Palacios v. Holder

• Decision Date: 01 December 2011
• Docket Number: No. 09–72059.,09–72059.
• Citation: 2011 Daily Journal D.A.R. 17250,11 Cal. Daily Op. Serv. 14443,662 F.3d 1128
• Parties: Maria Matilde CARRILLO DE PALACIOS, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 14,443

2011 Daily Journal D.A.R. 17,250

662 F.3d 1128

Maria Matilde CARRILLO DE PALACIOS, Petitioner,

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

No. 09–72059.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 2011.Filed Dec. 1, 2011.

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.

ORDER

The opinion filed on June 21, 2011, 651 F.3d 969, is withdrawn. A superseding opinion will be filed concurrently with this order. Accordingly, the pending petition for rehearing/petition for rehearing en banc (Docket No. 40) is DENIED as moot, without prejudice to refiling a subsequent petition for rehearing and/or petition for rehearing en banc with respect to Section II only.

OPINION

M. SMITH, Circuit 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 being “ordered removed under ... any ... provision of law, and ... enter[ed] or attempt[ed] to reenter the United States without being admitted,” which renders her inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II). 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.

FACTUAL AND PROCEDURAL BACKGROUND

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.

JURISDICTION AND STANDARD OF REVIEW

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.

DISCUSSION

I. Statutory Framework

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:

(i) In general

Any alien who—

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(II) has been ordered removed under section 1225(b)(1) of this title, section 1229a of this title, or any other provision of law,

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.

II. Inadmissibility under 8 U.S.C. § 1182(a)(9)(C)

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)(II). We need not address the arguments regarding § 1182(a)(9)(C)(i)(I), 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 ordered removed under ... any ... provision of law, and ... enter[ed] or attempt[ed] to reenter the United States without being admitted.” 8 U.S.C. § 1182(a)(9)(C)(i)(II). Thus, inadmissibility under this provision requires two elements: (1) an order of removal, and (2) subsequent illegal entry or attempted reentry.

As to the first requirement, the BIA found that Carrillo de Palacios was “deported from the United States on December 20, 1984,” and was therefore “previously removed” for purposes of § 1182(a)(9)(C)(i)(II).³ Ample evidence in the record supports this finding. Carrillo de Palacios conceded to the BIA that she “was deported over twenty years ago” pursuant to “an order of deportation in her name from 1984,” and her deportation warrant states that “an order has been duly made that the alien CARILLO de Palacios, Matilde [sic] ... is subject to deportation under ... [INA §] 241(a)(2).”

Carrillo de Palacios contends that she voluntarily departed the country in early 1984 and should not have been ordered deported in December 1984. However, her argument ignores both the BIA's factual findings and the abundant evidence in the record that she was indisputably removed under an order of deportation. See Ramirez–Juarez v. INS, 633 F.2d 174, 175–76 (9th Cir.1980) (per curiam) (“[A]n alien cannot collaterally attack an earlier exclusion or deportation at a subsequent deportation hearing, in the absence of a gross miscarriage of justice at the prior proceedings.”). Moreover, “courts lack jurisdiction to review factual determinations underlying adjustment-of-status decisions,” and it is therefore too late for Carrillo de Palacios to dispute the BIA's conclusions. Morales–Izquierdo, 600 F.3d at 1084.

As to the second requirement, the BIA properly determined that Carrillo de Palacios entered the United States without being admitted. Substantial evidence supports the conclusion that she last illegally entered in September 1997. Moreover, in her briefs in this case, Carrillo de Palacios acknowledged her September 1997 return to the United States.

In sum, because Carrillo de Palacios was ordered removed and then entered the United States without permission, she is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II).

III. Exception to Inadmissibility under 8 U.S.C. § 1182(a)(9)(C)(ii)

Because Carrillo de Palacios is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II), she may only seek adjustment of status under § 1255(i) if she qualifies under the exception to inadmissibility set forth in § 1182(a)(9)(C)(ii). Garfias–Rodriguez, 649 F.3d at 945; see also Morales–Izquierdo, 600 F.3d at 1079 (discussing § 1182(a)(9)(C)(ii) with respect to § 1182(a)(9)(C)(i)(II)); Gonzales, 508 F.3d at 1231 (same).

We have previously explained the mechanics of § 1182(a)(9)(C)(ii): “while residing outside the United States,” the alien must “appl[y] for and receive [ ] advance permission from the Secretary of Homeland Security ... to reapply for admission.” Morales–Izquierdo, 600 F.3d at 1079. However, the alien “is not eligible for such advance permission until ten years have elapsed since his [or her] last departure from the United States. This is commonly known as the ...