Acosta v. Gonzales

Decision Date23 February 2006
Docket NumberNo. 04-72682.,04-72682.
Citation439 F.3d 550
PartiesBraulio Juan ACOSTA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Jennifer M. Rotman, Immigrant Law Group LLP, Portland, OR, argued the cause for the petitioner; Stephen W. Manning and Jessica M. Boell, Immigrant Law Group, Portland, OR, were on the briefs.

Barry Pettinato, United States Department of Justice, Washington, DC, argued the cause for the respondent; Peter D. Keisler, M. Jocelyn Lopez Wright, and Carol Federighi, United States Department of Justice, Washington, DC, were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether an inadmissible alien is eligible for penalty-fee adjustment of status based on marriage to a United States citizen or an extreme hardship waiver, or both.

I

Braulio Juan Acosta is a Mexican national who entered the United States without inspection in May 1993. Since his illegal entry into the country, he has returned to Mexico twice, in 1996 and 1999, both times reentering the United States without inspection.

Acosta married a United States citizen in April 2001 and applied for adjustment of status based on his marriage, filing the required paperwork and paying the $1,000 penalty fee. His application was denied because he had accrued more than one year of unlawful presence in the United States followed by an illegal reentry and was therefore permanently inadmissible.1 Immigration and Nationality Act ("INA") § 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I).

In late 2002, Acosta received a Notice to Appear from the Immigration and Naturalization Service ("INS"), explaining that he was subject to removal as an alien present in the United States without being admitted or paroled. At one of several hearings before the Immigration Judge ("IJ"), Acosta conceded removability but renewed his application for adjustment of status. The IJ denied the application in a May 2003 written decision based on the same inadmissibility rule. He granted Acosta voluntary departure with an alternate order of removal to Mexico.

Acosta appealed that decision to the Board of Immigration Appeals ("BIA") in June 2003, which affirmed the IJ's decision without opinion. Acosta timely filed this appeal, and we exercise jurisdiction under 8 U.S.C. § 1252(a).

II

Acosta presents two arguments on appeal. He first claims that his inadmissibility is not a bar to penalty-fee adjustment of status. Alternatively, he argues that he is eligible for § 1182(a)(9)(B)'s extreme hardship waiver. We address each of his arguments in turn.

A

Because the BIA affirmed the IJ without opinion, "we review the IJ's decision as the final agency action." Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). We review the IJ's determination of purely legal questions de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003).

In interpreting the INA, we follow the procedure prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Chowdhury v. INS, 249 F.3d 970, 972 (9th Cir. 2001). Under Chevron, we first apply normal principles of statutory construction, deferring to the agency if the statute is ambiguous or uncertain. 467 U.S. at 843, 104 S.Ct. 2778; Chowdhury, 249 F.3d at 972 (citing Chevron).2 We defer to agency regulations if they are based on a permissible construction of the statute. Akhtar v. Burzynski, 384 F.3d 1193, 1198 (9th Cir.2004). "Interpretations such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron—style deference." Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); Vigil v. Leavitt, 381 F.3d 826, 835 (9th Cir.2004) (quoting Christensen).

Under the INA, any alien "who has been unlawfully present in the United States for an aggregate period of more than 1 year ... and who enters or attempts to reenter the United States without being admitted is inadmissible." § 1182(a)(9)(C)(i)(I). Acosta concedes that he is inadmissible under this section; he accrued more than one year of unlawful presence in the United States and reentered the country without being admitted. Nevertheless, he claims eligibility for penalty-fee adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i).

Penalty-fee adjustment of status allows an alien who entered the United States without inspection to pay a fee of $1,000 and to apply for adjustment of status to that of lawful permanent resident. § 1255(i)(1). To be eligible, the alien must be the beneficiary of a petition under 8 U.S.C. § 1154 that was filed before April 30, 2001, and if such petition was filed after January 14, 1998, he must have been physically present in the country on December 21, 2000. § 1255(i)(1)(B)-(C). If an alien satisfies these criteria, the Attorney General may "adjust the status of the alien to that of an alien lawfully admitted for permanent residence if the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and an immigrant visa is immediately available to the alien at the time the application is filed." § 1255(i)(2).

The INA does not explicitly address the issue before us. The statutes involved do not clearly indicate whether the inadmissibility provision or the penalty-fee adjustment of status provision should take precedence in Acosta's situation. We have, however, previously considered a similar question in Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 791(9th Cir.2004).

2.

We held in Perez-Gonzalez that an inadmissible alien— one who had been removed and reentered the country3 —was nevertheless eligible for penalty-fee adjustment of status. Id. Acosta contends that we should follow that decision as controlling his case.4

There is some merit to Acosta's argument; in Perez-Gonzalez, the Government argued, as it does here, that an alien inadmissible under § 1182(a)(9)(C) is ineligible for penalty-fee adjustment of status.5 We rejected the Government's assertion that INS guidance memoranda controlled the issue. Id. at 791-93 & n. 8. In particular, a March 31, 1997, memorandum declared—with no supporting analysis—that aliens inadmissible under this section are ineligible for penalty-fee adjustment of status. Memorandum by Paul W. Virtue, Acting Executive Assoc. Comm'r (Mar. 31, 1997). This statement was repeated in a May 1997 memorandum, which promised "further guidance" on the issue "in the near future." Memorandum by Louis D. Crocetti, Jr., Assoc. Comm'r (May 1, 1997). Despite its promise, the agency never provided any further analysis to support its conclusion.

As we noted, guidance memoranda are not entitled to the same rigorous deference due agency regulations. Perez-Gonzalez, 379 F.3d at 793. In fact, "guidance memoranda are entitled to respect ... but only to the extent that those interpretations have the power to persuade." Id. (quoting Christensen, 529 U.S. at 587, 120 S.Ct. 1655). After considering the purposes of the statute and its implementing regulations, we found the guidance memoranda unpersuasive. Id.

Our reasoning in Perez-Gonzalez appears to control the issue now before us. We stated that "[t]he statutory terms of § 245(i) clearly extend adjustment of status to aliens living in this country without legal status." Id. This broad statement was based on a recognition that the statute's purpose is to allow relatives of permanent residents to avoid separation from their loved ones. Id. (citing Joint Memorandum, Statement of Senator Kennedy, 146 Cong. Rec. S11850-52 (daily ed. Dec. 15, 2000)). We held that "[n]othing in the statutory provisions regarding adjustment of status, nor in the discussion of its purposes, suggests that aliens who have been previously deported or removed are barred from this form of relief." Id. With respect to Acosta's case, there is also nothing to suggest that aliens who reenter the country after accruing more than one year of unlawful presence are ineligible for penalty-fee adjustment of status.

Although the Government argues otherwise, any attempt to distinguish the present case from Perez-Gonzalez based on the different grounds of inadmissibility involved would be unpersuasive. To do so, we would be forced to conclude, despite the lack of evidence, that Congress intended different treatment for two groups of aliens that it specifically grouped together—aliens who reentered the United States after being removed and those who reentered the country after accruing over a year of unlawful presence. Thus, although both of these classes are permanently inadmissible, we would be holding one group eligible for penalty-fee adjustment of status and one class ineligible. We cannot conclude that Congress intended this result, particularly when the statutes do not provide any support for the approach. We continue to believe that "the most natural reading of ... § 245(i) permits illegal aliens ... who can demonstrate the requisite family ties and pay the requisite fee, to apply for adjustment of status." Id. at 794.

As previously noted, we have already recognized penalty-fee adjustment of status is intended to prevent the needless separation of families. Id. at 793. As such, penalty-fee adjustment establishes "an ameliorative rule designed to forestall harsh results," and we must interpret and apply the rule in an ameliorative fashion. Akhtar, 384 F.3d at 1201. In the immigration context, and in Acosta's case, we must resolve doubts in favor of the alien. Id. This rule provides further support for Acosta's argument that his inadmissibility does not defeat his eligibility for penalty-fee adjustment of...

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