In re Torres-Garcia
| Decision Date | 26 January 2006 |
| Docket Number | File A93 421 569.,Interim Decision No. 3524. |
| Parties | In Re Honorio TORRES-GARCIA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from an Immigration Judge's January 21, 2004, decision finding him inadmissible to the United States under section 212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2000), and pretermitting his application for adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000). The appeal will be dismissed.
The respondent is a 30-year-old native and citizen of Mexico who entered the United States without inspection in 1987. In 1997 he married a United States citizen, but in November 1998 he was removed from the United States to Mexico by the former Immigration and Naturalization Service ("INS," now the Department of Homeland Security ("DHS")), pursuant to an in absentia order of removal issued by an Immigration Judge.1
In December 1998, while in Mexico, the respondent filed an application with the DHS requesting permission to reapply for admission after removal. On a Form I-212 (Application for Permission to Reapply for Admission Into the United States After Deportation or Removal), which appears to have been completed by his wife, the respondent explained that he had United States citizen family members and that he wished to pursue a visa petition that would allow him to obtain lawful permanent resident status in the United States. In February 2000, while the respondent was still in Mexico, the DHS approved his request for permission to reapply for admission. Rather than seeking admission, however, the respondent reentered the United States without being admitted or paroled in May 2000.
In early 2001 the respondent's wife filed a visa petition on his behalf with the DHS. After this visa petition was approved in March 2002, the respondent filed an application for adjustment of status pursuant to section 245(i) of the Act, and he and his wife attended an adjustment of status interview with a DHS officer in March 2003. When the DHS officer conducting the interview discovered that the respondent had previously been removed and had reentered the United States without being admitted or paroled, he denied the respondent's application for adjustment of status, took the respondent into custody, and served him a copy of a Notice to Appear (Form I-862), which charged him with being removable as an alien present in the United States without having been admitted or paroled. See section 212(a)(6)(A)(i) of the Act. In May 2003 the Notice to Appear was filed in the Immigration Court in Dallas, Texas, initiating these removal proceedings.
During proceedings before the Immigration Judge, the respondent conceded that he was removable as charged and sought to renew his application for adjustment of status. The Immigration Judge pretermitted the application, however, concluding that the respondent was ineligible for adjustment of status because his unlawful reentry in May 2000 had rendered him inadmissible to the United States under section 212(a)(9)(C)(i)(II) of the Act. The Immigration Judge further concluded that the respondent was not eligible for any waiver of that ground of inadmissibility and that his prior request for permission to reapply for admission after removal, which had been approved by the DHS in February 2000, was also not effective to waive his inadmissibility. The respondent appealed the Immigration Judge's decision.
This appeal presents the question whether the respondent, who reentered the United States without admission after having previously been removed, is inadmissible under section 212(a)(9)(C)(i)(II) of the Act where, prior to reentering unlawfully, he had obtained the Attorney General's permission to reapply for admission after removal.
Among other things, this appeal requires us to explain the circumstances under which an alien may become inadmissible to the United States under section 212(a)(9)(C) of the Act.2 That section renders ineligible for admission to the United States, with certain exceptions, any alien who enters or attempts to enter the United States after specified previous immigration violations. Section 212(a)(9)(C) provides, in pertinent part, as follows:
and who enters or attempts to reenter the United States without being admitted is inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.
(Emphasis added.)
The respondent wants to adjust his status under section 245(i) of the Act from that of an alien present in the United States without having been admitted or paroled to that of an alien lawfully admitted for permanent residence. Section 245(i)(1) of the Act provides that "an alien physically present in the United States . . . who . . . entered the United States without inspection" and who is the beneficiary of an immigrant visa petition filed on or before April 30, 2001, may apply to the Attorney General for adjustment of status upon payment of $1,000.3 Upon receiving the alien's application and the required sum, the Attorney General is authorized to adjust the alien's status to that of a lawful permanent resident if, among other things, "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." Section 245(i)(2)(A) of the Act.
The approval notice issued by the DHS with respect to the respondent's visa petition reflects that the respondent's "priority date" was April 20, 2001, indicating that the visa petition was "filed" prior to the April 30, 2001, deadline set forth at section 245(i)(1)(B)(i) of the Act. See 8 C.F.R. § 1245.1(g)(2) (2005) ().
The Immigration Judge determined that the respondent was not "admissible to the United States for permanent residence," within the meaning of section 245(i)(2)(A) of the Act, because he had unlawfully reentered the United States after having previously been removed, an act that ostensibly rendered him inadmissible under section 212(a)(9)(C)(i)(II) as an alien who "has been ordered removed under . . . section 240 . . . and who enters . . . the United States without being admitted."
We emphasize at the outset that the respondent does not dispute on appeal that inadmissibility under section 212(a)(9)(C)(i)(II) would have the effect of making him ineligible for adjustment of status under section 245(i). See Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th Cir. 2005) (), cert. denied, 126 S.Ct. 733 (2005).4 Instead, he argues more narrowly that he is not, in fact, inadmissible under section 212(a)(9)(C)(i)(II) of the Act because, by the time of his unlawful reentry in May 2000, the DHS had already approved his earlier request for permission to reapply for admission after removal. In essence, he maintains that the DHS's approval of his request for permission to reapply for admission had the effect of insulating him against any allegation of inadmissibility that might subsequently arise in connection with his unlawful reentry. In support of this argument the respondent relies on the rationale of Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), motion to reconsider denied, 403 F.3d 1116 (9th Cir. 2005), in which the United States Court of Appeals for the Ninth Circuit held that an alien who was inadmissible under section 212(a)(9)(C)(i) of the Act could apply for adjustment of status under section 245(i) in conjunction with a request that the Attorney General retroactively consent to his reapplying for admission. For the following reasons, we reject the respondent's arguments.
The respondent was removed from the United States to Mexico in November 1998 pursuant to an in absentia order of removal issued by an Immigration Judge, and we have received no indication that the respondent has requested, much less secured, rescission of that order.5 In May 2000 the respondent reentered the United States without being admitted or paroled. Because the respondent reentered the United States without admission after having previously been removed, he...
To continue reading
Request your trial