Herrera-Castillo v. Holder

• Decision Date: 27 July 2009
• Docket Number: No. 08-9538.,08-9538.
• Citation: 573 F.3d 1004
• Parties: Miguel HERRERA-CASTILLO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Tenth Circuit

573 F.3d 1004

Miguel HERRERA-CASTILLO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.^*

No. 08-9538.

United States Court of Appeals, Tenth Circuit.

July 27, 2009.

Submitted on the briefs^**

John Elliott Reardon, Glenwood Springs, CO, for Petitioner.

Anh-Thu P. Mai-Windle, Senior Litigation Counsel, and Karen Y. Stewart, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Miguel Herrera-Castillo (Herrera) seeks review of a Board of Immigration Appeals decision finding him ineligible for adjustment of status. Exercising jurisdiction under 8 U.S.C. § 1252(a), we DENY the petition for review.

I. Background

Herrera is a native and citizen of Mexico who entered the United States without inspection in November 1999. In 2003, the Department of Homeland Security commenced removal proceedings against Herrera because his presence violated the Immigration and Nationality Act (INA).¹ Herrera, however, claimed eligibility for adjustment of status to that of lawful permanent resident under 8 U.S.C. § 1255(i) based on his April 2001 marriage to a United States citizen.²

In September 2006, an immigration judge found Herrera inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II)³ and ineligible for adjustment of status under § 1255(i). Nonetheless, the judge granted a waiver of inadmissibility under § 1182(a)(9)(B)(v) after concluding Herrera's removal would cause extreme hardship to his wife and child.⁴

The government appealed this decision to the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge's determination that Herrera's inadmissibility under § 1182(a)(9)(B)(i)(II) prevented his adjustment of status under § 1255(i) to that of lawful permanent resident. But the BIA reversed the immigration judge's determination that Herrera qualified for a § 1182(a)(9)(B)(v) inadmissibility waiver. Herrera then filed this petition for review.

II. Analysis

On appeal, Herrera argues the BIA: (1) erred in finding that inadmissibility under § 1182(a)(9)(B)(i)(II) barred his adjustment of status to that of lawful permanent resident under § 1255(i); (2) violated equal protection when it denied his adjustment of status petition; and (3) erred in reversing the immigration judge's § 1182(a)(9)(B)(v) extreme hardship waiver. We address each argument in turn.⁵

A. Adjustment of Status

Herrera's primary challenge is to the BIA's determination that, absent a waiver, his inadmissibility under 8 U.S.C. § 1182(a)(9)(B)(i)(II) prevents an adjustment of status under 8 U.S.C. § 1255(i). Because our jurisdiction extends to "constitutional claims or questions of law," § 1252(a)(2)(D), this argument is properly before the court.

Section 1182(a)(9)(B)(i)(II) states that an alien who "has been unlawfully present in the United States for one year or more ... is inadmissible," and may only apply for admission ten years after departure or removal. Section 1255(i), however, permits certain aliens who entered the United States illegally to adjust their status to that of lawful permanent residents.⁶ Herrera concedes his inadmissibility under § 1182(a)(9)(B)(i)(II), but argues he is nevertheless eligible for a § 1255(i) adjustment of status.

Although our circuit has not addressed the interplay of these specific statutes, the BIA has held that, absent a waiver, aliens inadmissible under § 1182(a)(9)(B)(i)(II) do not qualify for a § 1255(i) adjustment of status. See In re Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007). The government argues the BIA's construction of §§ 1255(i) and 1182(a)(9)(B)(i)(II) in Lemus-Losa is entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Herrera's appeal therefore fails. We agree.

We review BIA legal determinations de novo. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.2005). We defer, however, to BIA constructions of immigration statutes when those statutes are "silent or ambiguous" on the question at issue and the BIA's reading is neither "arbitrary, capricious, [n]or manifestly contrary to the statute." See Chevron, 467 U.S. at 844, 842-45, 104 S.Ct. 2778; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Upon review, we conclude §§ 1255(i) and 1182(a) are ambiguous and that the BIA's construction of them in Lemus-Losa was reasonable. We thus defer to Lemus-Losa's conclusion that inadmissibility under § 1182(a)(9)(B)(i)(II) prevents adjustment of status under § 1255(i).

1. Ambiguity

We need not wrestle much with whether §§ 1255(i) and 1182(a) are ambiguous for Chevron purposes. As explained below, applying the statutes' plain language would render § 1255(i) a nullity. See Mora v. Mukasey, 550 F.3d 231, 237-38 (2d Cir.2008). Unable to rely on the statutes' plain language, therefore, we cannot "ascertain[whether] Congress had an intention on the precise question at issue." See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (quoting Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778).

Paragraph (1) of § 1255(i) provides that an alien who "entered ... without inspection" may apply to adjust his immigration status to that of a lawful permanent resident. § 1255(i)(1). Paragraph (2), however, permits the Attorney General to "adjust the status of the alien to that of an alien lawfully admitted for permanent residence" only if, among other things, "the alien ... is admissible to the United States for permanent residence." § 1255(i)(2)(A) (emphasis added).

A problem immediately arises because § 1182(a) defines aliens who enter the United States without inspection as in admissible. See § 1182(a)(6)(A)(i) ("An alien present in the United States without being admitted ... is inadmissible.").⁷ Thus, although § 1255(i)(1) permits aliens who "entered ... without inspection" to apply for adjustment of status, § 1255(i)(2)(A)'s requirement that such aliens also be "admissible" means none of them will qualify absent a waiver. See Mora, 550 F.3d at 235; Ramirez-Canales v. Mukasey, 517 F.3d 904, 908 (6th Cir.2008). Put another way, a plain reading of the statutes would make entry without inspection "both a qualifying and a disqualifying condition for adjustment of status." In re Briones, 24 I. & N. Dec. 355, 362 (BIA 2007).⁸

Applying the plain language of the statutes in this situation risks rendering § 1255(i) a nullity. But this is unacceptable here, as nullifying § 1255(i) would "frustrate" Congress's intent rather than "give [it] practical effect." See United States v. Heckenliable, 446 F.3d 1048, 1051 (10th Cir.2006). Not wanting to read § 1255(i) as a nullity but unable to infer from the statutory language the way in which § 1255(i) implicitly waives unlawful presence as a ground for inadmissibility, we find the statute ambiguous. See Mora, 550 F.3d at 237-38; Mortera-Cruz v. Gonzales, 409 F.3d 246, 253 (5th Cir.2005) ("The precise reach of section 1255(i)[] is an implicit statutory ambiguity the executive branch is authorized to fill.").

2. BIA Reasonableness

To avoid rendering § 1255(i) a nullity, the BIA reads it as an implicit waiver of inadmissibility under § 1182(a), but only for those aliens who fall under paragraph (6)(A)(i) of the statute—i.e., § 1182(a)'s general inadmissibility provision. See § 1182(a)(6)(A)(i) (stating that "[a]n alien present in the United States without being admitted ... is inadmissible."); Briones, 24 I. & N. Dec. at 364-65; Lemus-Losa, 24 I. & N. Dec. at 378-79.

The authority to read the statute this way, according to the agency, comes from the "savings clause" at the very beginning of § 1182(a). This savings clause states that "[e]xcept as otherwise provided in this chapter, aliens who are inadmissible ... are ineligible ... to be admitted to the United States." § 1182(a) (emphasis added). In the BIA's view, § 1255(i)(1) falls within the scope of the savings clause and is thus an implicit waiver of the admissibility prerequisite. Briones, 24 I. & N. Dec. at 364-65; Mora, 550 F.3d at 234.

For the other more specific paragraphs in § 1182(a), including § 1182(a)(9)(B)(i)(II) applying to Herrera, § 1255(i) does not ordinarily permit adjustment of status. See Lemus-Losa, 24 I. & N. Dec. at 378-79.

The BIA explains this disparate treatment of the § 1182(a) provisions by noting that while § 1182(a)(6)(A)(i) applies generally to aliens who are present unlawfully, the other § 1182(a) provisions apply specifically to aliens present illegally who have also done something else—for example, they have repeatedly violated the immigration laws, § 1182(a)(9)(C), or (like Herrera) have accrued a certain period of unlawful presence, § 1182(a)(9)(B)(i)(II). See Briones, 24 I. & N. at 365; Lemus-Losa, 24 I. & N. at 379; Mora, 550 F.3d at 236.

Whether § 1255(i) should be read as (1) waiving inadmissibility only under the general § 1182(a)(6)(A)(i), or (2) waiving inadmissibility under the more specific § 1182(a)(9)(B)(i)(II) as well, cannot be inferred clearly from the text of the immigration laws alone. The question is whether the BIA's interpretation of § 1182(a) in Lemus-Losa is "arbitrary, capricious, or manifestly contrary to the statute." See Chevron, 467 U.S. at 844, 104 S.Ct. 2778.

In Lemus-Losa, the BIA gave three primary reasons to interpret § 1255(i) as allowing aliens covered by the general § 1182(a)(6)(A)(i) to apply for adjustment of status, but not aliens covered by the more specific § 1182(a)(9)(B)(i)(II).

First, the BIA noted the purpose of § 1182(a)(9)(B)(i)(II) was to "punish individuals who seek admission ... after having previously accrued a period of unlawful presence." Lemus-Losa, 24 I. & N. Dec. at 379 (emphasis in original). According to the BIA, this suggests Congress went out of its way to distinguish between...