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188
Matter of Caritina DIAZ-Castaneda, Respondent
Matter of Porfirio LOPEZ-Lopez, Respondent
File A078 740 900 – Portland, Oregon
File A078 740 903
Decided January 27, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who is inadmissible under section 212(a)(9)(C)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i) (2006), is ineligible for adjustment of status
under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006). Matter of Briones, 24 I&N Dec.
355 (BIA 2007), reaffirmed.
FOR RESPONDENT: Samuel W. Asbury, Esquire, Gresham, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Thomas L. Day, Deputy Chief
Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated January 10, 2008, an Immigration Judge found the
respondents statutorily ineligible for adjustment of status under section 245(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as aliens
who are inadmissible under section 212(a)(9)(C)(i) of the Act, 8 U.S.C.
§ 1182(a)(9)(C)(i) (2006), but he granted their request for voluntary departure.
The respondents have appealed from the Immigration Judge’s denial
of adjustment of status. The appeal will be dismissed.
We review the findings of fact made by the Immigration Judge, including
findings as to the credibility of testimony, to determine whether they are
“clearly erroneous,” and we review de novo all questions of law, discretion,
and judgment, including whether the parties have met their relevant burden
of proof. 8 C.F.R. §§ 1003.1(d)(3)(i)–(ii) (2010); see also Matter of V-K-,
24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
The respondents, who are natives and citizens of Mexico, first entered the
United States without inspection in 1988. They were in the United StatesCite as 25 I&N Dec. 188 (BIA 2010) Interim Decision #3672
1 Section 212(a)(9)(C) of the Act was enacted by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.
3009-546, which was effective April 1, 1997. Under section 212(a)(9)(C)(i)(I), 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.”
189
unlawfully for more than 1 year after April 1, 1997.1
On October 1, 2000, they
departed the United States, and they reentered unlawfully on November 1,
2000.
The respondents have not meaningfully challenged on appeal the
Immigration Judge’s finding of relevant facts. Nor have they meaningfully
contested that they are inadmissible under section 212(a)(9)(C)(i) of the Act.
Based on these undisputed facts, we conclude that each respondent
is inadmissible under section 212(a)(9)(C)(i)(I) as an alien who has been
unlawfully present in the United States for an aggregate period of more than
1 year and who entered the United States without being admitted.
Because the respondents are inadmissible under section 212(a)(9)(C)(i)(I)
of the Act, the Immigration Judge found that he was bound by Board precedent
to conclude that the respondents are ineligible for adjustment of status under
section 245(i). On appeal, the respondents acknowledge that in Matter
of Briones, 24 I&N Dec. 355 (BIA 2007), we held that adjustment of status
under section 245(i) is not available to an alien who is inadmissible under
section 212(a)(9)(C)(i)(I). The respondents argue, however, that despite this
Board precedent, the Immigration Judge should have applied the preceding
decision of the United States Court of Appeals for the Ninth Circuit in Acosta
v. Gonzales, 439 F.3d 550 (9th Cir. 2006), which held that an alien who
is inadmissible under section 212(a)(9)(C)(i)(I) is eligible to apply for
adjustment of status under section 245(i).
The Ninth Circuit has not yet addressed whether it would accord deference
to the Board’s intervening decision in Matter of Briones under Chevron, USA.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967
(2005) (stating that a court’s prior judicial construction of a statute trumps
an agency construction that is otherwise entitled to Chevron deference if the
prior court decision holds that the construction follows from the unambiguous
terms of the statute and thus leaves no room for agency discretion). However,
both the Second Circuit in Mora v. Mukasey, 550 F.3d 231, 239 (2d Cir. 2008),
and the Sixth Circuit in Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th
Cir. 2008), have since held that because the Board analyzed and interpreted theCite as 25 I&N Dec. 188 (BIA 2010) Interim Decision #3672
190
ambiguous provisions of the immigration laws reasonably in Matter
of Briones, Chevron deference should be accorded to our conclusion that
an alien who is determined to be inadmissible under section 212(a)(9)(C)(i)(I)
is ineligible to adjust status under section 245(i). Furthermore, the Seventh
Circuit recently noted that there was sufficient ambiguity between sections
212(a)(9)(C)(i)(I) and 245(i) to require Chevron deference and that it “would
find that the [Board] has drawn a rational line.” Lemus-Losa v. Holder, 576
F.3d 752, 760 (7th Cir. 2009).
In Acosta v. Gonzales, 439 F.3d 550, the Ninth Circuit stated that it was
constrained by its prior decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783
(9th Cir. 2004), which held that adjustment of status under section 245(i) of the
Act remained available for aliens who are inadmissible under section
212(a)(9)(C)(i)(II). However, in Gonzales v. Department of Homeland
Security, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit subsequently
overruled Perez-Gonzalez after granting Chevron deference to the Board’s
decision in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), which had
rejected the Ninth Circuit’s analysis in Perez-Gonzalez. In so doing, the Ninth
Circuit recognized that Perez-Gonzalez was premised on the “existence
of ambiguity in the interplay between the inadmissibility and adjustment
of status provisions” and that the Board’s interpretation of these ambiguous
statutes in Matter of Torres-Garcia was reasonable. Gonzales v. Dep’t
of Homeland Sec., 508 F.3d at 1238, 1242. The Second Circuit took note
of these developments to conclude that Gonzales substantially undermined
Acosta. See Mora v. Mukasey, 550 F.3d at 237.
In Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009), the Ninth
Circuit found that neither Brand X nor Gonzales suggests that although
agencies do retain discretion to determine ambiguous statutes, an agency may
repeatedly put forward an interpretation that a circuit court has already
examined under Chevron and found to be unreasonable. However, the instant
case can be distinguished from Mercado-Zazueta because the Ninth Circuit has
already determined that the Board’s interpretation of similar statutes was
reasonable.
We agree with the Immigration Judge that the respondents, as aliens who
are inadmissible under section 212(a)(9)(C)(i)(I) of the Act, are ineligible for
adjustment of status under section 245(i). Neither the Immigration Judge nor
the Board remains bound by the Ninth Circuit’s decision in Acosta in light
of our subsequently issued decision in Matter of Briones and the Ninth
Circuit’s decision in Gonzales to overrule Perez-Gonzalez. See Matter
of Silva-Trevino, 24 I&N Dec. 687, 696 (A.G. 2008) (noting that
administrative agencies are not bound by prior judicial interpretationsCite as 25 I&N Dec. 188 (BIA 2010) Interim Decision #3672
191
of ambiguous statutory provisions); see also Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967. The analysis of Matter of Briones
is therefore applicable, and the Immigration Judge properly found the
respondents ineligible for adjustment of status under section 245(i) of the Act.
Accordingly, the respondents’ appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondents are permitted to voluntarily depart the
United States, without expense to the Government, within 60 days from the
date of this order or any extension beyond that time as may be granted by the
Department of Homeland Security (“DHS”). See section 240B(b) of the
Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2006); see also
8 C.F.R. §§ 1240.26(c), (f) (2010). In the event the respondents fail
to voluntarily depart the United States, the respondents shall be removed
as provided in the Immigration Judge’s order.
NOTICE: If the respondents fail to voluntarily depart the United States
within the time period specified, or any extensions granted by the DHS, the
respondents shall be subject to a civil penalty as provided by the regulations
and the statute and shall be ineligible for a period of 10 years for any further
relief under section 240B and sections 240A, 245, 248, and 249 of the Act,
8 U.S.C. § 1229b, 1255, 1258, and 1259 (2006). See section 240B(d) of the
Act.
WARNING: If the respondents file a motion to reopen or reconsider prior
to the expiration of the voluntary departure period set forth above, the grant
of voluntary departure is automatically terminated; the period allowed for
voluntary departure is not stayed, tolled, or extended. If the grant of voluntary
departure is automatically terminated upon the filing of a motion, the
penalties for failure to depart under section 240B(d) of the Act shall not
apply. See Voluntary Departure: Effect of a Motion To Reopen or Reconsider
or a Petition for Review, 73 Fed. Reg. 76,927, 937-38 (Dec. 18, 2008)
(codified at 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1) (2010)).
WARNING: If, prior to departing the United States, the respondents file
any judicial challenge to this administratively final order, such as a petition for
review pursuant to section 242 of the Act, 8 U.S.C. § 1252 (2006), the grant
of voluntary departure is automatically terminated, and the alternate order
of removal shall immediately take effect. However, if the respondents file
a petition for review and then depart the United States within 30 days of such
filing, the respondents will not be deemed to have departed under an order
of removal if they provide to the DHS such evidence of their departure that the
Immigration and Customs Enforcement Field Office Director of the DHS mayCite as 25 I&N Dec. 188 (BIA 2010) Interim Decision #3672
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require and provide evidence the DHS deems sufficient that they have
remained outside of the United States. The penalties for failure to depart under
section 240B(d) of the Act shall not apply to an alien who files a petition for
review, notwithstanding any period of time that he or she remains in the
United States while the petition for review is pending. See 73 Fed. Reg. at
76,938 (codified at 8 C.F.R. § 1240.26(i)).