Palacios v. Eric H. Holder Jr.
| Decision Date | 21 June 2011 |
| Docket Number | No. 09–72059.,09–72059. |
| Citation | 651 F.3d 969,11 Cal. Daily Op. Serv. 7571,2011 Daily Journal D.A.R. 9125 |
| Parties | Maria Matilde CARRILLO DE PALACIOS, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Background: Mexican national brought Petition for Review from final order of Board of Immigration Appeals (BIA), appealing determination that she was ineligible for adjustment of status.
Holdings: The Court of Appeals, M. Smith, Circuit Judge, held that:
(1) national was inadmissible under Immigration and Nationality Act (INA);
(2) applicable statute was not impermissibly retroactive as applied to national; and
(3) national did not qualify for statutory exception to inadmissibility.
Petition denied.
Mari Matsumoto, Robert Pauw (argued), and Erin Cipolla, Gibbs Houston Pauw, Seattle, WA, for the petitioner.
Tony West, John S. Hogan, Channah M. Farber, and Jessica E. Sherman (argued), Civil Division, United States Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A026–630–010.Before: SUSAN P. GRABER and MILAN D. SMITH, JR., Circuit Judges, and ROGER T. BENITEZ,* District Judge.
Petitioner Maria Matilde Carrillo de Palacios (Carrillo de Palacios) petitions for review of a decision of the Board of Immigration Appeals (BIA). The BIA determined that Carrillo de Palacios is ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i), because she is inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. § 1182(a)(9)(C)(i), and is not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).
We deny the petition, as the BIA correctly concluded that Carrillo de Palacios returned to the United States after having been “unlawfully present in the United States for an aggregate period of more than 1 year,” which renders her inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). We reject her argument that the § 1182(a)(9)(C)(i)(I) one-year period of unlawful presence must occur after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104–208, div. C, § 309(a), 110 Stat. 3009–546, 3009–625, reprinted in 8 U.S.C. § 1101 note, at 35 (2006) (Effective Date of 1996 Amendments). The BIA also correctly concluded that she does not satisfy the requirements of 8 U.S.C. § 1182(a)(9)(C)(ii)'s exception to inadmissibility. We hold that in order to be eligible under 8 U.S.C. § 1182(a)(9)(C)(ii), an alien must remain outside the United States for more than ten years before returning to the United States.
Carrillo de Palacios is a native and citizen of Mexico. The Government instituted removal proceedings against her in 2005, alleging that she had entered the United States without being admitted or paroled, and therefore was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). She conceded removability and sought to adjust her status to that of a lawful permanent resident under 8 U.S.C. § 1255(i). The Government opposed the adjustment-of-status application on the ground that she had been deported in December 1984 and subsequently reentered the country without permission in 1992 and 1997.
The immigration judge granted the adjustment-of-status application, concluding that cases such as Acosta v. Gonzales, 439 F.3d 550 (9th Cir.2006), provided the judge authority to “cure the prior deportation and subsequent illegal return.” The BIA then reversed in an unpublished decision, holding in relevant part that Carrillo de Palacios was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i), that she did not qualify for the exception to inadmissibility under 8 U.S.C. § 1182(a)(9)(C)(ii), and that, as a result, she was not eligible for adjustment of status under 8 U.S.C. § 1255(i). The BIA accordingly ordered her removed.
Because the BIA's decision was issued in 2009, our review is governed by the REAL ID Act of 2005, Pub.L. No. 109–13, div. B, 119 Stat. 231. When addressing adjustment-of-status issues contained in final orders of removal, we have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D). Morales–Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1084 (9th Cir.2010). We review those questions of law de novo. Id. at 1086 n. 9.
To obtain adjustment of status under INA section 245(i), an alien must be “admissible to the United States for permanent residence.” 8 U.S.C. § 1255(i)(2)(A). Aliens who are inadmissible under INA section 212(a)(9)(C), 8 U.S.C. § 1182(a)(9)(C), are ineligible for adjustment of status. That provision, entitled “Aliens unlawfully present after previous immigration violations,” states:
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 Secretary of Homeland Security [Secretary] has consented to the alien's reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(i)–(ii).1
Although our construction of these provisions might be viewed as occasionally inconsistent, the law of our circuit is now settled: according Chevron deference to the BIA's interpretation of the relevant statutes, we have held that aliens who are inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I)–(II) are ineligible for adjustment of status under 8 U.S.C. § 1255(i). See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).2 Aliens who are otherwise inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i) are deemed admissible only if they qualify for the exceptions to inadmissibility stated in § 1182(a)(9)(C)(ii)–(iii). The exception at issue in this case, § 1182(a)(9)(C)(ii), “requir[es] that [the alien] obtain permission to apply for readmission from outside the United States after ten years have lapsed from the date of his last departure.” Gonzales, 508 F.3d at 1242.
[1] The BIA concluded that Carrillo de Palacios is inadmissible under both 8 U.S.C. § 1182(a)(9)(C)(i)(I) and § 1182(a)(9)(C)(i)(II), and thus is ineligible for adjustment of status under § 1255(i). We agree with the BIA's conclusion regarding § 1182(a)(9)(C)(i)(I). We need not address the arguments regarding 8 U.S.C. § 1182(a)(9)(C)(i)(II), and we express no opinion regarding the BIA's analysis of that provision.
The statutory text is straightforward: an alien is inadmissible if she “has been unlawfully present in the United States for an aggregate period of more than 1 year” and subsequently “enters ... the United States without being admitted.” 8 U.S.C. § 1182(a)(9)(C)(i)(I). The parties agree that Carrillo de Palacios was unlawfully present for more than one year between 1981 and 1983, and that she returned without being admitted in September 1997. These facts establish that she satisfies both elements of § 1182(a)(9)(C)(i)(I): she “enter[ed] ... the United States without being admitted” in 1997 after having “been unlawfully present ... for an aggregate period of more than 1 year” between 1981 and 1983. Id.; see also Garfias–Rodriguez, 649 F.3d at 943–44, 949 ( ). The BIA therefore correctly concluded that she is inadmissible under § 1182(a)(9)(C)(i)(I).
In response, Carrillo de Palacios argues that § 1182(a)(9)(C)(i)(I) is impermissibly retroactive as applied to her case. She explains that her “accrual of unlawful presence prior to her most recent entry into the United States in September[ ] 1997, does not cause her to be inadmissible because her unlawful presence accrued before April 1, 1997, the [effective] date of ... [§ 1182(a)(9) ](C)(i)(I).”
The Supreme Court addressed a similar argument about IIRIRA's retroactivity in Fernandez–Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). The Court began by describing the retroactivity analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244, 278, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and later cases:
We first look to whether Congress has expressly prescribed the statute's proper reach, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the temporal reach specifically intended by applying our normal rules of construction. If that effort fails, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of affecting substantive rights, liabilities, or duties on the basis of conduct arising before its enactment. If the answer is yes, we then apply the presumption against retroactivity by construing the statute as inapplicable to the event or act in question owing to the absence of a clear indication from Congress that it intended such a result.
Fernandez–Vargas, 548 U.S. at 37–38, 126 S.Ct. 2422 (alterations, citations, and internal quotation marks omitted).
The Court applied this two-part analysis to reject Fernandez–Vargas's retroactivity challenge to IIRIRA's reinstatement-of-removal provision, 8 U.S.C. § 1231(...
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...as well as the present." 1 U.S.C. § 1. This provision of the Dictionary Act has been applied to the INA. See Carrillo de Palacios v. Holder , 651 F.3d 969, 976 (9th Cir. 2011) (citing 1 U.S.C. § 1 ). When accounting for the rule against surplusage, application of the Dictionary Act readily ......
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