In re Lemus-Losa
| Decision Date | 29 November 2007 |
| Docket Number | File A98 724 586.,Interim Decision No. 3591. |
| Citation | 24 I&N Dec. 373 |
| Parties | In re Miguel LEMUS-Losa, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated December 16, 2005, an Immigration Judge denied the respondent's application for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), based on his finding that the respondent is inadmissible under section 212(a)(9)(B)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000). The respondent has appealed from that decision and from the Immigration Judge's January 23, 2006, order denying reconsideration. The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be dismissed.
The relevant facts are not in dispute. The respondent, a native and citizen of Mexico, entered the United States without inspection in 1998 or 1999 and resided here continuously for approximately 2 years. He returned to Mexico in 2001 and remained there until 2003. The respondent reentered the United States, again without inspection, in 2003 and has remained here in unlawful status since that time.
On March 14, 2005, the DHS placed the respondent in removal proceedings, charging him with removability under section 212(a)(6)(A)(i) of the Act for being present without having been admitted or paroled, based on his unlawful entry into the United States in 2003. On March 30, 1992, the respondent's father, a lawful permanent resident of the United States, filed a Petition for Alien Relative (Form I-130) on the respondent's behalf, seeking to classify him as a family-sponsored immigrant in the second-preference category as the unmarried son of a lawful permanent resident. See section 203(a)(2) of the Act, 8 U.S.C. § 1153(a)(2) (1988). The visa petition was approved, and the respondent was given a March 30, 1992, priority date. On September 29, 2005, the respondent filed an Application to Register Permanent Residence or Adjust Status (Form I-485) with the Immigration Court pursuant to section 245(i) of the Act on the basis of his approved visa petition.
At a hearing on October 19, 2005, the Immigration Judge granted the respondent a 2-month continuance until December 16, 2005, to enable him to obtain a current visa priority date. However, the Immigration Judge also expressed his concern that the respondent was ineligible for adjustment of status because of his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act for seeking admission to the United States within 10 years of a departure from the country following a period of unlawful presence of more than 1 year. The Immigration Judge indicated that the respondent's inadmissibility would be addressed at the subsequent hearing and invited the respondent to seek a waiver pursuant to section 212(a)(9)(B)(v) of the Act based on any extreme hardship that his father would face upon his removal.
At the December 16, 2005, hearing, the respondent requested another continuance because the visa numbers in his preference category had never become current and, in fact, had retrogressed. The respondent offered no evidence to support a section 212(a)(9)(B)(v) waiver. The Immigration Judge denied a second continuance, concluding that even if the respondent was the beneficiary of an immediately available immigrant visa, he was otherwise ineligible to adjust his status under section 245(i) because of his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act. The Immigration Judge concluded that the specific language of that section rendered the respondent inadmissible, and he explicitly rejected the respondent's contention that based on the title language of section 212(a)(9), section 212(a)(9)(B)(i)(II) only applies to individuals who have previously been removed. The Immigration Judge granted the respondent voluntary departure with an alternate order of removal to Mexico.
The respondent moved for reconsideration and also timely appealed the Immigration Judge's December 16, 2005, decision. On January 23, 2006, the Immigration Judge denied reconsideration. At our request, the parties filed supplemental briefs and appeared for oral argument. We have also considered the amicus curiae brief submitted on behalf of the respondent.
The principal issue on appeal is whether an alien who is inadmissible to the United States under section 212(a)(9)(B)(i)(II) of the Act may obtain adjustment of status under section 245(i) of the Act.
As a threshold matter, we agree with the Immigration Judge that the respondent is inadmissible under section 212(a)(9)(B)(i)(II) of the Act. That section of the statute provides, in pertinent part, as follows:
§ 1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
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:
. . . .
(9) Aliens previously removed
. . . .
(B) Aliens unlawfully present
(i) In general
Any alien (other than an alien lawfully admitted for permanent residence) who—
(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 1254a(e) of this title)2 prior to the commencement of proceedings under section 1225(b)(1) of this title or section 1229a of this title, and again seeks admission within 3 years of the date of such alien's departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.
The respondent is inadmissible under section 212(a)(9)(B)(i)(II) of the Act because he was unlawfully present in the United States for 2 years, voluntarily returned to Mexico in 2001, and then reentered the United States without inspection in 2003 before seeking adjustment of status in 2005. See generally Matter of Rodarte, 23 I&N Dec. 905, 908-10 (BIA 2006) (). We reject the respondent's contention that the bar to admissibility in section 212(a)(9)(B)(i)(II) does not apply to him because the title of section 212(a)(9) refers to "Aliens previously removed." In that regard, it is well settled that the heading of a section cannot limit the plain meaning of the text, and it is of use only when it sheds light on some ambiguous word or phrase. See, e.g., Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947). While some of the provisions of section 212(a)(9) do explicitly refer to previously removed aliens, see, e.g., sections 212(a)(9)(A)(i), (ii)(I), and (C)(i)(II) of the Act, the plain language of section 212(a)(9)(B)(i)(II) also renders inadmissible an alien who has at least 1 year of unlawful presence and "who again seeks admission within 10 years of the date of [his] departure or removal from the United States."3 Section 212(a)(9)(B)(i)(II) of the Act (emphasis added); see also section 212(a)(9)(C)(i) of the Act (providing that any alien who has been unlawfully present for an aggregate period of more than 1 year, or who has been ordered removed, and then enters or attempts to reenter the country without being admitted is inadmissible).
We reject the respondent's argument that the term "departure" in this context necessarily means a "voluntary departure" in lieu of removal. Instead, we construe the plain language of section 212(a)(9)(B)(i)(II) of the Act to encompass any "departure" from the United States, regardless of whether it is a voluntary departure in lieu of removal or under threat of removal, or it is a departure that is made wholly outside the context of a removal proceeding. We find no indication that Congress intended to limit the plain and ordinary meaning of the term "departure" in section 212(a)(9)(B)(i)(II) in the manner the respondent contends. Rather, the use of the term "departure" in that section appears to be designed as a shorthand means of incorporating both types of departure (i.e., voluntary departure and all other departures) that are set forth immediately above in section 212(a)(9)(B)(i)(I). Congress's use of the term "departed" in another part of section 212(a)(9) likewise supports a broad interpretation of the term "departure" in this context. Section 212(a)(9)(A)(i)(II) of the Act (rendering inadmissible aliens who departed the United States while an order...
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