Ramirez-Canales v. Mukasey, 05-4504.

• Decision Date: 27 February 2008
• Docket Number: No. 06-3990.,No. 05-4504.,05-4504.,06-3990.
• Citation: 517 F.3d 904
• Parties: Francisco RAMIREZ-CANALES (05-4504); Jose Luis Garcia Correa (06-3990), Petitioners, v. Michael MUKASEY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

517 F.3d 904

Francisco RAMIREZ-CANALES (05-4504); Jose Luis Garcia Correa (06-3990), Petitioners, v. Michael MUKASEY, Respondent.

No. 05-4504.

No. 06-3990.

United States Court of Appeals, Sixth Circuit.

Argued: October 23, 2007.

Decided and Filed: February 27, 2008.

ARGUED: Jennifer M. Rotman, Immigrant Law Group, Portland, Oregon, for Petitioners. Charles E. Canter, United States Department of Justice, Washington, DC, for Respondent. ON BRIEF: Jennifer M. Rotman, Jessica M. Boell, Stephen W. Manning, Immigrant Law Group, Portland, Oregon, Ronald Kaplovitz, Kaplovitz & Associates, Sylvan Lake, Michigan, Mayra Fe Lorenzana-Miles, Brian J. Miles, D'Luge, Miles, Miles & Cameron, Mount Clemens, Michigan, for Petitioners. Charles E. Canter, Jeffrey J. Bernstein, Michelle Gorden Latour, United States Department of Justice, Washington, DC, for Respondent.

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Francisco Ramirez-Canales and Jose Luis Garcia Correa both appeal the decision by the Board of Immigration Appeals to reject their application for adjustment of status. Subsequent to oral argument before this panel, the Board of Immigration Appeals issued a precedential interpretation of the statutes in question. We now defer to this interpretation and AFFIRM the Board's decision denying the petitioners adjustment of status. However, we REMAND the case of Ramirez-Canales for consideration of equitable relief nunc pro tunc.

I

Francisco Ramirez-Canales is a citizen of Mexico who came to the United States in 1996 and married an American citizen in 1998. They now have one son. In 2000, his wife filed a Petition for Alien Relative I-130 to obtain a visa for her husband. Before the petition was granted, he was ordered to depart the country or face deportation. The petition was subsequently granted on January 17, 2002. However, under the order of voluntary departure, Ramirez-Canales had to leave by January 23, 2002. As he was unable, during that six-day window, to have his case heard, he departed as ordered on January 23, but returned illegally a week later. After his return, the INS (now ICE) sent notice that he was in violation of 8 U.S.C. § 1182(a)(6) (entering without inspection), and (a)(9) (reentering alien who, prior to reentry, had been unlawfully present for an aggregate of greater than one year). At his hearing, Ramirez-Canales admitted to the charges, but asked for an adjustment of status under 8 U.S.C. § 1255(i), which allows some aliens illegally present to apply from within the United States to become legal, since he was the beneficiary of an approved visa petition. After receiving briefs, the immigration judge ruled against Ramirez-Canales, stating that he was inadmissible under § 1182(a)(9)(C)(i)(I), and therefore barred from adjusting his status under § 1255(i) since that section requires that an alien be admissible. Ramirez-Canales appealed to the Board of Immigration Appeals, which adopted the opinion of the immigration judge and affirmed.

Jose Garcia Correa was born in Mexico and unlawfully entered the United States in 1994. In 2000, Garcia Correa married Margaret Anne Garcia, a United States citizen. He returned to Mexico in January 2001 when his mother died, and subsequently re-entered the United States in February 2001. In March of 2001 the INS filed a Notice to Appear charging that Garcia Correa was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), "as an alien present in the United States without being admitted or paroled." On September 4, 2002, the petition for an Alien Relative visa I-130 was approved. At the removal hearing, Garcia Correa admitted the charge against him, but sought to adjust his status under § 1255(i). After a number of preliminary hearings, the immigration judge denied his motion, finding him inadmissible under § 1182(a)(9)(C)(i)(I), and therefore disqualified from § 1255(i).

II

This Court reviews questions of law concerning immigration proceedings de novo. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir.2001). We owe deference to an agency's reasonable interpretation of its empowering statutes when those are ambiguous. See Chevron, U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The Supreme Court has held that Chevron deference to the Board's interpretation of immigration statutes is appropriate. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

A. Adjustment of Status

The two statutes in this case serve conflicting goals. Section 1182(a) lists a number of bases that render an alien inadmissible to this country. Section 1255(i) allows aliens who entered without inspection but who have access to a visa (typically an immigrant spouse of a citizen) to legalize their status without leaving the country and incurring a long and needless separation from their family, as would otherwise be required.¹ Both Ramirez-Canales and Garcia Correa raise the same question: does § 1255(i), which allows adjustment of status, provide an exception to the grounds for inadmissibility listed in § 1182(a)? Section 1182(a), "Classes of aliens ineligible for visas or admission," states:

(a) Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(6) Illegal entrants and immigration violators

(A) Aliens present without admission or parole

(i) In general. An alien present in the United States without being admitted or paroled or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

(9) Aliens previously removed

(C) Aliens unlawfully present after previous immigration violations

(i) In general. Any alien who—

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(II) has been ordered removed under section 1225(b)(1) of this title, section 1229a of this title, or any other provision of law,

and who enters or attempts to reenter the United States without being admitted is inadmissible.

On its face, the statute renders both petitioners inadmissible: both have entered the United States without being admitted, in violation of (a)(6), and both have reentered after remaining unlawfully present in the United States for more than one year, in violation of (a)(9)(C)(i).

Both have also applied for adjustment of status under 8 U.S.C. § 1255, which states:

(i) Adjustment of status of certain aliens physically present in the United States

(1) ... an alien physically present in the United States—

(A) who—

(i) entered the United States without inspection; ...

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence ...

(2) Upon receipt of such an application ... the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if—

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is filed.

Because § 1255(i)(2)(A) requires that an alien be admissible, it would appear that petitioners are disqualified as a result of their § 1182(a)(6) and (a)(9) violations. Petitioners urge, and we agree, that such a reading is inconsistent with the overall statutory scheme. By its express language, § 1255(i)(1)(A)(i) applies to aliens who "entered the United States without inspection." If all aliens unlawfully present are inadmissible as a result of § 1182(a), and admissibility is a condition for § 1255(i)(2)(A) relief, then no one would ever be eligible under § 1255(i)(2)(A).²

Since in resolving this conflict the terms of these statutes are amenable to multiple interpretations, we turn to the agency's own interpretation of its empowering statutes. "The BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication." Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (internal quotations and citations omitted). In a recent opinion, the Board of Immigration Appeals has directly addressed the relationship between § 1182(a) § and 1255(i). See In re Alonzo Briones, 24 I & N Dec. 355 (BIA 2007). As a precedential opinion,³ Briones is the type of case-by-case adjudication giving meaning to ambiguous statutes to which we owe deference. See United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). We therefore review the Board's interpretation for reasonableness. See Chevron, 467 U.S. at 845, 104 S.Ct. 2778.

The Board took up the issue of "whether adjustment of status under section [1255(i)] of the Act is available to an alien who is inadmissible to the United States under section [1182(a)(9)(C)(i)(I)] of the Act." Briones, 24 I & N Dec. at 357. After recognizing the conflict in the statutory language described above, the Board acknowledged that § 1255(i) must provide an exception to § 1182(a)(6), but only because § 1255(i) would otherwise be rendered superfluous:

In our view, section [1255(i)] adjustment remains available to aliens inadmissible under section [1182(a)(6)(A)(i)] only because a contrary interpretation would render the language of section [1255(i)] so internally contradictory as to effectively vitiate the statute, an absurd result that Congress is presumed not to have intended.

Id. at 365. The Board then distinguished § 1182(a)(6) from § 1182(a)(9)(C)(i)(I): though both penalize illegal presence, § 1 182(a)(9)(C)(i)(I) "applies only to that subset of such aliens who are recidivists, that is, those who have departed the United States after accruing an aggregate period of `unlawful presence' of more than 1 year and who...