Garfias–rodriguez v. Eric H. Holder Jr.

• Citation: 649 F.3d 942,11 Cal. Daily Op. Serv. 4285,2011 Daily Journal D.A.R. 5165
• Decision Date: 11 April 2011
• Docket Number: No. 09–72603.,09–72603.
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Francisco Javier GARFIAS–RODRIGUEZ, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.

649 F.3d 942

11 Cal. Daily Op. Serv. 4285

2011 Daily Journal D.A.R. 5165

Francisco Javier GARFIAS–RODRIGUEZ, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 09–72603.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 8, 2010.Filed April 11, 2011.

Soren M. Rottman, Esq., Northwest Immigrant Rights Project, Granger, WA, for the petitioner.Tony West, Blair T. O'Connor, and Luis E. Perez, Civil Division, Department of Justice, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–766–006.Before: RAYMOND C. FISHER and JAY S. BYBEE, Circuit Judges, and EDWARD F. SHEA, District Judge.^*

OPINION

BYBEE, Circuit Judge:

Petitioner–Appellant Francisco Garfias–Rodriguez (“Garfias”) appeals a final removal order issued by the Board of Immigration Appeals (“BIA”) that determined that he was ineligible for adjustment of status under 8 U.S.C. § 1255(i). He challenges the order on two grounds. First, he contends that our interpretation of 8 U.S.C. §§ 1182(a)(9)(C)(i)(I) and 1255(i) in Acosta v. Gonzales, 439 F.3d 550 (9th Cir.2006), takes precedence over the BIA's subsequent and contrary reading in Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007). Second, he argues that even if Briones is controlling, the BIA impermissibly applied it to him retroactively. Additionally, Garfias argues that the Attorney General exceeded his authority by promulgating 8 C.F.R. § 1240.26(i), which terminates a grant of voluntary departure upon the filing of a petition for review of a final removal order. We reject all three of Garfias's arguments and deny his petition for review.

I

Garfias is a native and citizen of Mexico. He unlawfully entered the United States in 1996 and departed the country, once in 1999 and once in 2001 (to visit his ailing mother and to attend her funeral, respectively), each time reentering without inspection. On April 5, 2002, Garfias married his current wife, Nancy, a United States citizen. He subsequently applied to adjust his status to that of a lawful permanent resident and paid an additional $1,000 fee with this application because he had entered without inspection. On March 24, 2004, the United States Immigration and Customs Enforcement (“ICE”) instituted removal proceedings against Garfias on the grounds that he entered the United States without inspection.

At a hearing before an Immigration Judge (“IJ”), ICE reiterated its allegations that Garfias departed the United States in 1999 and reentered in 2000 without being paroled or admitted. Garfias admitted these facts and conceded that he was removable, but argued that he could still adjust his status under 8 U.S.C. § 1255(i). He requested relief in the form of adjustment and, in the alternative, voluntary departure.

The IJ denied Garfias's application for status adjustment but granted him voluntary departure. The IJ held that Garfias was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) and was ineligible for any waiver of inadmissibility. Accordingly, he was ineligible for status adjustment under § 1255(i), which requires an applicant to be admissible to the United States.

Garfias appealed to the BIA. In a per curiam decision, the BIA sustained his appeal and remanded the case to the IJ for reconsideration in light of our previous decisions in Perez–Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004), and Acosta.

On remand, the IJ acknowledged Perez–Gonzalez and Acosta, but denied Garfias's application on other grounds. The judge denied the request for status adjustment but once again granted voluntary departure.

Garfias again appealed to the BIA. Instead of relying on the IJ's stated reasoning, however, the BIA cited its intervening opinion in Briones, in which it found that persons inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) could not seek adjustment of status under § 1255(i). It dismissed Garfias's appeal, granted him sixty days to voluntarily depart, ordered removal in the event that he failed to depart, and informed him that filing a petition for review would immediately terminate the grant of voluntary departure.

Garfias subsequently filed a petition for review with this court as well as a motion to stay his removal.

II

We must first determine whether aliens who are inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) may nonetheless apply for adjustment of status under 8 U.S.C. § 1255(i). Deferring to the BIA's decision in Briones, we hold that they may not.¹

The opening clause of § 1182(a) specifies that “ [e]xcept 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.” 8 U.S.C. § 1182(a) (emphasis added). This provision is a “savings clause” that authorizes “admission of otherwise inadmissible aliens where the statute so provides.” Renteria–Ledesma v. Holder, 615 F.3d 903, 906 (8th Cir.2010) (citing Mora v. Mukasey, 550 F.3d 231, 234 (2d Cir.2008)). Subsection 1182(a)(9)(C)(i)(I) provides that “[a]ny 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.” Section 1182(a)(9)(C)(ii) provides an exception for those aliens who are “seeking admission more than 10 years after the date of the alien's last departure from the United States if ... the Secretary of Homeland Security has consented to the alien's reapplying for admission.”

Section 1255(i) sets out the conditions under which an alien who is “physically present in the United States” and who “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.” 8 U.S.C. § 1255(i)(1)(A), (C). Section 1255(i)(2)(A) specifies that the Attorney General may adjust an alien's status if “the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.” 8 U.S.C. § 1255(i)(2)(A) (emphasis added).

Neither § 1182(a)(9)(C) nor § 1255(i) make reference to the other.

A

We first briefly summarize the relevant legal framework preceding this case. In Perez–Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004), we held, contrary to an INS guidance memorandum, that the inadmissibility provision of 8 U.S.C. § 1182(a)(9)(C)(i)(II) did not preclude status adjustment under 8 U.S.C. § 1255(i).² We observed, first, that the INS's interpretation of the two provisions was contained in the “informal format [ ]” of a guidance memorandum, and was therefore not entitled to “the rigorous deference owed formal agency interpretations under [ Chevron ].” Id. at 793. Applying this less deferential form of review, we found that it was “impossible to reconcile the interpretation of the statute in 8 C.F.R. § 212.2, which indicates that illegal reentrants can seek adjustment of status, with the interpretation in the agency's informal guidance memorandum, which states that they are categorically barred from receiving adjustment of status.” Id. at 793–94.³ Accordingly, we concluded that “[i]n the absence of a more complete agency elaboration of how its interpretation of [ § 1182(a)(9) ] can be reconciled with its own regulations, we must defer to the regulations rather than to the informal guidance memorandum.” Id. at 794. We held that aliens who are inadmissible under § 1182(a)(9)(C)(i)(II) could nonetheless seek adjustment of status. Id. at 795.

Next, in Acosta v. Gonzales, 439 F.3d 550, 556 (9th Cir.2006), we extended the reasoning of Perez–Gonzalez and held that aliens who were inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I)—the provision at issue in this case—remained eligible for adjustment under § 1255(i). We emphasized that “ Perez–Gonzalez appears to control the issue ... before us” and that “any attempt to distinguish the present case from Perez–Gonzalez based on the different grounds of inadmissibility involved would be unpersuasive.” Id. at 554.

The BIA subsequently issued two opinions that are relevant to this case. In Matter of Torres–Garcia, 23 I. & N. Dec. 866 (BIA 2006), the BIA accepted our invitation to provide “a more complete agency elaboration of how its interpretation of [§ 1182(a)(9) ] can be reconciled with its own regulations.” Perez–Gonzalez, 379 F.3d at 794. The BIA concluded that “the Ninth Circuit's analysis regarding the availability of a retroactive waiver of the ground of inadmissibility set forth at [§ 1182(a)(9)(C)(i) ] contradicts the language and purpose of the Act and appears to have proceeded from an understandable, but ultimately incorrect, assumption regarding the applicability of 8 C.F.R. § 212.2.” Torres–Garcia, 23 I. & N. Dec. at 873. The BIA noted that 8 C.F.R. § 212.2—the regulation that we had held was in conflict with the agency guidance memoranda—“was not promulgated to implement ... section [1182(a)(9) ],” but “implement[ed] statutory provisions that were repealed by the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (‘IIRIRA’) ].” Id. at 874, 875. It further noted that our decision in Perez–Gonzalez effectively allowed § 1255(i) to function as means to “circumvent the statutory 10–year limitation on [§ 1182(a)(9)(C)(ii) ] waivers” by allowing aliens to “simply reenter [ ] unlawfully before requesting the waiver.” Id. at 876.

In Matter of Briones, 24 I. & N. Dec. 355, 370 (BIA 2007), the BIA revisited the question we answered in Acosta and again rejected our reasoning. It explained that § 1182(a)(9)(C)(i)(I) applies to “ 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 thereafter entered or attempted to reenter the United States unlawfully.” Id. at 365–66. The Board observed that § 1182(a)(9)(C)(i)(I) could...