Morales-Izquierdo v. Department of Homeland Sec.

• Citation: 600 F.3d 1076
• Decision Date: 02 April 2010
• Docket Number: No. 08-35965.,08-35965.
• Parties: Raul MORALES-IZQUIERDO, Petitioner-Appellant, v. DEPARTMENT OF HOMELAND SECURITY; William Johnston, District Director; Eric H. Holder Jr., Attorney General, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

600 F.3d 1076

Raul MORALES-IZQUIERDO, Petitioner-Appellant, v. DEPARTMENT OF HOMELAND SECURITY; William Johnston, District Director; Eric H. Holder Jr., Attorney General, Respondents-Appellees.

No. 08-35965.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2009.

Filed April 2, 2010.

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Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for the petitioner-appellant.

Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., for the respondents-appellees.

Before: ROBERT R. BEEZER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

GOULD, Circuit Judge:

Petitioner-Appellant Raul Morales ("Morales") filed an application to adjust his immigration status to that of a lawful permanent resident. His application was denied because his prior removal from the United States made him "inadmissible." Morales filed a petition for a writ of habeas corpus challenging the rejection by an Immigration and Naturalization Service ("INS") official of his adjustment-of-status application, denial of which by the district court prompted this appeal.

Morales contends that under our circuit's interpretation of the relevant statute at the time Morales filed his application, he was eligible for a discretionary waiver of inadmissibility. See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004). However, we have subsequently overruled that waiver precedent because of an intervening decision by the Board of Immigration Appeals ("BIA"). See Gonzales v. Dep't of Homeland Sec., 508 F.3d 1227 (9th Cir.2007). Such deference is required by the Supreme Court's decision in National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). Moreover, after Morales filed his habeas corpus petition, the jurisdiction of federal district courts to hear habeas corpus challenges to administrative decisions relating to removal orders was curtailed by section 106(a) of the REAL ID Act. See 8 U.S.C. § 1252(a)(5). We consider whether Morales can challenge the denial of his adjustment-of-status application in a habeas corpus proceeding after enactment of the REAL ID Act, and whether our decision in Gonzales, overruling our prior interpretation of a statute as required by Brand X, makes Morales ineligible for waiver of inadmissibility.

I

Raul Morales, a Mexican citizen, entered the United States without inspection in March 1990. Morales was later arrested by the INS¹ and placed in removal proceedings.² He did not attend his removal hearing and was ordered removed in absentia on September 14, 1994. Morales was removed to Mexico in January of 1998.

Morales reentered the United States without inspection on January 8, 2001. At some time between his 1998 removal and his 2001 reentry, Morales married a United States citizen. Two months after his illegal reentry into the United States, Morales and his U.S.-citizen wife appeared at an INS office in Spokane, Washington, seeking to adjust Morales's immigration status to that of a lawful permanent resident ("LPR").

Under section 245(i) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1255(i), an alien who enters the United States without inspection, under limited circumstances, can seek to adjust his or her immigration status to that of an LPR by filing an Application for Adjustment of Status ("Form I-485"). See Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir.1997). To do so, the alien must be "admissible" into the United States. 8 U.S.C. § 1255(i)(2)(A). Morales is not admissible because he unlawfully reentered the United States after having been previously removed. See 8 U.S.C. § 1182(a)(9)(C)(i)(II). Under current law, Morales will remain permanently inadmissible unless, while residing outside the United States, Morales applies for and receives advance permission from the Secretary of Homeland Security ("Secretary") to reapply for admission. But Morales is not eligible for such advance permission until ten years have elapsed since his last departure from the United States. See Id. § 1182(a)(9)(C)(ii). This is commonly known as the "ten-year bar" to readmission.

When Morales's application for adjustment of status was pending, however, Morales may have been eligible for a discretionary waiver of inadmissibility, called a "Form I-212" waiver. See 8 C.F.R. § 212.2(e). In Perez-Gonzalez, we held that a Form I-212 waiver—if granted in conjunction with an alien's Form I-485 application for adjustment of status—could waive the ten-year bar to readmission and cure a previously removed alien's inadmissability. 379 F.3d at 795-96. But Morales did not file a Form I-212 waiver application at the time he filed his application for adjustment of status in 2001.³

On January 15, 2003, Morales appeared at the INS office in Spokane to check on his adjustment-of-status application and was taken into custody. The INS then denied Morales's application for adjustment of status and issued a Notice of Intent/Decision to Reinstate Prior Order ("Reinstatement Order") under 8 U.S.C. § 1231(a)(5) on the basis of Morales's 1998 removal. The reinstatement of a prior removal order bars an alien from applying for "any relief" from removal for which he or she might previously have been eligible. See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Once Morales's 1998 removal order was reinstated, he was no longer eligible for "relief" in the form of adjustment of status—even if he could obtain a Form I-212 waiver. See Padilla v. Ashcroft, 334 F.3d 921, 925-26 (9th Cir.2003).

Morales filed two petitions seeking review of these INS actions. The first, a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, was filed on January 17, 2003, in the United States District Court for the Western District of Washington, challenging, among other things, the denial of Morales's application for adjustment of status. Morales-Izquierdo v. INS, No. 2:03-cv-89. The second, a petition for review of the Reinstatement Order, was filed directly in this court on February 13, 2003. Morales-Izquierdo v. Gonzales, No. 03-70674. The district court ordered the habeas corpus proceedings held in abeyance pending the outcome of the petition for review before this court.⁴

In November 2004, a three-judge panel of our court granted Morales's petition for review of the Reinstatement Order. Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir.2004). A majority of nonrecused active judges subsequently voted to rehear the case en banc. Morales-Izquierdo v. Gonzales, 423 F.3d 1118 (9th Cir.2005).

While en banc proceedings were pending, the REAL ID Act, Pub.L. No. 109-13, Div. B., 119 Stat. 231 (May 11, 2005), went into effect. The REAL ID Act eliminated district court habeas corpus jurisdiction over orders of removal, vesting jurisdiction exclusively in the courts of appeals. Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006). In December 2005, DHS moved the district court to transfer the claims raised in Morales's habeas proceedings to our court pursuant to the REAL ID Act. See Pub L. No. 109-13, § 106(c), 119 Stat. 311 (2005) (codified as a note following 8 U.S.C. § 1252). The district court denied that motion and DHS's motion for reconsideration, concluding that it retained habeas corpus jurisdiction for claims not directly challenging orders of removal. DHS then petitioned our court for a writ of mandamus on the same grounds. The en banc panel denied DHS's mandamus petition without reaching its merits, concluding that it did not meet the "extraordinarily high standard for obtaining a writ of mandamus." United States v. U.S.D.C. W.D. Wash., 220 Fed.Appx. 582 (9th Cir. 2007). On the same day, the en banc panel issued an opinion rejecting Morales's Reinstatement Order challenge. Morales-Izquierdo v. Gonzales, 477 F.3d 691 (9th Cir.2007) (en banc), amended by 486 F.3d 484 (9th Cir.2007) hereinafter Morales-Izquierdo I.

Morales and DHS filed cross-motions for summary judgment before the district court on September 28, 2007. In his motion for summary judgment, Morales argued that the INS should have given him the opportunity to apply for a Form I-212 waiver before the denial of his adjustment-of-status application and the reinstatement of his 1998 removal order, and that, accordingly, Morales should be treated as having timely filed a Form I-212. The district court granted summary judgment for DHS, concluding that the INS had no duty to inform Morales of the availability of a Form I-212 waiver, and that, in any event, the reinstatement of Morales's 1998 removal order barred him from seeking to adjust his status.

While the district court was considering these motions, the law of our circuit relating to Form I-212 waivers changed. In Gonzales v. DHS, we overruled our prior precedent and held that a Form I-212 waiver could not be used to waive the statutory ten-year bar to readmission for previously removed aliens. 508 F.3d at 1242. We did so in deference to an intervening BIA decision interpreting ambiguous provisions of the INA, In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), as we were required to do by the Supreme Court's decision in Brand X. See Gonzales, 508 F.3d at 1235-42.

Morales timely appealed the district court's denial of his habeas corpus petition, and we have jurisdiction pursuant to 28 U.S.C. § 1291. On appeal, Morales argues that after the passage of the REAL ID Act, district courts retain habeas corpus jurisdiction to entertain challenges to the denial of applications for adjustment of status. On the merits, Morales argues that he was eligible for a Form I-212 waiver of inadmissibility at the time the INS denied his adjustment-of-status application and issued the Reinstatement Order, and that the INS violated its own regulations, due process, and our precedents by denying Morales's adjustment-of-status application without first giving him the opportunity to apply for a Form I-212...