Gonzalez-balderas v. Holder

• Decision Date: 05 March 2010
• Docket Number: No. 09-1890.,09-1890.
• Citation: 597 F.3d 869
• Parties: Maria E. GONZALEZ-BALDERAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

597 F.3d 869

Maria E. GONZALEZ-BALDERAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-1890.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 10, 2010.

Decided March 5, 2010.

Rekha Sharma-Crawford (submitted) Overland Park, KS, for Petitioner.

R. Alexander Goring (submitted), Department of Justice, Civil Division, Immi-

gration Litigation, Department of Justice Washington, DC, for Respondent.

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The petitioner, a Mexican citizen, entered the United States illegally by the use of someone else's documentation and was promptly removed. 8 U.S.C § 1225(b)(£)(A)(i). Her removal made her ineligible to seek readmission to the United States for five years unless she obtained permission to reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii). Rather than either wait or ask for permission to reapply, she snuck back into the United States a month later. This meant that she was forbidden to reapply for permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii). Still, here she was, undetected, and the following year her husband, a lawful permanent resident of the United States (since then he has become a citizen), whom she had married shortly after her second illegal entry, filed a visa petition on her behalf. The petition was granted, and later she filed an application to adjust her status, on the basis of her husband's status, to that of a lawful permanent resident. § 1255(i)(l).

Upon discovering that she had reentered the country illegally after being removed the Department of Homeland Security though it could have removed her summarily, § 1231(a)(5), instead merely denied her application for adjustment of status and scheduled a new removal hearing. At that hearing she asked the immigration judge to permit her to reapply for admission retroactive to the date of her reentry. Her authority was 8 C.F.R. § 212.2(i)(2), which states that an adjustment of status can be ordered retroactively. Were that provision applicable to hernotwithstanding the statute, she could apply for adjustment of status without waiting ten years from her second removal. But the immigration judge, seconded by the Board of Immigration Appeals, ruled on the authority of In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), that an application for retroactive relief (which the Board calls "nunc pro tunc"—"now for then"—relief, a term that properly refers, rather, to correcting a mistake, Central Laborers' Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir.1999); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)) cannot be granted when the effect would be to lift the ten-year bar.

Retroactive relief is a tool long employed by the immigration authorities, based on what they believe to be implied statutory authority to provide relief from the harsh provisions of the immigration laws in sympathetic cases. See, e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); Edwards v. INS, 393 F.3d 299, 30809 (2d Cir.2004). This case conceivably is one. The petitioner is 51 years old and has three children, one a U.S. citizen and the others lawful permanent residents, and apart from her illegal entries she has been law-abiding. But the Board ruled that the regulation cannot contravene the statute that bars a removed alien from reapplying for admission for ten years.

The statute is clear and the Board's ruling correct—and anyway the Board acted within its authority in interpreting its own regulation not to permit the statute to be circumvented. The circuits in which the Board's ruling has been challenged have upheld it. Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir.2008); Gonzales v. DHS, 508 F.3d 1227, 1241^2 (9th Cir. 2007). We now join them, elevating dicta in Lemus-Losa v. Holder, 576 F.3d 752, 760 (7th Cir.2009), to a holding.

Another aspect of this case requires comment. Because the petitioner was barred from receiving a waiver of inadmissibility, she could not apply for an adjustment of status. 8 U.S.C. § 1255(i)(2)(A). But rather than say that, the immigration judge "pretermitted" the application. This word is used by the immigration court and the Board of Immigration Appeals whenever an alien is found ineligible to apply for some form of relief. E.g., Singh v Gonzales, 468 F.3d 135, 136 n. 1 (2d Cir. 2006); Afful v. Ashcroft, 380 F.3d 1, 6 (1st Cir.2004). The common dictionary meanings of "pretermit" are to leave undone, to neglect, to omit, to overlook intentionally, to let pass without mention or notice, to interrupt or terminate, to suspend indefinitely. Singh v. Gonzales, s...