Padilla–caldera v. Holder

• Citation: 637 F.3d 1140
• Decision Date: 22 March 2011
• Docket Number: No. 10–9520.,10–9520.
• Parties: Concepcion PADILLA–CALDERA, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

637 F.3d 1140

Concepcion PADILLA–CALDERA, Petitioner,

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

No. 10–9520.

United States Court of Appeals, Tenth Circuit.

March 14, 2011.As Corrected March 22, 2011.

Submitted on the briefs: ^*Lane McFee, Denver, CO, for Petitioner.Ernesto H. Molina, Jr., Assistant Director, and Andrew N. O'Malley, Trial Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C., for Respondent.Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.PAUL KELLY, JR., Circuit Judge.

Concepcion Padilla–Caldera petitions for review of the Board of Immigration Appeals' (BIA) decision denying his request to adjust his status to that of lawful permanent resident and ordering him removed. This is the second time this case has come before us. On a previous petition for review, we held that the BIA erred in concluding that petitioner was statutorily ineligible for an adjustment of status, and we remanded for further proceedings. On remand, the immigration judge (IJ) granted petitioner an adjustment of status, but the BIA reversed, relying on an intervening published BIA opinion. We conclude that the intervening BIA opinion is entitled to Chevron¹ deference and that the BIA did not err in relying on it to deny petitioner relief.

Procedural History

Petitioner first entered the United States from Mexico in April 1996 without inspection. He married a U.S. citizen in 1999, who filed an alien relative petition on his behalf in 2000. In May 2000, after the petition was approved, petitioner and his wife left the country so he could return to Mexico to apply for an immigrant visa.² The U.S. Consulate in Mexico determined that petitioner was not eligible for a visa, however, because he was inadmissible on two grounds. Petitioner's wife then returned to the United States to apply for a waiver of petitioner's inadmissibility. Before she could do so, she fell ill. She contacted petitioner and asked him to return to the United States to help her. Petitioner then reentered the country without inspection, which triggered 8 U.S.C. § 1182(a)(9)(C)(i)(I), making him permanently inadmissible because he was in the United States illegally for more than one year and then left and reentered without being admitted.³ Shortly after he reentered the country, petitioner was picked up by immigration authorities and placed in removal proceedings.

At the hearing before the IJ, petitioner admitted that he was removable, but sought to adjust his status under 8 U.S.C. § 1255(i). That subsection gives the Attorney General discretion to adjust the status of certain aliens who are in the country illegally provided they are eligible to receive an immigrant visa and are “admissible to the United States for permanent residence.” Id. § 1255(i)(2)(A). The IJ concluded that petitioner was statutorily ineligible for an adjustment of status under § 1255(i) because he was not admissible to the United States for permanent residence due to § 1182(a)(9)(C)(i)(I). The IJ therefore denied petitioner's application for adjustment of status and ordered him removed to Mexico. The BIA summarily affirmed the IJ's decision on appeal, and petitioner sought review in this court.

In a June 2006 opinion,⁴ this court reversed the BIA and remanded for further proceedings. See Padilla–Caldera v. Gonzales, 453 F.3d 1237 (10th Cir.2006). We held that § 1255(i) and § 1182(a)(9)(C)(i)(I) were contradictory and that we could not follow the dictates of both statutory provisions. Padilla–Caldera, 453 F.3d at 1239. In resolving the conflict, we did not have the benefit of any BIA precedent addressing the interplay between the two statutory provisions. The only agency pronouncements on the issue were a general counsel memorandum and a conflicting internal guidance memorandum, to which we did “not owe rigorous deference.” Id. at 1244. We therefore had to determine for ourselves how Congress intended the two provisions to work together. Because the statutory text itself did not indicate which provision was to control, we looked to familiar canons of statutory construction and the policies underlying the statute to resolve the conflict. Id. at 1241. We ultimately concluded that Congress intended the remedial powers of § 1255(i) to control over § 1182(a)(9)(C)(i)(I), so inadmissibility under § 1182(a)(9)(C)(i)(I) would not preclude eligibility for an adjustment of status under § 1255(i). Padilla–Caldera, 453 F.3d at 1244. We therefore reversed the BIA's decision and remanded for further proceedings.

While proceedings were pending before the IJ on remand, the BIA issued a published opinion in an unrelated case arising in the Fifth Circuit that addressed the interplay between § 1182(a)(9)(C)(i)(I) and § 1255(i) for the first time. See In re Briones, 24 I. & N. Dec. 355 (BIA 2007). The BIA concluded in Briones that an alien who is inadmissible under § 1182(a)(9)(C)(i)(I) cannot qualify for an adjustment of status under § 1255(i) absent a waiver of inadmissibility (which is not at issue here). Briones, 24 I. & N. Dec. at 371.

The government argued to the IJ in petitioner's case that he should follow the BIA's decision in Briones, rather than our decision in Padilla–Caldera, because Briones constituted intervening controlling authority that justified departing from the law of the case and the mandate rule. In his April 2008 decision, the IJ “agree[d] that the Briones decision is a correct explanation of the law with reference to the interplay between [§ 1255(i) ] ... and [§ 1182(a)(9)(C)(i) ]. The Briones case is, in this Court's opinion, a very clear and cogent explanation of the law in this area.” Admin. R. at 95–96. Nonetheless, the IJ felt “constrained” to apply this court's decision in Padilla–Caldera, even though he thought the Briones decision was “more persuasive.” Id. at 96. The IJ therefore held that petitioner was eligible for an adjustment of status under § 1255(i) and, after considering the relevant facts and law, concluded that petitioner merited a favorable exercise of discretion. Id. at 96–98. The IJ therefore granted petitioner's application for adjustment of status under § 1255(i). Id. at 98.

The government appealed the IJ's decision to the BIA, which reversed. The BIA first noted that this court had not yet considered whether Briones should be given Chevron deference. The BIA noted that this court had, however, accorded Chevron deference to the BIA's opinion in In re Lemus–Losa, 24 I. & N. Dec. 373 (BIA 2007), issued the same day as Briones, which employed “an analysis that runs parallel to that in Briones,” Admin. R. at 4 (citing Herrera–Castillo v. Holder, 573 F.3d 1004, 1007 (10th Cir.2009) (concluding that “§§ 1255(i) and 1182(a) are ambiguous and that the BIA's construction of them in Lemus–Losa was reasonable”), cert. denied, ––– U.S. ––––, 130 S.Ct. 3505, 177 L.Ed.2d 1095 (2010)). The BIA further noted that, in Herrera–Castillo, this court “observed that although the analysis in Padilla–Caldera is at odds with our holdings in Lemus–Losa and Briones, the Tenth Circuit did not have the benefit of Briones when Padilla–Caldera was issued.” Id. (citing Herrera–Castillo, 573 F.3d at 1009). The BIA held that this court's opinion in Herrera–Castillo “explicitly recognized that Briones formed our initial precedential guidance on this particular issue.” Id.

The BIA therefore concluded that Briones constituted intervening controlling authority that justified departing from the law of the case and this court's mandate. Following its holding in Briones, the BIA further concluded that petitioner was ineligible for adjustment of status under § 1255(i) based on his inadmissibility under § 1182(a)(9)(C)(i)(I). It therefore vacated the IJ's grant of adjustment of status and ordered petitioner removed. Petitioner seeks review of the BIA's decision.

Jurisdiction

Before reaching the merits of the petition for review, we must satisfy ourselves that we have jurisdiction to review. We have jurisdiction to review the petition only if there has been a final order of removal. 8 U.S.C. § 1252(a). In the order under review, the BIA reversed the IJ's grant of an adjustment of status and ordered petitioner removed. Relying on Ninth Circuit authority, petitioner argues that the BIA did not have jurisdiction to order him removed, and that it should have remanded the action to the IJ to enter an order of removal.

Petitioner is correct that the BIA does not have jurisdiction to determine removability in the first instance; that decision lies exclusively with the IJ. Sosa–Valenzuela v. Gonzales, 483 F.3d 1140, 1145–46 (10th Cir.2007). But we held in Sosa–Valenzuela that “[i]f the IJ makes a finding of removability, that finding satisfies [the statutory] definition of an order of deportation. In those circumstances, the BIA can order removal if it reverses the IJ's determination of waiver.” Id. at 1146. In so holding, we expressly rejected Ninth Circuit authority holding that if the IJ finds the alien is removable and then grants discretionary relief from removal, the BIA must remand the matter to the IJ to enter a formal order of removal if it reverses the IJ's grant of discretionary relief. Id. at 1146 n. 10.

Here, petitioner conceded he was removable at the outset of the administrative proceedings, and the IJ ordered petitioner removed. The BIA affirmed that decision, and we did not disturb the IJ's finding of removability on appeal; we considered only whether petitioner was statutorily eligible for discretionary relief from removal. In his decision on remand, the IJ explicitly referred to his previous order of removal before determining that petitioner should be granted an adjustment of status.

We conclude that the IJ's original determination that petitioner was removable remained undisturbed throughout the proceedings. When the BIA reversed the IJ's grant of an adjustment of status...