Filed: Feb. 07, 2008
Latest Update: Mar. 02, 2020
Summary: 06-5035-ag D elgado v. M ukasey 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2007 4 Docket No. 06-5035-ag 5 Argued: October 30, 2007 Decided: February 7, 2008 6 _ 7 MONICA TENESACA DELGADO, a/k/a MONICA PATRICIA TENESACA DELGADO, 8 Petitioner-Appellant, 9 v. 10 MICHAEL B. MUKASEY,1 Attorney General of the United States, 11 12 Respondent-Appellee. 13 _ 14 Before: MINER and POOLER, Circuit Judges.2 15 Appeal from an October 26, 2006 decision by the United States Immigrat
Summary: 06-5035-ag D elgado v. M ukasey 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2007 4 Docket No. 06-5035-ag 5 Argued: October 30, 2007 Decided: February 7, 2008 6 _ 7 MONICA TENESACA DELGADO, a/k/a MONICA PATRICIA TENESACA DELGADO, 8 Petitioner-Appellant, 9 v. 10 MICHAEL B. MUKASEY,1 Attorney General of the United States, 11 12 Respondent-Appellee. 13 _ 14 Before: MINER and POOLER, Circuit Judges.2 15 Appeal from an October 26, 2006 decision by the United States Immigrati..
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06-5035-ag
D elgado v. M ukasey
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term 2007
4 Docket No. 06-5035-ag
5 Argued: October 30, 2007 Decided: February 7, 2008
6 _________________________________________________________________________
7 MONICA TENESACA DELGADO, a/k/a MONICA PATRICIA TENESACA DELGADO,
8 Petitioner-Appellant,
9 v.
10 MICHAEL B. MUKASEY,1 Attorney General of the United States,
11
12 Respondent-Appellee.
13 _________________________________________________________________________
14 Before: MINER and POOLER, Circuit Judges.2
15 Appeal from an October 26, 2006 decision by the United States Immigration & Customs
16 Enforcement (“ICE”) reinstating, in accordance with INA § 241(a)(5), 8 U.S.C. §1231(a)(5), an
17 order of removal against petitioner-appellant, a native and citizen of Ecuador, following
18 determinations that petitioner-appellant was not admissible because she had entered the United
19 States without permission after having been removed, that no waiver is available for such
20 inadmissibility, and that she was ineligible for any exception because ten years had not passed
21 since she departed the United States and she did not seek permission to be admitted before she
22 reentered.
23 Petition for review denied.
1
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States Attorney
2 General Michael B. Mukasey is automatically substituted for former Attorney General Alberto
3 R. Gonzales as respondent-appellee in this case.
2
1 The Honorable Thomas J. Meskill, who was a member of this panel, passed away
2 before oral argument. The appeal is being decided by the remaining two members of the panel,
3 who are in agreement. See 2d Cir. Interim R. 0.14(b).
1
1 MATTHEW L. GUADAGNO (Jules E. Coven,
2 Kerry W. Bretz, on the brief), Bretz & Coven,
3 LLP, New York, NY, for Petitioner.
4 ZOE HELLER (Peter D. Keisler, Assistant
5 Attorney General, Terri J. Scadron, Assistant
6 Director, Joshua Braunstein, on the brief) Office
7 of Immigration Litigation, Civil Division, U.S.
8 Department of Justice, Washington, DC, for
9 Respondent.
10 MINER, Circuit Judge:
11 Petitioner Monica Tenesaca Delgado, a native and citizen of Ecuador, petitions this Court
12 for review of an October 26, 2006 decision by the United States Immigration & Customs
13 Enforcement (“ICE”) reinstating a prior order of removal against her. Earlier on the same date
14 that the ICE issued its decision, the United States Citizenship and Immigration Services (“CIS”)
15 denied Delgado’s application to adjust her status to that of a lawful permanent resident and
16 denied her application for a waiver of her ineligibility for admission to the United States. The
17 CIS found that Delgado was ineligible for adjustment of her status to that of a lawful permanent
18 resident (“adjustment of status”) because she had entered the United States without permission
19 after having been removed. The CIS further found that no waiver was available for such
20 inadmissibility and that Delgado did not meet the requirements, set forth in INA §
21 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii), for the exception because ten years had not passed
22 from the date of Delgado’s last departure from the United States and she did not seek permission
23 for readmission before she reentered. After issuing its decision, the CIS immediately notified the
24 ICE of its decision as well as Delgado’s prior removal. The ICE then issued a decision
25 reinstating the prior order of removal against Delgado because she had entered the United States
26 without permission after having been removed previously. Delgado challenges the decision by
2
1 the ICE.
2 For the reasons that follow, Delgado’s petition for review is denied.
3 BACKGROUND
4 I. Introduction
5 Delgado, a native and citizen of Ecuador, first attempted to enter the United States on
6 May 5, 1999, at Houston International Airport, Houston, TX, by fraudulently presenting herself
7 as a returning resident alien. Delgado displayed a visa belonging to her cousin, who also bore
8 the surname Tenesaca Delgado. Delgado was placed in expedited removal proceedings and was
9 returned to Ecuador on the same day, May 5, 1999. In December 2000, Delgado reentered the
10 United States without inspection. Due to her previous removal and illegal reentry, Delgado is
11 ineligible for admission to the United States (“inadmissible”), as she concedes, pursuant to INA
12 § 212(a)(9)(C)(i)(II), 8 U.S.C. § 1182(a)(9)(C)(i)(II). Section 1182(a)(9)(C)(i)(II) provides that
13 aliens who “enter[] or attempt[] to reenter the United States without being admitted” and have
14 previously been “ordered removed” are inadmissible to the United States.
15 On January 8, 2006, Delgado married a United States citizen. On July 11, 2006, counsel
16 for Delgado filed a visa petition (Form I-130) by Delgado’s husband on Delgado’s behalf.
17 Counsel also filed forms applying for adjustment of status (Forms I-485, I-485A), seeking a
18 waiver for Delgado’s inadmissibility due to her presentation of fraudulent documents on May 5,
19 1999 (Form I-601), and seeking a waiver, pursuant to 8 C.F.R. § 212.2(e), for her inadmissibility
20 due to her reentry without permission after having been removed (Form I-212). On September
21 28, 2006, Delgado’s application for employment authorization (Form I-765) was approved. On
22 October 26, 2006, Delgado appeared at the office of the CIS in New York City, New York for an
3
1 interview with a District Adjudications Officer for the purpose of adjudicating her applications
2 for adjustment of status and for permission to reapply for admission. The CIS denied: (1)
3 Delgado’s application for adjustment of status; (2) her application for a waiver, pursuant to 8
4 C.F.R. § 212.2(e), of her inadmissibility due to her reentry without permission after having been
5 removed; and (3) her application for a waiver of her inadmissibility due to the fraud she
6 committed in her first attempt to enter the United States. The CIS determined that Delgado was
7 inadmissible pursuant to INA § 212(a)(9)(C)(i)(II), 8 U.S.C. § 1182(a)(9)(C)(i)(II) because she
8 had reentered the United States without permission after having been removed, that no waiver is
9 available for such inadmissibility, and that Delgado did not meet the requirements for the
10 exception that would allow her to be admitted. The requirements are that ten years pass from the
11 time of the alien’s latest departure from the United States and that permission to reenter be
12 sought prior to reentry. On that same date, the District Adjudications Officer notified the ICE of
13 its decision as well as Delgado’s prior removal. The ICE then issued a decision reinstating the
14 prior order of removal against Delgado, finding that she was removable as an alien who had
15 reentered illegally after having been removed and that she was therefore subject to reinstatement
16 of the prior order of removal. This timely petition for review followed.
17 Delgado challenges the reinstatement of the prior order of removal on the ground that she
18 applied for adjustment of status with the CIS pursuant to INA § 245(i), 8 U.S.C. § 1255(i), on
19 July 11, 2006, a date preceding the issuance of the reinstatement order. Delgado claims that,
20 having filed for adjustment of status prior to the reinstatement, she is entitled to an adjudication
21 of the merits of her application for adjustment of status. She argues that she is eligible to have
22 her status adjusted to that of a lawful permanent resident pursuant to INA § 245(i), 8 U.S.C. §
4
1 1255(i), which, by its terms, permits adjustment of status for aliens who have “entered the
2 United States without inspection.” INA § 245(i)(1)(A)(i), 8 U.S.C. § 1255(i)(1)(A)(i). Delgado
3 also argues that she is eligible for adjustment of status with a waiver pursuant to 8 C.F.R. §
4 212.2(e), which, according to Delgado, “cures” her inadmissibility. She asserts that she is
5 entitled to such a waiver.
6 DISCUSSION
7 I. Standard of Review
8 This Court reviews a decision by the ICE interpreting the Immigration and Naturalization
9 Act (“INA”) according to the standard set forth in Chevron U.S.A. Inc. v. Natural Res. Def.
10 Council, Inc.:
11 If the intent of Congress is clear, that is the end of the matter; for the court, as
12 well as the agency, must give effect to the unambiguously expressed intent of
13 Congress. If, however, the court determines Congress has not directly addressed
14 the precise question at issue . . . the question for the court is whether the
15 agency’s answer is based on a permissible construction of the statute.
16 467 U.S. 837, 842–43 (1984). We also accord Chevron deference to decisions of the Board of
17 Immigration Appeals (“BIA”) interpreting the immigration statutes, INS v. Aguirre-Aguirre, 526
18 U.S. 415, 424–25 (1999) (holding that decisions of the BIA interpreting the INA are entitled to
19 Chevron deference), and we give “substantial deference” to BIA decisions interpreting
20 immigration regulations, Jigme Wangchuck v. Dep’t of Homeland Sec.,
448 F.3d 524, 528 (2d
21 Cir. 2006).
22 II. Applicable Law
23 A. Immigration Statutes and Regulations
24 1. Adjustment of Status
5
1 Pursuant to INA § 245(a), 8 U.S.C. § 1255(a), an alien “who was inspected and admitted
2 or paroled into the United States” may apply to adjust her immigration status to that of lawful
3 permanent resident if the alien is “admissible” to the United States, among other qualifications.
4 In 1994, Congress enacted a provision permitting aliens who entered without inspection to apply
5 for adjustment of status under certain circumstances without leaving the United States. INA §
6 245(i), 8 U.S.C. § 1255(i); see Act of Aug 26, 1994, Pub. L. No. 103-317, § 506(b), 108 Stat.
7 1765. Section 1255(i) (the “special adjustment of status provision”) provides:
8 (i) Adjustment of status of certain aliens physically present in United States
9 (1) Notwithstanding the provisions of subsections (a) and (c) of this
10 section, an alien physically present in the United States–
11 (A) who—
12 (i) entered the United States without inspection . . .
13 may apply to the Attorney General for the adjustment of his or her status to that of
14 an alien lawfully admitted for permanent residence.
15 In order to be eligible for adjustment of status under that provision, an alien who entered without
16 inspection must: (i) have an immigrant visa “immediately available,” INA § 245(i)(1)(B), 8
17 U.S.C. § 1255(i)(1)(B); and (ii) be otherwise “admissible” to the United States for permanent
18 residence, INA § 245(i)(2)(A), 8 U.S.C. § 1255(i)(2)(A).
19 2. Inadmissible Aliens
20 A separate provision of the INA sets forth categories of aliens, who, “[e]xcept as
21 otherwise provided in” the INA, are “ineligible to be admitted to the United States.” INA §
22 212(a), 8 U.S.C. § 1182(a). Among the categories of aliens deemed inadmissible are those aliens
23 who “enter[] or attempt[] to reenter the United States without being admitted” and who have
24 previously been “ordered removed.” INA § 212(a)(9)(C)(i)(II), 8 U.S.C. § 1182(a)(9)(C)(i)(II).
6
1 Section 1182(a)(9)(C)(i)(II) provides a lifetime bar on admission, subject to a discretionary
2 waiver by the Secretary of Homeland Security permitting an alien to reapply for admission from
3 abroad after at least ten years have elapsed since the alien’s latest departure from the United
4 States. This “consent to reapply” exception provides that:
5 [The permanent bar to admissibility] shall not apply to an alien seeking admission
6 more than 10 years after the date of the alien’s last departure from the United
7 States if, prior to the alien’s reembarkation at a place outside the United States or
8 attempt to be readmitted from a foreign contiguous territory, the Attorney General
9 has consented to the alien’s reapplying for admission.
10 INA § 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).
11 3. Reinstatement Orders
12 INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (the “reinstatement provision”) provides that:
13 If the Attorney General finds that an alien has reentered the United States illegally
14 after having been removed or having departed voluntarily, under an order of
15 removal, the prior order of removal is reinstated from its original date and is not
16 subject to being reopened or reviewed, the alien is not eligible and may not apply
17 for any relief under this chapter, and the alien shall be removed under the prior
18 order at any time after the reentry.
19 4. Waivers of Inadmissibility
20 8 C.F.R. § 212.2(e) provides:
21 Applicant for adjustment of status. An applicant for adjustment of status under
22 section 245 of the Act [8 U.S.C. §1255] . . . must request permission to reapply
23 for entry in conjunction with his or her application for adjustment of status. This
24 request is made by filing an application for permission to reapply, Form I-212,
25 with the district director having jurisdiction over the place where the alien resides.
26 If the application under section 245 of the Act has been initiated, renewed, or is
27 pending in a proceeding before an immigration judge, the district director must
28 refer the Form I-212 to the immigration judge for adjudication.
29 B. Interpretation of Immigration Statutes by BIA and Federal Courts
30 At issue in this case is the relationship between INA § 245(i), 8 U.S.C. § 1255(i),
7
1 permitting discretionary adjustment of status, INA § 212(a)(9)(C)(i)(II), 8 U.S.C. §
2 212(a)(9)(C)(i)(II), providing that previously removed aliens who reenter the country without
3 permission are inadmissible, and INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) providing for
4 reinstatement of prior orders of removal and barring any relief under the INA for those
5 inadmissible pursuant to section 1182(a)(9)(C)(i)(II). Also at issue is the effect, if any, of 8
6 C.F.R. § 212.2(e) on these statutes.
7 1. Whether Delgado May Seek Adjustment of Status Without a Waiver
8 Delgado argues that she is eligible for adjustment of status pursuant to the special
9 adjustment of status provision, notwithstanding the reinstatement provision, because “[b]y its
10 express language” section 1255(i) “is available to” aliens who enter the United States without
11 inspection. See Pet’r’s Br. On Appeal at 8. Delgado argues that the adjustment of status
12 provision “cures” inadmissibility pursuant to § 1182(a)(9)(C)(i)(II).
13 The government’s position is that, although the special adjustment of status provision
14 authorizes aliens who “entered the United States without inspection” to apply for adjustment of
15 status, see INA § 245(i)(1)(A)(i), 8 U.S.C. § 1255(i)(1)(A)(i), such adjustment is limited to
16 aliens who are “admissible to the United States for permanent residence.” Id. § 245(i)(2)(A), 8
17 U.S.C. § 1255(i)(2)(A). According to the government, because Delgado is inadmissible pursuant
18 to INA § 212(a)(9)(c)(i)(II), 8 U.S.C. § 1182(a)(9)(c)(i)(II), she is not eligible for adjustment of
19 status. For the reasons set forth below, we agree with the government that Delgado is not
20 eligible for adjustment of status pursuant to INA § 245(i), 8 U.S.C. § 1255(i).
21 We are not persuaded by Delgado’s reliance on case law holding that the special
22 adjustment of status provision exempts individuals from inadmissibility pursuant to 8 U.S.C. §
8
1 1182(a)(9)(c)(i)(I). See Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. 2005); Acosta v.
2 Gonzales,
439 F.3d 550 (9th Cir. 2006). Section 1182(a)(9)(c)(i)(I) provides that “any alien who
3 has been unlawfully present in the United States for an aggregate period of more than [one]
4 year” is inadmissible. Padilla-Caldera held that the special adjustment of status provision
5 “trumped” inadmissibility pursuant to section 1182(a)(9)(c)(I) for an alien who had re-entered
6 the United States illegally after having departed at the direction of the INS. Padilla-Caldera is
7 distinct from the case at bar, most notably by the fact that the alien in that case did not violate a
8 removal order — he re-entered the country illegally after having been unlawfully present in the
9 United States for more than one year, not after having been removed from the United States, as
10 Delgado was. The Padilla-Caldera court itself noted the distinction, relying on earlier Tenth
11 Circuit precedent holding that where section 1182(a)(9)(C)(i)(II) applies, the reinstatement
12 provision also applies, barring aliens inadmissible under 1182(a)(9)(C)(i)(II) from seeking “any
13 relief” under the immigration
statutes. 453 F.3d at 1243 (explaining that “[t]he imposition of
14 additional punishment for those inadmissible under 1182(a)(9)(C)(i)(II) — namely 1231(a)(5)
15 [the reinstatement provision], which bars this class of aliens from seeking ‘any relief’ — makes
16 1182(a)(9)(C)(i)(II) distinguishable”) (citing Berrum-Garcia v. Comfort,
390 F.3d 1158, 1163
17 (10th Cir. 2004) (alterations added)).3 Acosta is equally unavailing. Acosta relied on Padilla-
3
1 Padilla-Caldera is distinguishable on other grounds as well. In that case the alien,
2 Padilla-Caldera, sought relief under the LIFE Act, which temporarily extended to April 30, 2001
3 permission for illegal entrants to seek adjustment of status from within the United States. The
4 court noted that an important Congressional purpose behind the LIFE Act was “family
5 reunification for illegal entrants and status violators who have otherwise played by the rules.”
6 453 F.3d at 1242 (quoting 146 Cong. Rec. S11263-01 (daily ed. Oct. 27, 2000) (statement of
7 Sen. Hatch)) (emphasis omitted). The court noted that, unlike Padilla-Caldera, aliens
8 inadmissible under 1182(a)(9)(C)(i)(II) have “violate[d] direct court orders,” and have therefore
9 not played by the rules. See
Padilla-Caldera, 453 F.3d at 1243. The court also considered the
9
1 Caldera, which, as discussed, distinguished inadmissibility pursuant to section
2 1182(a)(9)(C)(i)(II) from inadmissibility pursuant to section 1182(a)(9)(C)(i)(I). Acosta also
3 relied on Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 793–95 (9th Cir. 2004),
see 439 F.3d at 554
4 (“Our reasoning in Perez-Gonzalez appears to control the issue now before us.”), which, as set
5 forth in greater detail below, has been overruled by the Ninth Circuit, see Gonzales v. Dep’t of
6 Homeland Sec.,
508 F.3d 1227 (9th Cir. 2007).
7 Delgado concedes that other circuit courts have held that the special adjustment of status
8 provision does not “cure” inadmissability pursuant to § 1182(a)(9)(C)(i)(II), to which the
9 reinstatement provision applies. Although this Court has not yet ruled on this issue, five sister
10 circuits have so held. See Lino v. Gonzales,
467 F.3d 1077, 1079 (7th Cir. 2006) (“[The
11 reinstatement provision] plainly precludes a previously removed alien who has since illegally
12 reentered the United States from adjusting her status under § 245(i).”); De Sandoval v. U.S.
13 Att’y Gen.,
440 F.3d 1276, 1284–85 (11th Cir. 2006);
Berrum-Garcia, 390 F.3d at 1163 (holding
14 that once a petitioner’s prior removal order has been reinstated, he no longer qualifies for any
15 relief under the INA, regardless of whether his application was filed before or after the
16 reinstatement decision was made); Lattab v. Ashcroft,
384 F.3d 8, 21 (1st Cir. 2004) (holding
17 that “[s]ection 241(a)(5) . . . bars aliens who have illegally reentered the United States after
18 having previously been deported from applying for relief”); Warner v. Ashcroft,
381 F.3d 534,
19 540 (6th Cir. 2004) (holding that aliens whose prior orders of removal are reinstated under §
1 fact that Padilla-Caldera “ironically” had departed the United States at the direction of the INS
2 — he departed to apply for a green card after a favorable ruling on a “Petition for Alien
3 Relative” because at the time of such ruling, adjustment of status could only be sought from
4 outside the United States. See
Padilla-Caldera, 453 F.3d at 1239.
10
1 241(a)(5) should not be eligible for relief under § 245(i) because § 241(a)(5) states that aliens
2 who fall under this provision “may not apply for any relief under this chapter”); Flores v.
3 Ashcroft, 354 F.3d 727, 731 (8th Cir. 2003); see also Padilla v. Ashcroft,
334 F.3d 921, 925 (9th
4 Cir. 2003) (holding that an alien who illegally reenters is not eligible for adjustment of status
5 because the reinstatement provision controls).
6 The government further argues that the BIA has interpreted 8 U.S.C. §
7 1182(a)(9)(C)(i)(II) in the same way and that the BIA’s interpretation is entitled to Chevron
8 deference. See
Chevron, 467 U.S. at 842–43;
Aguirre-Aguirre, 526 U.S. at 424–25. In Matter of
9 Torres-Garcia, the BIA dismissed an appeal of an IJ’s ruling that an alien who had reentered
10 illegally after having been removed — and was therefore inadmissible pursuant to §
11 1182(a)(9)(C)(i)(II) — was ineligible for adjustment of status and ineligible for any waiver of
12 that ground of inadmissibility. 23 I. & N. Dec. 866, 867, 877 (B.I.A. 2006). Although Torres-
13 Garcia primarily was concerned with the alien’s lack of eligibility for waivers of inadmissibility,
14 we agree with the government that the BIA’s position is that an alien inadmissible pursuant to §
15 1182(a)(9)(C)(i)(II) is ineligible for adjustment of status pursuant to 8 U.S.C. § 1255(i). We
16 now join our sister circuits in holding that an alien who is ruled inadmissible pursuant to 8
17 U.S.C. § 1182(a)(9)(C)(i)(II), as a result of having reentered this country illegally after having
18 been removed, is ineligible for adjustment of status pursuant to 8 U.S.C. § 1255(i).
19 2. Whether Adjustment of Status is Available Pursuant to Waiver
20 An individual who has reentered the United States illegally after having been removed is
21 permanently inadmissible, see 8 U.S.C. § 1182(a)(9)(C)(i)(II), but such an individual may
22 request permission to reapply for admission pursuant to the consent to reapply provision, as
11
1 described above. See 8 U.S.C. § 1182(a)(9)(C)(ii). Delgado claims that the ten-year waiting
2 period before she may avail herself of the consent to reapply provision is “cured” by 8 C.F.R. §
3 212.2, entitled “Consent to reapply for admission after deportation, removal or departure at
4 Government expense.” The BIA has expressly held, however, that 8 C.F.R. § 212.2 does not
5 operate as a waiver of inadmissibility under 8 U.S.C. § 1182(a)(9), which pertains to “aliens
6 previously removed.” Torres-Garcia held:
7 As the language, structure, and regulatory history of 8 C.F.R. § 212.2 make clear,
8 the regulation was not promulgated to implement current section 212(a)(9) of the
9 Act [8 U.S.C. § 1182(a)(9)]. Instead, it was published in response to significant
10 legislative changes brought about by the Immigration Act of 1990, Pub. L. No.
11 101-649, 104 Stat. 4978 (“IMMACT”).
12 231 I. & N. at 874. Torres-Garcia further provides:
13 [W]hile 8 C.F.R. §§ 212.2(e) and (i)(2) authorize aliens who are unlawfully
14 present in the United States to seek permission to reapply for admission
15 retroactively in conjunction with an application for adjustment of status, the very
16 concept of retroactive permission to reapply for admission, i.e., permission
17 requested after unlawful reentry, contradicts the clear language of section
18 212(a)(9)(C), which in its own right makes unlawful reentry after removal a
19 ground of inadmissibility that can only be waived after the passage of at least 10
20 years.
21 Id. at 874–75. Torres-Garcia explained that the consent to reapply provision “clearly specifies
22 the conditions under which waivers of inadmissibility may be granted. It extends no discretion
23 to the Attorney General or the Secretary of Homeland Security to augment those conditions or to
24 create other less restrictive waivers by regulation.”
Id. at 875. Torres-Garcia explained that
25 waivers for individuals inadmissible pursuant to 8 U.S.C. § 1182 (a)(9)(C)(i)(II) are limited to
26 those “‘seeking admission more than 10 years after the date of the alien’s last departure from the
27 United States.”
Id. (quoting INA § 212(a)(9)(C)(ii), 8 U.S.C.§ 1182(a)(9)(C)(ii)).
28 Delgado relies on Perez-Gonzalez, which held that 8 C.F.R. § 212.2 permitted an alien
12
1 who was present in the United States but inadmissible under 8 U.S.C. § 1182 (a)(9)(C)(i)(II) to
2 seek retroactive permission to reapply for admission in conjunction with an application for
3 adjustment of status under section the special adjustment of status provision. 379 F.3d at
4 793–95. Torres-Garcia, however, expressly rejected Perez-Gonzalez. Torres-Garcia held:
5 With all due respect, we believe the Ninth Circuit’s analysis regarding the
6 availability of a retroactive waiver of the ground of inadmissibility set forth at
7 section 212(a)(9)(C)(i) contradicts the language and purpose of the Act and
8 appears to have proceeded from an understandable, but ultimately incorrect,
9 assumption regarding the applicability of 8 C.F.R. § 212.2.
10 23 I & N. at 873. We decline to adopt the reasoning of Perez-Gonzalez. Moreover, Perez-
11 Gonzalez has been expressly overruled by the Ninth Circuit. See Gonzales,
509 F.3d 1227.
12 Gonzales held that Chevron deference was owed to the agency’s interpretation of the statutes as
13 set forth in Torres-Garcia, even though that interpretation differed from prior Ninth Circuit
14 precedent interpreting the immigration statutes. We agree with the Gonzales court and accord
15 Chevron deference to the BIA’s holding that an applicant who is inadmissible under subsection
16 (a)(9)(C)(i)(II) is ineligible to apply for adjustment of status from within the United States and is
17 bound by the consent to reapply provision, which requires that he seek permission to reapply for
18 admission from outside of the United States after ten years have passed since his most recent
19 departure from the United States.
Id. at 10–11.
20 Delgado argues Torres-Garcia is not controlling because that case ignores a provision in
21 the Violence Against Women and Department of Justice Reauthorization Act of 2005
22 (“VAWA”) that creates a waiver to the bar to admissibility contained in 8 U.S.C. §
23 1182(a)(9)(C)(ii). At the time Torres-Garcia was decided, section 813(b) of VAWA provided
24 that “[t]he Secretary of Homeland Security, the Attorney General, and the Secretary of State
13
1 shall continue to have discretion to consent to an alien’s reapplication for admission after a
2 previous order of removal, deportation, or exclusion.” Pub. L. No. 109-162, 119 Stat. 2960
3 (enacted Jan. 5, 2006). That provision was removed pursuant to an amendment to VAWA made
4 effective August 12, 2006. See 8 U.S.C. § 1229b. Notwithstanding the effective dates of the
5 VAWA provision relied on by Delgado, we find no relevance of that provision to inadmissibility
6 pursuant to section 1182(a)(9)(C)(i)(II). That provision does not mention section
7 1182(a)(9)(C)(i)(II) nor can it be read to apply to that section. Section 813(b)(2) also provides
8 that “it is the sense of Congress that [the Secretary of Homeland Security, the Attorney General,
9 and the Secretary of State] should particularly consider exercising this authority in cases under
10 the Violence Against Women Act of 1994 . . . .” Delgado does not allege that VAWA or the
11 Violence Against Women Act of 1994 applies to her. We must reject Delgado’s argument that
12 the BIA was required to consider a discrete provision of an unrelated statute.
13 3. Effect of Filing for Adjustment of Status Prior to Issuance of Order of
14 Reinstatement
15 Delgado argues that she is entitled to adjudication of her application for adjustment of
16 status because she submitted her application prior to the issuance of the order of reinstatement.
17 Delgado again relies on Perez-Gonzalez, 379 F.3d at 795, which prohibited reinstatement
18 proceedings until after adjudication of petitioner’s application for adjustment. As has been
19 shown, Perez-Gonzalez is unavailing because it has been overruled by Gonzales, which
20 explained:
21 In August 2004, we held that a previously removed alien unlawfully present in the
22 United States was eligible to adjust his status under the special adjustment
23 provision provided that he filed an I-212 waiver application prior to the initiation
24 of reinstatement proceedings, notwithstanding the bar to relief from removal
25 contained in [the] reinstatement provision and inadmissibility provision for
26 previously removed aliens unlawfully present in the United States . . . . We hold
27 today that we are bound by the BIA’s interpretation of the applicable statutes in In
28 re Torres-Garcia, even though that interpretation differs from our prior
29 interpretation in Perez-Gonzalez. Pursuant to In re Torres-Garcia, plaintiffs as a
14
1 matter of law are not eligible to adjust their status because they are ineligible to
2 receive I-212 waivers.
3 508 F.3d at 1231.
4 Finally, Delgado reasons that she has applied for adjustment of status “affirmatively” by
5 submitting her application prior to the issuance of the reinstatement order. She argues that 8
6 U.S.C. § 1231(a)(5), the reinstatement provision, bars only “defensive” applications (i.e.
7 applications submitted in response to a removal order) because the term “relief” “denotes”
8 defensive applications. Delgado has made no showing to support her argument that relief should
9 apply only to “defensive” applications. We believe that the statute itself provides that the bar to
10 relief is prospective and not conditioned upon the issuance of an order reinstating the prior order
11 of removal. The reinstatement provision provides that an alien “ is not eligible and may not
12 apply for” any relief under the INA. See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (emphasis
13 supplied). We stand with the First Circuit in its interpretation of the statute:
14 Section 241(a)(5) [the reinstatement provision] subjects an illegal reentrant to
15 three independent consequences: reinstatement of the prior deportation order,
16 ineligibility for any relief, and removal. Grammatically, section 241(a)(5) does
17 not make ineligibility for relief dependent upon reinstatement of the prior
18 deportation order. And even if it did, section 241(a)(5) expressly makes
19 reinstatement retroactive to the date of the original deportation order.
20
Lattab, 384 F.3d at 16. Moreover, we consider Delgado’s application defensive. At the time she
21 applied for adjustment of status, Delgado had already reentered illegally after having been
22 removed, and accordingly was ineligible for any relief under the immigration statutes. In any
23 event, with the issuance of the reinstatement order, her application ripened into a defensive one
24 and the fact that an application for adjustment of status was on file with the CIS has no effect on
25 the authority of the Attorney General to reinstate her prior order of removal.
26 CONCLUSION
27 For the foregoing reasons, the petition for review is denied.
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