Nunez–Moron v. Holder

• Decision Date: 14 January 2013
• Docket Number: No. 11–2317.,11–2317.
• Citation: 702 F.3d 353
• Parties: Gustavo NUNEZ–MORON, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

702 F.3d 353

Gustavo NUNEZ–MORON, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–2317.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 2012.

Decided Oct. 30, 2012.

As Amended on Denial of Rehearing Jan. 14, 2013.

Floyd James Fernandez, Attorney, Pacifica Legal Services, Ventura, CA, for Petitioner.

Oil, Attorney, Luis E. Perez, Attorney, Department of Justice, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and MANION and TINDER, Circuit Judges.

MANION, Circuit Judge.

Gustavo Nunez–Moron, a citizen of Mexico, sought cancellation of removal, waiver of inadmissibility, and adjustment of status based on alien-relative petitions from his wife, a United States citizen, and his father, a legal permanent resident. Concluding that Nunez was inadmissible because he had re-entered the United States after previously being removed, the Immigration Judge and the Board of Immigration Appeals denied his applications. Nunez now petitions this court for review. Because Nunez's allegations of error lack merit, we deny his petition.

I. Background

Nunez illegally entered the United States in 1992. In 1997, Nunez's father filed an I–130 Petition for Alien Relative on Nunez's behalf.¹ The petition was approved the following year. On September 15, 1999, Nunez was convicted in state court of misdemeanor battery pursuant to California Penal Code § 242. He was sentenced to time served, that is, fifteen days in jail, and three years' probation. The sentencing court also imposed a fine and required Nunez to receive domestic violence counseling.

Nunez contends that, on the date of his conviction, he was illegally removed to Mexico pursuant to an expedited removal order. See8 U.S.C. § 1228 (expedited removal of criminal aliens). Nunez's conviction documents, though, do not indicate that he was turned over to immigration officers. The record only shows that Nunez was subjected to an expedited removal order about a week later, when on September 24, 1999, he attempted to enter the United States at the Mexico–California border. On that date, Nunez approached the border with an I–551 resident-alien card bearing the name “Enrique Mendoza–Gutierrez,” which he had purchased in Mexico. He was detained and questioned by the Immigration and Naturalization Service (“INS”). Nunez told the interrogating officer that his name was “Roberto Mendez–Munoz.” Under oath, Nunez stated that the resident-alien card did not belong to him and that he knew it is illegal to enter the United States with false identification. Nunez admitted that he lacked legal documentation permitting him to enter or reside in the United States. Nunez also stated that he did not have any immigration applications pending, that he previously had never been in the United States, and that he had never been removed or deported. The officer concluded that Nunez—whom the officer still believed to be Mendez–Munoz ²—was inadmissible, and removed him from the United States pursuant to an expedited removal order. See8 U.S.C. § 1225(b)(1) (expedited removal of inadmissible arriving aliens); 8 U.S.C. § 1182(a)(6)(C)(i) (attempted admission by fraud), (a)(7)(A)(i)(I) (attempted admission without valid entry documents). As part of the expedited removal process, Nunez was informed that he could not re-enter the United States for five years, and that attempting to do so could subject him to criminal penalties.

Nonetheless, Nunez re-entered the United States on December 1, 1999. Subsequently, Nunez filed applications for asylum, withholding of removal, and protection under the Convention Against Torture. The INS then filed a Notice to Appear with the immigration court in Los Angeles, California, and alleged that Nunez was removable. Nunez appeared with counsel before an Immigration Judge (“IJ”) in Los Angeles, admitted the factual allegations in the Notice to Appear, and conceded removability. Nunez also withdrew his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Instead, Nunez petitioned the IJ for cancellation of removal or, alternatively, voluntary departure. The IJ concluded that Nunez was not eligible for cancellation of removal because, in light of the September 24 expedited removal, he had not remained physically present in the United States for ten years prior to the date of his application. See8 U.S.C. § 1229b(b)(1). Consequently, the IJ granted Nunez's alternative request for voluntary departure.

Nunez appealed the IJ's decision to the Board. Before the Board ruled, however, Nunez moved to reopen his removal proceedings because his wife had become a United States citizen and had filed an I–130 petition on his behalf. ³ Without opposition from the Department of Homeland Security (“DHS”), the Board granted Nunez's motion and remanded.

Nunez subsequently moved to Illinois, and the IJ granted Nunez's request to transfer his removal proceedings to Chicago, Illinois. After a hearing, the IJ in Chicago issued a written decision reinstating the earlier denial of cancellation of removal. In addition, the IJ held that Nunez was ineligible for adjustment of status because he had illegally re-entered the United States after previously being removed under § 1225(b)(1). See8 U.S.C. § 1182(a)(9)(C)(i)(II). Finally, the IJ noted that, although the DHS had not reinstated Nunez's September 24 expedited removal order, the order still might preclude his request for adjustment of status. See8 U.S.C. § 1231(a)(5).

On appeal, the Board initially remanded because the record was misplaced. At a subsequent hearing, the IJ recounted the procedural posture of the removal proceedings and, without objection from Nunez, reissued his prior decision. After briefing, the Board issued a written decision dismissing Nunez's appeal. The Board rejected Nunez's argument that, despite having illegally re-entered the United States, he could petition for adjustment of status under 8 U.S.C. § 1255(i). The Board also held that Nunez was ineligible for adjustment of status because of his September 24 expedited removal order-even though the order never had been reinstated by the DHS. Finally, the Board agreed that Nunez was ineligible for cancellation of removal because he had not remained physically present in the United States for ten years prior to the date of his cancellation application. The Board orderedNunez removed. He now seeks review by this court.

II. Discussion

Nunez contends that the Board erred in holding that he was ineligible for adjustment of status under § 1182(a)(9)(C)(i)(II) because he illegally re-entered the United States after his expedited removal. Nunez also challenges the Board's alternate conclusion that his September 24 expedited removal bars his request for adjustment of status. Finally, Nunez argues that the Board erred in finding that he had not remained physically present in the United States for ten years prior to the date of his cancellation application.

A. Nunez's Prior Removal and Re–Entry Make Him Ineligible for Adjustment of Status

Nunez argues that he is not inadmissable under § 1182(a)(9)(C)(i)(II) because § 1255(i) “otherwise provide[s]” that he is admissible—or, at least, that he may seek adjustment of status.⁴See8 U.S.C. § 1182(a) (“ 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 ....”) (emphasis added). Alternatively, Nunez argues that, at a minimum, there is a statutory conflict between § 1182(a)(9)(C)(i)(II) and § 1255(i). Consequently, according to Nunez, § 1255(i) controls over § 1182(a)(9)(C)(i)(II) because it is the more recently enacted statute.

The Board has rejected these arguments and held that an alien may not adjust his status under § 1255(i) if he is inadmissible under either § 1182(a)(9)(C)(i)(I) or § 1182(a)(9)(C)(i)(II).⁵See In re Briones, 24 I. & N. Dec. 355 (BIA 2007); In re Torres–Garcia, 23 I. & N. Dec. 866 (BIA 2006). Other circuits have uniformly deferred to Briones and Torres–Garcia when considering the interplay between § 1182(a)(9)(C) and § 1255(i). See, e.g., Carrillo de Palacios v. Holder, 662 F.3d 1128, 1132–34 (9th Cir.2011); Sarango v. Attorney Gen. of U.S., 651 F.3d 380, 387 (3d Cir.2011).⁶ In dicta, we have agreed that Briones and Torres–Garcia are entitled to deference. See Lemus–Losa v. Holder, 576 F.3d 752, 760 (7th Cir.2009). Recently, we elevated that dicta to a holding in Gonzalez–Balderas v. Holder, 597 F.3d 869, 870 (7th Cir.2010). Nunez does not identify any compelling reason to re-visit this precedent, and we decline to do so. See McClain v. Retail Food Emp'rs Joint Pension Plan, 413 F.3d 582, 586 (7th Cir.2005) (“We require a compelling reason to overturn circuit precedent.”).⁷

Nunez also attempts to distinguish these decisions based on his claim that he was removed illegally on September 15, 1999. However, the record contains no evidence that Nunez was subjected to an expedited removal order on September 15. And Nunez does not challenge the September 24 expedited removal order as improper in itself. Moreover, Nunez's argument would amount to a collateral attack on the legality of his purported September 15 removal, and we would lack jurisdiction to review such a challenge. 8 U.S.C. § 1252(a)(2)(A); Khan v. Holder, 608 F.3d 325, 328–31 (7th Cir.2010).

Finally, Nunez argues that, even if he were inadmissible pursuant to § 1182(a)(9)(C)(i)(II), he nonetheless would be eligible to request waiver of this inadmissibility by petitioning the Attorney General—by means of a nunc pro tunc petition—to retroactively consent to his § 1255(i) application for adjustment of status. See8 C.F.R. § 212.2(e). In Torres–Garcia, the Board considered this argument and held that an alien is not eligible for relief via a nunc pro tunc petition if such relief would avoid § 1182(a)(9)(C)'s...