Mortera-Cruz v. Gonzales

• Citation: 409 F.3d 246
• Decision Date: 09 May 2005
• Docket Number: No. 04-60234.,04-60234.
• Parties: Jesus MORTERA-CRUZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

409 F.3d 246

Jesus MORTERA-CRUZ, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 04-60234.

United States Court of Appeals, Fifth Circuit.

May 9, 2005.

Lance Edward Curtright (argued), Joseph B. DeMott Law Firm, San Antonio, TX, for Petitioner.

Barry Joseph Pettinato (argued), U.S. Dept. of Justice, Dept. of Homeland Sec., David V. Bernal, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Alberto R. Gonzales, U.S Dept. of Justice, Washington, DC, Kenneth L Pasquarell, Acting Dist. Dir., U.S. INS, San Antonio, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, JONES and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Jesus Mortera-Cruz (Mortera) appeals the decision of the Board of Immigration Appeals (BIA) dismissing his petition for adjustment of status under 8 U.S.C. § 1255(i)(1)(A)(i) on the ground that he is inadmissible to the United States under 8 U.S.C. § 1182(a)(9)(C)(i)(I). We affirm.

Facts and Proceedings Below

Mortera is a native and citizen of Mexico. He entered the United States illegally for the first time in November of 1996. On March 28, 2001, he married Margarita Mortera, who was then a lawful permanent resident and has since become a naturalized citizen. Shortly after their marriage, Mrs. Mortera filed a petition with the Immigration and Naturalization Service (INS) for an immigrant visa for her husband. This petition was received by the INS on April 28, 2001.

At some undetermined point after November 1996, Mortera left the United States and illegally reentered on June 10, 2001. Nearly a year later, on April 16, 2002, Mortera was convicted, on his guilty plea, by the United States District Court for the Northern District of Texas, of violating 8 U.S.C. § 1325(a) by illegally entering the United States without inspection on June 10, 2001. On May 10, 2002, the Immigration and Customs Enforcement (ICE)¹ agency of the Department of Homeland Security (DHS) served Mortera with a Notice to Appear (NTA), alleging that he was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without having been admitted or paroled.²

In response to the NTA, Mortera appeared before an immigration judge (IJ) on September 25, 2002. Mortera maintained that the NTA was in error insofar as it alleged that he illegally entered the United States on June 10, 2001. Through counsel, he contended that his first and only illegal entry occurred in late 1996 and his plea to the contrary before the district court was inadvertent. With the consent of the DHS, the IJ amended the NTA by interlineation to reflect Mortera's representation that the operative date should be in 1996, not 2001. The IJ then found Mortera subject to removal in light of his admission that he had in fact entered illegally in 1996. Mortera then requested permission to adjust his status under 8 U.S.C. § 1255(i)(1)(A)(i) to that of a lawful permanent resident on the basis of his wife's pending visa application for him. The IJ granted Mortera a recess to pursue that option.

Mortera next appeared before the IJ on August 29, 2003, this time with a valid spousal visa, which ICE had approved on March 27, 2003. The DHS contended that Mortera was not eligible to adjust his status under section 1255(i)(1)(A)(i) because he was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). Section 1182(a)(9)(C)(i)(I) states that aliens are inadmissible if they have more than one year of unlawful presence in the United States and thereafter illegally enter or reenter the United States without being admitted.³ Mortera, the DHS argued, fell under section 1182(a)(9)(C)(i)(I) because he entered illegally in November of 1996, and then reentered illegally on June 10, 2001, after he had accumulated more than one year of illegal presence. The DHS took the position before the IJ that an alien subject to section 1182(a)(9)(C)(i)(I) was ineligible to adjust his status under section 1255(i)(1)(A)(i) to that of a lawful permanent resident.

Mortera responded once again stating that his 2002 conviction did not accurately reflect his conduct because he only once entered the United States illegally and that entry occurred in 1996, so he was not subject to section 1182(a)(9)(C)(i)(I) because he did not enter the United States without being admitted after he had been unlawfully present in the United States for more than one year. The IJ, now faced with an objection from the DHS, was no longer willing to credit Mortera's account of the facts, and ruled that Mortera was collaterally estopped from denying the truth of the material allegations underlying his conviction. The IJ then ruled in favor of the DHS, concluding that Mortera was inadmissible under section 1182(a)(9)(C)(i)(I) and, as a consequence, was ineligible to adjust his status under section 1255(i) to that of a lawful permanent resident. The IJ also denied Mortera the opportunity to remove himself voluntarily, deciding he was untrustworthy because he had fraudulently used someone else's green card to obtain work.

Mortera then appealed to the BIA, which, on March 5, 2004, affirmed the decision of the IJ and dismissed the appeal. In affirming the IJ, the BIA drew two important conclusions of law: (1) 8 U.S.C. § 1255(i)(1)(A)(i), which allows certain physically present aliens "who entered the United States without inspection" to adjust their status to that of a lawful permanent resident, applies only to aliens whose sole statutory ground of inadmissibility is established merely by their having made a single entry without inspection (e.g., those who are rendered inadmissible only by § 1182(a)(6)(A)(i), see note 2 supra); and (2) the "[e]xcept as otherwise provided" clause of 8 U.S.C. § 1182(a) does not waive the inadmissibility created by section 1182(a)(9)(C)(i)(I) (see note 3, supra) and thereby permit such an inadmissible alien to adjust his or her status under section 1255(i)(1)(A)(i). It is from this disposition that Mortera now appeals.⁴

Standard of Review

The BIA's conclusions of law are reviewed de novo, "although with the usual deference to the [BIA's] interpretation of ambiguous portions of the Act in accordance with Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996). To warrant deference, the BIA's interpretation of ambiguities in the law must be reasonable. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.2001). In applying this standard, we are mindful that the Attorney General's construction of immigration law is entitled to considerable respect. Gonzalez v. Reno, 212 F.3d 1338, 1349 n. 12 (11th Cir.) ("The authority of the executive branch in immigration matters stems from the primacy of the President and other executive officials (such as the INS) in matters touching upon foreign affairs. Respect for the authority of the executive branch in foreign affairs is a well-established theme in our law.") (citing INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999) and United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936)), reh'g denied, 215 F.3d 1243, cert. denied, 530 U.S. 1270, 120 S.Ct. 2737, 147 L.Ed.2d 1001 (2000).

Discussion

I.

Mortera wants to adjust his status under 8 U.S.C. § 1255(i)(1)(A)(i) from that of an illegal alien to that of a lawful permanent resident. Section 1255(i), titled "Adjustment of status of certain aliens physically present in United States," provides in relevant part:

"(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States—

(A) who—

(i) entered the United States without inspection; or

(ii) is within one of the classes enumerated in subsection (c) of this section; and

(B) who is the beneficiary [of a spousal visa issued under 8 U.S.C. § 1153(d)]

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence."⁵

The Attorney General may then grant the application if, inter alia, "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence[.]" 8 U.S.C. § 1255(i)(2)(A) (emphasis added).

The Government does not dispute that Mortera is physically present in the United States or that he is the beneficiary of a valid spousal visa. The Government maintains, however, that the Attorney General cannot lawfully adjust Mortera's status because, as the BIA determined, section 1182(a)(9)(C)(i)(I) renders him inadmissible to the United States.

The BIA concluded, as the Government now argues, that Mortera is indeed inadmissible under section 1182(a)(9)(C)(i)(I). Section 1182(a)(9)(C), titled "Aliens unlawfully present after previous immigration violations," states that any alien who "has been unlawfully present in the United States for an aggregate period of more than 1 year, . . . and who enters or attempts to reenter the United States without being admitted is inadmissible." 8 U.S.C. § 1182(a)(9)(C)(i)(I) (emphasis added) (see note 3 above). The Government contends that the BIA, in ruling Mortera inadmissible, was simply applying the law in a manner consistent with its plain language because Mortera had accumulated more than one year of unlawful presence and he thereafter committed an illegal reentry on June 10, 2001.

Mortera does not contend that section 1182(a)(C)(i)(I) does not apply to him—he in effect concedes that it does—but rather argues that the "except as otherwise provided" prefatory language in 8 U.S.C. § 1182(a) (see note 3 above) implicitly waives this ground of inadmissibility for purposes of rendering him eligible for an adjustment of status under section 1255(i)(1)(A)(i). Section 1182(a)...