Zermeno v. Lynch

• Decision Date: 31 August 2016
• Docket Number: No. 15–60206,15–60206
• Citation: 835 F.3d 514
• Parties: J. Gumaro Sanchez Zermeno, also known as J. Gumaro Sanchez, also known as Gumaro Sanchez, also known as Juan Gumaro Sanchez Zermeno, Petitioner v. Loretta Lynch, U.S. Attorney General, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

835 F.3d 514

J. Gumaro Sanchez Zermeno, also known as J. Gumaro Sanchez, also known as Gumaro Sanchez, also known as Juan Gumaro Sanchez Zermeno, Petitioner

v.Loretta Lynch, U.S. Attorney General, Respondent

No. 15–60206

United States Court of Appeals, Fifth Circuit.

Filed August 31, 2016

Lawrence Erik Rushton, Rushton Law Firm, Bellaire, TX, for Petitioner.

Virginia M. Lum, Andrew Jacob Oliveira, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.

Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit Judges.

CARL E. STEWART

, Chief Judge:

Petitioner J. Gumaro Sanchez Zermeno (“Zermeno”), a native and citizen of Mexico, seeks review of an order of the Board of Immigration Appeals (“BIA”) upholding the Immigration Judge's (“IJ”) denial of his applications for adjustment of status and cancellation of removal. We DENY the petition.

I.

On August 1, 2012, Zermeno was issued a notice to appear for a charge of removability as an alien present in the United States without being admitted or paroled under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). Zermeno conceded removability but applied for adjustment of status under INA Section 245(i) and cancellation of removal under INA Section 240A(b). The IJ concluded that Zermeno was barred from adjustment of status because he was inadmissible under Section 212(a)(9)(C)(i)(I) and did not meet Section 212(a)(9)(C)(ii)'s exception to inadmissibility. The IJ also concluded that she lacked authority to entertain Zermeno's request for permission to reapply for admission. Finally, the IJ found that Zermeno was not eligible for cancellation of removal because he failed to establish ten years' continuous physical presence in the United States. The IJ thus denied Zermeno's applications and ordered Zermeno removed.

Zermeno appealed to the BIA. The BIA agreed with the IJ that Zermeno had not met the Section 212(a)(9)(C)(ii) exception to inadmissibility and that there was no basis to grant nunc pro tunc relief to allow Zermeno to reapply for admission. The BIA also concluded that the IJ's finding that Zermeno failed to establish ten years' continuous physical presence was not clearly erroneous. The BIA dismissed Zermeno's appeal. Zermeno timely petitioned for review.

II.

Generally, we review only the final decision of the BIA. Ojeda–Calderon v. Holder , 726 F.3d 669, 672 (5th Cir. 2013)

. When, as here, the IJ's ruling affected the BIA's decision, we also review the IJ's decision. Id. “The BIA's conclusions of law are reviewed de novo , although deference is given to the BIA's interpretation of immigration regulations if that interpretation is reasonable.” Barrios–Cantarero v. Holder , 772 F.3d 1019, 1021 (5th Cir. 2014). We review “factual findings for substantial evidence, and we may not overturn the BIA's factual findings unless the evidence compels a contrary conclusion.” Ojeda–Calderon , 726 F.3d at 672–73.

III.

“Section 245 of the INA provides for the ‘[a]djustment of status of nonimmigrant to that of person admitted for permanent resident.’ ” Sattani v. Holder , 749 F.3d 368, 371 (5th Cir. 2014)

(alteration in original) (quoting 8 U.S.C. § 1255 ). Section 245(i) “provides that ‘an alien physically present in the United States who entered the United States without inspection[,] or is within one of the classes enumerated in subsection (c) of this section ... may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.’ ” Id. (quoting 8 U.S.C. § 1255(i)(1)(A)-(C) ). Section 245(i) allows for adjustment of status if, inter alia , “the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.” Id. (emphasis omitted) (quoting 8 U.S.C. § 1255(i)(2)(A) ). Because eligibility for visas and admissibility is governed by Section 212(a) of the INA, “an applicant for adjustment of status under INA § 245(i) must establish that she is ‘not inadmissible under any of the various paragraphs of [§] 212(a) ... or that [she is] eligible for a waiver of any applicable ground of inadmissibility.’ ” Id. (alterations and omission in original) (quoting Matter of Lemus–Losa , 25 I. & N. Dec. 734, 736 (BIA 2012) ).

Under Section 212(a)(9)(C)(i)(I) of the INA, “[a]ny 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.” 8 U.S.C. § 1182(a)(9)(C)(i)(I)

. The BIA concluded that Zermeno is inadmissible under this section. Zermeno does not dispute that he was unlawfully in the United States for more than one year and that he then reentered the country. Instead, Zermeno contends that the BIA erred in concluding that he did not meet the Section 212(a)(9)(C)(ii) exception to permanent inadmissibility and that nunc pro tunc relief was unavailable.

Zermeno asserts that he is eligible for adjustment of status because he falls into the exception to Section 212(a)(9)(C)(i)(I), which provides:

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 has consented to the alien's reapplying for admission.

8 U.S.C. § 1182(a)(9)(C)(ii)

. As an initial matter, the BIA agreed with the IJ's finding that Zermeno did not obtain consent to reapply for admission from the Secretary of Homeland Security. This finding is not disputed.

Notwithstanding his failure to obtain the Secretary of Homeland Security's consent, Zermeno contends that the IJ could have granted him nunc pro tunc permission to reapply for admission because ten years had elapsed from his previous unlawful entry. The BIA relied on In re Torres–Garcia , 23 I. & N. Dec. 866 (BIA 2006)

, to conclude that Zermeno did not meet the Section 212(a)(9)(C)(ii) exception to inadmissibility. Zermeno argues that Torres–Garcia , which held that an alien must be outside the United States for at least ten years before reapplying for admission under Section 212(a)(9)(C)(ii), is not entitled to deference and is distinguishable.

This issue implicates a legal matter, the statutory interpretation of Section 212(a)(9)(C)(ii). We review the BIA's interpretation of the INA de novo, but we give “considerable deference to the BIA's interpretation of the legislative scheme it is entrusted to administer.” Mercado v. Lynch , 823 F.3d 276, 278 (5th Cir. 2016)

(citation and internal quotation marks omitted). Because the BIA relied upon Torres–Garcia in holding that an alien must be outside the United States for ten years to be eligible for the Section 212(a)(9)(C)(ii) exception to inadmissibility, we apply the Chevron two-part inquiry to our review of this issue. See

Siwe v. Holder , 742 F.3d 603, 607 n.24 (5th Cir. 2014). Under Chevron, we must first determine “whether Congress has directly spoken to the question at issue.” Orellana–Monson v. Holder , 685 F.3d 511, 517 (5th Cir. 2012). “If so, the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. But, “[i]f not, the court must determine whether the agency's answer is based on a permissible construction of the statute.” Id. “Courts give agency interpretations ‘controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.’ ” Id. (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).

Section 212(a)(9)(C)(ii)'s exception to inadmissibility provides that Section 212(a)(9)(C)(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 has consented to the alien's reapplying for admission.” 8 U.S.C. § 1182(a)(9)(C)(ii)

. The BIA has interpreted this provision as requiring an alien to remain outside the United States for at least ten years. Torres–Garcia , 23 I. & N. Dec. at 875 (concluding that Section 212(a)(9)(C)(ii) applies “only after the alien has been outside the United States for ten years” (quoting Berrum–Garcia v. Comfort , 390 F.3d 1158, 1167 (10th Cir. 2004)

)); see also

Mortera–Cruz v. Gonzales , 409 F.3d 246, 250 n.4 (5th Cir. 2005) (stating that prior version of Section 212(a)(9)(C)(ii) applies to “an alien who has been outside the United States more than 10 years since his or her last departure”).

We defer to the BIA's interpretation in Torres–Garcia because it is based on a permissible construction of Section 212(a)(9)(C)(ii). This exception applies when it has been “more than 10 years after the date of the alien's last departure from the United States.” 8 U.S.C. § 1182(a)(9)(C)(ii)

. The BIA's interpretation of this section as requiring the alien to remain outside the United States for ten years is consistent with the statutory language. In fact, the statute requires an alien to wait ten years after departing the United States and then seek the Secretary of Homeland Security's consent prior to returning. “If ten years must elapse between departure and return, then it necessarily follows that those ten years must be spent outside the United States.” Carrillo de Palacios v. Holder , 708 F.3d 1066, 1074 (9th Cir. 2013).

The BIA and our sister circuits have all concluded that Section 212(a)(9)(C)(ii) requires the alien to be absent from the United States more than ten years before applying to the Secretary of Homeland Security. See id. at 1073

; Delgado v. Mukasey , 516 F.3d 65, 73 (2d Cir. 2008) (holding that Section 212(a)(9)(C)(ii) “requires that [an alien]...