In the

United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 07-2183

M ARGARITA DEL R OCIO B ORREGO ,
                                                      Petitioner,
                              v.

M ICHAEL B. M UKASEY, Attorney General
of the United States,
                                                     Respondent.
                       ____________
               Petition for Review of the Decision
              of the Board of Immigration Appeals.
                         No. A76-285-589
                       ____________

      A RGUED JUNE 6, 2008—D ECIDED A UGUST 25, 2008
                       ____________



 Before M ANION, B AUER, and R IPPLE, Circuit Judges.
  M ANION, Circuit Judge. Margarita del Rocio Borrego,
using the alias Rosa Maciel-Curiel, falsely claimed to be
a United States citizen in an attempt to gain entry into
the United States in 1997. Borrego’s attempt was foiled,
and she was barred from entering the United States for a
period of five years. Nevertheless, less than four years
later Borrego obtained a B-2 visa under her real name and
2                                                   No. 07-2183

returned to the United States. Borrego was later discovered
and ordered removed again. Borrego petitions this court
for review of the Board of Immigration Appeals decision
affirming the latter order of removal. We deny her peti-
tion for review.


                               I.
   Borrego is a citizen of Mexico. On July 25, 1997, at the
Paso del Norte Port of Entry in El Paso, Texas, Borrego
attempted to enter the United States by using the alias
Rosa Maciel-Curiel and claiming to be a United States
citizen. During an interview with an agent of the Immigra-
tion and Naturalization Service (“INS”),1 which was
conducted in Spanish, Borrego admitted that she was not
a United States citizen and that she knew it was illegal to
falsely claim United States citizenship. But Borrego con-
tinued to maintain that she was Rosa Maciel-Curiel; she
swore under oath that her “true and correct name” was
Rosa Maciel-Curiel.
  Borrego’s fingerprints were taken, and she was then
ordered removed. In a document bearing her signature
(albeit under the alias Rosa Maciel-Curiel), Borrego
was informed that she had been found inadmissible
pursuant to § 212(a) of the Immigration and Nationality



1
  On March 1, 2003, the INS ceased to exist as an independent
agency and the Department of Homeland Security assumed its
functions. For the sake of clarity, though, we will refer only to
the INS in this opinion.
No. 07-2183                                                   3

Act (“INA”), 8 U.S.C. § 1182(a); that she was “prohibited
from entering, attempting to enter, or being in the United
States for a period of 5 years from the date of [her] depar-
ture from the United States”; and that if she wanted to
return to the United States before the five-year ban was up,
she had to “request and obtain permission from the
Attorney General to reapply for admission into the United
States . . . prior to commencing [her] travel.” In addition,
Borrego was personally served with a notice and order
of expedited removal, which stated that she was inad-
missible under § 212(a)(6)(C)(ii) of the INA, 8 U.S.C.
§ 1182(a)(6)(C)(ii), because she “falsely represented [her-
self] to be a citizen of the United States . . . for the purpose
of gaining entry into the United States.” After receiving
that notice, she was removed from the country.
  Despite the five-year ban, in January 2001 Borrego
applied for a B-2 visa to enter the United States under her
own name, Margarita del Rocio Rodelo Reynoso. During
the application process, Borrego never informed the
United States Consulate in Mexico of the five-year ban
on admission. Nor did she seek permission from the
Attorney General to reapply for admission. On her visa
application (which was in Spanish), Borrego responded
“no” to the question asking whether she had ever at-
tempted to enter the United States by means of fraud or
false statements. She also answered “no” to another
question asking if she had been deported from the
United States within the last five years. Thus unaware
of her prior history, the consulate issued Borrego a visa
on January 2, 2001, and, shortly thereafter, Borrego used
the visa for admission into the country.
4                                                No. 07-2183

   While in the United States, Borrego married Fernando
Borrego, an American citizen. Her husband proceeded to
file an application for an adjustment of status on her
behalf in May 2003. That application was denied
when the INS found out from an FBI fingerprint compari-
son that Borrego’s fingerprints matched those of
Maciel-Curiel. Borrego was then placed in removal pro-
ceedings. The INS alleged that Borrego was subject to
removal pursuant to § 237(a)(1)(A) of the INA, 8 U.S.C.
§ 1227(a)(1)(A), as an alien who (1) sought to procure
admission into the United States by false and fraudulent
pretenses; (2) sought admission within five years of the
date of a previous removal without obtaining prior
consent to reapply for admission from the Attorney
General; and (3) falsely represented herself as a United
States citizen. The INS also alleged that Borrego was
removable under § 237(a)(1)(A) because she had over-
stayed her visa.
  In proceedings before an immigration judge (“IJ”),
Borrego challenged the 1997 order of removal. She
also sought permission to reapply for admission retroac-
tively under § 212(a)(9)(A)(iii) of the INA, 8 U.S.C.
§ 1182(a)(9)(A)(iii). In a June 2005 ruling, the IJ first con-
cluded that she lacked jurisdiction to consider Borrego’s
challenges to the 1997 order of removal because, among
other reasons, § 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5),
states that a “prior order of removal . . . is not subject to
being reopened or reviewed.” Next, the IJ determined
that Borrego was removable as charged, finding neither
credible nor plausible her assertions that she never
falsely claimed United States citizenship and that she
No. 07-2183                                               5

procured her B-2 visa innocently without intending to
conceal her prior encounter with the INS. Finally, the IJ
held that Borrego was not eligible for either a waiver of
inadmissibility or an adjustment of status, and ordered
her removed to Mexico.
  Borrego appealed the decision of the IJ to the Board of
Immigration Appeals. The Board found that the IJ
correctly determined that Borrego was inadmissible
because she had falsely claimed United States citizenship
during her attempted entry in 1997. The Board then held
that the IJ properly found that Borrego had failed to
establish eligibility for an adjustment of status, since to
obtain that relief an alien must be admissible. See 8 U.S.C.
§ 1255(a). The Board also disposed of Borrego’s claim that
she was eligible for a waiver of inadmissibility under
§ 212(d)(3) of the INA, 8 U.S.C. § 1182(d)(3), stating that
such a waiver cannot be granted retroactively in removal
proceedings pursuant to Matter of Fueyo, 20 I&N Dec. 84
(BIA 1989). The BIA dismissed Borrego’s appeal, and
she has filed a petition for review in this court.


                            II.
  The sole issue Borrego presents in her petition for
review is whether a waiver pursuant to § 212(d)(3)(A)(ii) of
the INA may be granted retroactively. She argues that it
can, and that the Board erred in concluding otherwise. If
such a waiver can be granted retroactively, then Borrego
would be able to seek an adjustment of status.
 Borrego’s argument that she is eligible for a retroactive
waiver turns on an interpretation of § 212(d)(3)(A)(ii) of
6                                                    No. 07-2183

the INA. We review de novo questions of law regarding
the interpretation of the INA, giving deference to the
Board’s reasonable interpretation of that Act. Negrete-
Rodriguez v. Mukasey, 

, 501 (7th Cir. 2008). In
addition, where the Board “affirms, adopts, and supple-
ments” the IJ’s decision, we review both the IJ’s decision
and any additional reasoning of the Board. Mema v.
Gonzales, 

, 416 (7th Cir. 2007).
    Section 212(d)(3)(A)(ii) states:
      Except as provided in this subsection, an alien . . . who
      is inadmissible under subsection (a) of this section
      (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),
      (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of
      such subsection), but who is in possession of appropri-
      ate documents or is granted a waiver thereof and is
      seeking admission, may be admitted into the United
      States temporarily as a nonimmigrant in the discre-
      tion of the Attorney General. The Attorney General
      shall prescribe conditions, including exaction of such
      bonds as may be necessary, to control and regulate
      the admission and return of inadmissible aliens ap-
      plying for temporary admission under this paragraph.
8 U.S.C. § 1182(d)(3)(A)(ii). In this case, the Board relied on
its previous interpretation in Fueyo, wherein the Board
determined that the above-quoted language foreclosed the
granting of retroactive relief. 20 I&N Dec. at 86-87. Ac-
cording to the Board in Fueyo, the text of § 212(d)(3)(A)(ii)
of the INA does not contemplate a waiver application by
someone who has already gained admission to the
United States. See 

(“By its very nature, the relief
No. 07-2183                                                   7

sought can only confer advance permission for a future
entry, and the statute and regulations make no provision
for this waiver to be granted retroactively.”).
  That is an entirely sensible interpretation of
§ 212(d)(3)(A)(ii). The statute speaks in terms of a waiver
applicant who is “seeking admission,” not one who is
already admitted. Furthermore, the statute’s last sen-
tence giving the Attorney General the power to set condi-
tions on admission for those applying for entry demon-
strates that the statute’s drafters had in mind a waiver
applicant who is not yet admitted. Under the clear lan-
guage of § 212(d)(3)(A)(ii), then, Borrego was not eligible
for a waiver because she had already obtained admission.
  Our recent holding in Atunnise v. Mukasey, 

(7th Cir. 2008), which Borrego has called to our attention
as supplemental authority, does not suggest a different
result. Rather, that decision underscores the distinction
between a waiver applicant who is already admitted, and
one who is “seeking admission” but has not yet gained
entry to the country. Atunnise, the petitioner in that case,
was detained upon arriving at O’Hare airport. She had
failed to alert the United States Consulate in Nigeria to
her inadmissible status due to an ambiguity in the visa
application form. 2 The government cited Fueyo and argued


2
  Atunnise applied for a K-3 visa. The application form for that
visa asked the following question:
    Have you ever been refused admission to the U.S., or been
    the subject of a deportation hearing, or sought to obtain or
    assist others to obtain a visa, entry into the U.S., or any
                                                  (continued...)
8                                                    No. 07-2183

that Atunnise was not eligible for a waiver because she did
not apply at the consulate in Nigeria. We rejected that
argument and distinguished Fueyo on the grounds
that the petitioner had not yet been admitted into the
country—the same distinction that is dispositive in this
case. Indeed, we specifically stated that Atunnise was “not
proposing a retroactive grant because by virtue of her
detention she has not yet entered the United States. She
has been held in limbo at the border for almost two
years and is still seeking entry.” 

  In contrast to Atunnise, Borrego is in the country. See
Zadvydas v. Davis, 

, 693 (2001) (“The distinction
between an alien who has effected an entry into the
United States and one who has never entered runs
throughout immigration law.”). She was admitted pursu-
ant to a B-2 visa. As the IJ noted, the visa was issued only
because the consulate did not know about Borrego’s
inadmissible status. And the reason the consulate did


2
    (...continued)
       other U.S. immigration benefit by fraud or willful misrepre-
       sentation or other unlawful means? Have you attended a
       U.S. public elementary school on student (F) status or a
       public secondary school after November 30, 1996 without
       reimbursing the school?
Only a “yes” or “no” answer to that question was allowed, and
no space was given for an applicant to explain her answer.
Although Atunnise had been subjected to expedited removal
after attempting to enter the United States with a fraudulent
passport, she had never attended a public school in the United
States. Atunnise answered “no.” 

.
No. 07-2183                                               9

not know was because Borrego had used a false name
during her attempted entry in 1997.
  That the consulate in Mexico did not know about
Borrego’s previous attempted entry under a false name
highlights another important distinction between this
case and Atunnise. In Atunnise, the onus was on the INS
because of the ambiguity in its form. 

(“[T]he government prevented the consular officer in
Lagos from discovering that Atunnise needed a waiver
because it used an incoherent form to determine her
admissibility and then apparently took no steps to cross-
check her information through any database.”). Here, the
burden was reversed: only Borrego knew that she was
both Margarita del Rocio Rodelo Reynoso and Rosa
Maciel-Curiel. At two different points Borrego had an
opportunity to reveal that information and put the ball
in the government’s court: first during her 1997 interview
with the INS, and later when filling out her visa applica-
tion.
  But Borrego let those opportunities go. She chose to
falsely maintain under oath during her 1997 interview that
her “true and correct name” was Rosa Maciel-Curiel.
She also chose to continue her deception on her visa
application, responding “no” to the question asking
whether she had ever attempted to enter the United States
by means of fraud or false statements and to another
question asking if she had been deported from the
United States within the last five years. Those choices were
hers to make. However, we do not possess such liberty of
choice. Rather, we are bound by the Board’s reasonable
10                                           No. 07-2183

interpretation of § 212(d)(3)(A)(ii) of the INA and must
enforce the consequences of Borrego’s failure to disclose
her inadmissibility and seek a waiver at the proper time.


                           III.
  Because the plain text of § 212(d)(3)(A)(ii) of the INA
speaks only in terms of those seeking admission, the
Board did not err in concluding that it cannot operate to
waive inadmissibility once an alien is already admitted.
We D ENY Borrego’s petition for review.




                         8-25-08