Ramirez v. Holder, 09-1629.

• Decision Date: 22 June 2010
• Docket Number: No. 09-1629.,09-1629.
• Parties: Reynaldo Angeles RAMIREZ; Catalina Solorzano Arzate, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

609 F.3d 331

Reynaldo Angeles RAMIREZ; Catalina Solorzano Arzate, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1629.

United States Court of Appeals Fourth Circuit.

Argued May 13, 2010.

Decided June 22, 2010.

ARGUED: Carolyn Ann Killea, Deutsch Killea & Eapen, Washington, D.C., for Petitioners. Liza Murcia, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Morris H. Deutsch, Deutsch Killea & Eapen, Washington, D.C., for Petitioners. Tony West, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Petition for review denied by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined.

OPINION

SHEDD, Circuit Judge:

Reynaldo Angeles Ramirez and his wife Catalina Solorzano Arzate, who is a derivative applicant, petition for review of the Board of Immigration Appeals' decision dismissing their appeal of an immigration judge's denial of Ramirez's application for adjustment of status under 8 U.S.C. § 1255(i).¹ We deny the petition.

I

Ramirez and Arzate are Mexican citizens. Ramirez entered the United States without inspection on at least three occasions. He first entered the country in September 1995, and he departed in December 1996. He next entered the country in May 1997, and he departed in April 2000. He again entered the country in August 2000.

In April 2001, Ramirez's employer, L.F. Jennings, Inc., began the process of seeking adjustment of status for him by filing a labor certification on his behalf. As we recently explained:

Aliens who seek to adjust their status based on employment ... are ... required to demonstrate that they are eligible for an employment-based visa and that an employment-based visa is immediately available. To do so requires the prospective immigrant to find a job with an employer willing to sponsor him through the time-consuming application process for labor certification and issuance of an immigrant visa. The prospective employer first must apply on behalf of the alien to the Department of Labor (“DOL”) for a Labor Certification. The DOL's issuance of a Labor Certification indicates that the DOL is satisfied that (1) sufficient United States workers are not able, willing, qualified, and available for a particular job; and (2) employment of a particular alien will not adversely [affect] the wages and working conditions of United States workers similarly employed. With a valid Labor Certification in hand, the prospective employer then submits a petition (technically speaking, a Form I-140 Immigrant Visa Petition for Alien Worker) to the USCIS [United States Citizenship and Immigration Services] for an immigrant work visa. At that point, the alien ... can apply to adjust his status by filing a Form I-485.

Lee v. USCIS, 592 F.3d 612, 616 (4th Cir.2010) (citations omitted and internal punctuation altered). If the USCIS grants the application to adjust status, “then the alien is issued a ‘Green Card’ reflecting his right to live and work in the United States permanently (assuming he does nothing to cause his removal).” Id. at 616 n. 2.

Ramirez's labor certification was approved. L.F. Jennings Inc. thereafter filed an I-140 visa petition on Ramirez's behalf, and he filed an I-485 application to adjust his status based on the I-140 petition. Although the I-140 petition was subsequently approved, the I-485 application was denied because Ramirez was deemed inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) for aggregate unlawful presence in the United States in excess of one year.

Ramirez and Arzate were then issued Notices to Appear charging them with being removable under § 1182(a)(6)(A)(i) as aliens present in the United States without being admitted or paroled. In response, they conceded removability but argued that Ramirez is entitled to adjustment of status under § 1255(i) based on the approved labor certification and Form I-140 petition.

The IJ denied Ramirez's application for adjustment of status, ruling first that he is ineligible under § 1255(i). The IJ based this ruling on the BIA's precedential decision of In re Briones, 24 I. & N. Dec. 355 (BIA 2007). In Briones, the BIA held that aliens (such as Ramirez) who are inadmissible under § 1182(a)(9)(C)(i)(I) because they entered the United States unlawfully after accruing more than a year of prior unlawful presence are foreclosed from adjusting their status under § 1255(i) on the basis of approved immigrant visa applications. The IJ also denied Ramirez's alternative request for discretionary nunc pro tunc relief.² The IJ concluded that Ramirez's case “does not fall into any of the categories in which the Board has applied nunc pro tunc relief,” and he denied the application for such relief “based on the applicable law and in the exercise of discretion.” J.A. 64. Because Ramirez was not entitled to relief, the IJ also denied Arzate's application for derivative relief.

Thereafter, the BIA dismissed Ramirez's and Arzate's appeal of the IJ decision and order. In doing so, the BIA concluded that the IJ had properly followed Briones, and it rejected Ramirez's argument that the case should be overruled.³ The BIA further declined to grant Ramirez nunc pro tunc relief, finding that the IJ had properly resolved the issue. This petition for review followed.

II

Ramirez and Arzate primarily challenge the BIA's determination, based on Briones, that Ramirez is ineligible for § 1255(i) adjustment of status based on his inadmissibility under § 1182(a)(9)(C)(i)(I). This is purely a legal question involving the BIA's interpretation of immigration statutes. Therefore, our review is subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Midi v. Holder, 566 F.3d 132, 136 (4th Cir.) cert. denied, --- U.S. ----, 130 S.Ct. 805, ---L.Ed.2d ---- (2009). Under this standard, we initially examine the statutory language, and if Congress has spoken clearly on the precise question at issue, the statutory language controls; however, if the statute is silent or ambiguous, we defer to the BIA's interpretation if it is reasonable. Id. at 136-37.

Ramirez and Arzate argue that they should prevail under both prongs of this analysis. Thus, they contend that under the plain language of § 1255(i), Ramirez is entitled to adjust his status. Alternatively, they contend that even if the statutory language is ambiguous, the BIA's decision in Briones is unreasonable.

Since Briones was decided, two federal circuit courts have considered the precise issue before us. See Mora v. Mukasey, 550 F.3d 231 (2d Cir.2008); Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir.2008). In both cases, the courts concluded that the pertinent statutory language is ambiguous and that the BIA's interpretation in Briones is reasonable and entitled to deference. We agree.

A.

We begin by examining the statutory language. In doing so, we note that the two statutes, §§ 1182(a) and 1255(i), “serve conflicting goals. Section 1182(a) lists a number of bases that render an alien inadmissible to this country. Section 1255(i) allows aliens who entered without inspection but who have access to a visa ... to legalize their status without leaving the country....” Ramirez-Canales, 517 F.3d at 907.

Section 1182(a)(6)(A)(i) provides: “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” Having a more narrow reach, § 1182(a)(9)(C)(i)(I) provides that an 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.” ⁴ There is no dispute that Ramirez is inadmissible under both of these statutes.

Ramirez is seeking adjustment of status pursuant to § 1255(i), which provides (in subsection (1)(A)(i)) that an alien who is physically present in the United States and who “entered the United States without inspection” may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. However, § 1255(i)(2)(A) permits the Attorney General to adjust the alien's status only if ( inter alia ) the alien “is admissible to the United States for permanent residence.”

A plain application of these statutes creates a problem: “By its express language, § 1255(i)(1)(A)(i) applies to aliens who ‘entered the United States without inspection.’ If all aliens unlawfully present are inadmissible as a result of § 1182(a), and admissibility is a condition for § 1255(i)(2)(A) relief, then no one would ever be eligible under § 1255(i)(2)(A).” Ramirez-Canales, 517 F.3d at 908. Stated differently, as the BIA noted in Briones, a plain reading of the statutes makes entry without inspection “both a qualifying and disqualifying condition for adjustment of status.” 24 I. & N. Dec. at 362.

It is a “settled rule that we must, if possible, construe a statute to give every word some operative effect.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004). However, as the Second Circuit explained:

[A] literal reading of section 1255(i) threatens to render the statute a nullity, and so it is necessary to read the statute as implicitly waiving unlawful presence as a ground for inadmissibility in certain circumstances. But whether it should be read as waiving inadmissibility only under the general section 1182(a)(6)(A)(i), or whether it should read as waiving inadmissibility under the more specific section 1182(a)(9)(C)(i)(I) as well, cannot be inferred from the text of the immigration laws alone.

Mora, 550...