011.Filed: Sept. 22, 2011.

Edward J. Cuccia, Esquire (Argued), Ferro & Cuccia, New York, NY, for Petitioner.

Patrick J. Glen, Esquire (Argued), Benjamin Zeitlin, Esquire, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for Respondent.

Before: McKEE, Chief Judge, SCIRICA and RENDELL, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Reddy Cheruku filed a petition for review of the BIA's decision affirming denial of her application to adjust her status to that of a lawful permanent resident under the Legal Immigration Family Equity Act, 8 U.S.C. § 1255(i), because she was found inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II). We will deny the petition for review.

I.

The facts are undisputed. Cheruku, a citizen of India, entered the United States in 1995 on a B–1 visa, which she subsequently overstayed. After her visa expired, she accrued more than one year of unlawful presence in the United States. In 1998, Cheruku and her employer filed an application for labor certification that was approved in March 1999. Her employer then filed a Petition for Alien Worker that was granted on November 29, 2000. On December 21, 2001, Cheruku applied to adjust her immigration status to that of a lawful permanent resident under the Legal Immigration Family Equity Act, 8 U.S.C. § 1255(i) (LIFE Act).

While her application for adjustment of status was pending, Cheruku applied for and was granted an advanced parole.² The advanced parole document issued to Cheruku warned that if she accrued more than 180 days of unlawful presence subsequent to April 1, 1997, and subsequent to applying for adjustment of status, and then departed the United States, she “may be found inadmissible under section 212(a)(9)(B)(i) [ 8 U.S.C. § 1182(a)(9)(B)(i) ] of the Act when [she] return[s] to the United States to resume the processing of [her] application.” Notwithstanding this warning, Cheruku traveled outside the United States and used the advanced parole to be permitted to reenter the United States upon her return on November 28, 2002.

On April 28, 2004, Cheruku's application for adjustment of status under the LIFE Act was denied because her travel outside of the country rendered her inadmissible for a period of ten years under 8 U.S.C. § 1182(a)(9)(B)(i)(II), commonly referred to as the ten-year bar. She filed a petition to reopen, which was denied on August 5, 2004. On August 31, 2004, Cheruku was served with a Notice to Appear charging her with being removable under the ten-year bar, 8 U.S.C. 1182(a)(9)(B)(i)(II), because she had accrued more than one year of unlawful presence in the United States, departed the United States, and subsequently sought admission within ten years of her departure.³

In removal proceedings, Cheruku renewed her application for adjustment of status. The Immigration Judge initially held he lacked jurisdiction over the adjustment application because Cheruku was an arriving alien. In response, Cheruku appealed to the BIA. The BIA remanded proceedings to the IJ in light of intervening case law that permits immigration judges to adjudicate certain adjustment applications. The IJ denied Cheruku's application on February 27, 2008, and granted her request for voluntary departure. Cheruku timely appealed to the BIA.

Before the BIA, Cheruku made several arguments: first, that the LIFE Act waived the statutory bar to admissibility; second, that the circumstances of her departure and return were factually distinguishable from those at issue in prior BIA precedents; third, that the Department of Homeland Security (DHS) should be equitably estopped from finding her inadmissible, or in the alternative, that she should be afforded retroactive, nunc pro tunc, equitable relief; and finally, that the grant of an advanced parole should require DHS to disregard her departure.

The BIA denied Cheruku's appeal on December 18, 2009. In its decision, the BIA relied on its opinion In re Lemus–Losa, 24 I. & N. Dec. 373, 379–80 (BIA 2007), in which it held aliens inadmissible under § 1182(a)(9)(B)(i)(II) are ineligible for adjustment of status under the LIFE Act. The BIA noted the United States Court of Appeals for the Seventh Circuit had called Lemus–Losa into question, see Lemus–Losa v. Holder, 576 F.3d 752 (7th Cir.2009), but reiterated its understanding of the statutes as set forth in Lemus–Losa, 24 I. & N. Dec. 373. In addition, the BIA emphasized the advanced parole document issued to Cheruku explicitly warned that if she were to leave the United States, she could be found inadmissible upon her return. The BIA accordingly rejected Cheruku's equitable estoppel argument, finding no misconduct on the part of DHS. The BIA also rejected Cheruku's request for retroactive relief stating it was precluded by statute from creating a retroactive waiver of inadmissibility, and it rejected her argument that the advanced parole document should render her departure a nullity. Consequently, the BIA affirmed the Immigration Judge's conclusion that Cheruku was ineligible for adjustment of status, and granted her request for voluntary departure.

Cheruku timely petitioned for review of the BIA's decision and renews her arguments on appeal.

II.

The BIA had appellate jurisdiction over Cheruku's removal proceeding under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction to review final orders of removal under the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a).

Because the BIA issued a fully reasoned opinion, we review the BIA's opinion as the final agency decision. Espinosa–Cortez v. Att'y Gen., 607 F.3d 101, 106 (3d Cir.2010). We review questions of law, such as the BIA's interpretation of immigration statutes, de novo, “including both pure questions of law and applications of law to undisputed facts,” Rranci v. Att'y Gen., 540 F.3d 165, 171 (3d Cir.2008), “subject to the principles of deference articulated in Chevron v. [ NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694] (1984),” Kaplun v. Att'y Gen., 602 F.3d 260, 265 (3d Cir.2010).

“The BIA's construction of the statute is entitled to deference and must be accepted by the Court if it is based upon a permissible construction of the statute.” Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir.2006) (citing Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778). Such deference is “especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.” INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (internal quotation omitted).

We conduct a two-part inquiry, first asking “whether ‘the statute is silent or ambiguous with respect to the specific issue’ before [us].” Id., at 424, 119 S.Ct. 1439 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). If the statute's language is clear and unambiguous, we uphold the plain meaning of the statute. See INS v. Cardoza–Fonseca, 480 U.S. 421, 432–33 & n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). But if the statute is silent or ambiguous, “ ‘the question for the court [is] whether the agency's answer is based on a permissible construction of the statute.’ ” Aguirre–Aguirre, 526 U.S. at 424, 119 S.Ct. 1439 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). When the ambiguity is implicit, “if the [BIA's] construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation.” Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

III.

A.

On appeal, Cheruku challenges the BIA's determination that her inadmissibility under 8 U.S.C. § 1182(a)(9)(B)(i)(II) precludes her adjustment of status under the LIFE Act, 8 U.S.C. § 1255(i). In support, she contends the LIFE Act waives the statutory ten-year bar to admissibility. Conversely, the Government contends the conflict between the provisions of the LIFE Act and certain grounds for inadmissibility introduces ambiguity into the statutory scheme and, consequently, that we owe deference to the BIA's reasonable statutory interpretation.

1.

Our first task is to determine whether the statutory scheme is ambiguous. Aguirre–Aguirre, 526 U.S. at 424, 119 S.Ct. 1439. In 1994, Congress amended the INA by adding a new section—245(i), codified as 8 U.S.C. § 1255(i)—otherwise known as the LIFE Act. In re Briones, 24 I. & N. Dec. 355, 358–61 (BIA 2007). The LIFE Act was enacted to permit certain aliens unlawfully present in the United States to apply to adjust their statuses to that of lawful permanent residents without having to undergo consular inspection and admission abroad.⁴ See Briones, 24 I. & N. Dec. at 359–61. On its face, § 1255(i)(2)(A) of the LIFE Act requires an alien to be “admissible” to the United States in order to qualify for adjustment.

In 1997, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104–208 § 301, 110 Stat. 3009–546, 3009–577–78 (1997), which, among other things, added several statutory provisions to the INA rendering certain groups of aliens inadmissible. See Briones, 24 I. & N. Dec. at 358. Section 1182(a)(6)(A)(i) of the INA, added by IIRIRA, generally renders inadmissible those who are “present in the United States without being admitted or paroled, or who arrive[ ] in the United States at any time or place other than as designated by the Attorney General.” Congress also added other, more specific, bars to admissibility when it enacted IIRIRA. The provisions of § 1182(a)(9)(C) render inadmissible aliens having certain prior immigration violations, and the...