Casillas-Casillas v. Lynch ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSE GUADALUPE CASILLAS-
CASILLAS, a/k/a Jose Casillas-Guadalupe,
a/k/a Roman Saprisa,
Petitioner,
v. No. 14-9611
(Petition for Review)
LORETTA LYNCH, United States
Attorney General,
Respondent.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
_________________________________
Jose Guadalupe Casillas-Casillas, a native and citizen of Mexico, seeks review
of a Board of Immigration Appeals’ (BIA) decision concluding that he is ineligible
for adjustment of status and refusing to reinstate his period of voluntary departure.
For the reasons that follow, we deny the petition in part and dismiss it in part for lack
of jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.
Mr. Casillas-Casillas is a Mexican national who has spent the majority of his
life in the United States illegally. He first came to this country when he was three
and voluntarily departed at the age of fifteen. He twice more attempted to reenter at
the age of sixteen but was apprehended both times by U.S. border patrol and was
allowed to voluntarily return to Mexico. Most recently, he illegally reentered the
United States at the age of seventeen. Two years later, he encountered immigration
officials at a jail in Denver, Colorado.
The government subsequently charged Mr. Casillas-Casillas with being
unlawfully present in the United States without having been admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i). He conceded the charge but applied for adjustment of
status. See id. § 1255(i). An immigration judge (IJ) held a hearing but denied the
application, ruling that Mr. Casillas-Casillas was ineligible for relief because he had
been unlawfully present in the U.S. for an aggregate period of more than one year
and had subsequently reentered without proper admission. See id.
§ 1182(a)(9)(C)(i)(I). Mr. Casillas-Casillas argued that his unlawful presence should
be excused because he was a minor at all relevant times, see id.
§ 1182(a)(9)(B)(iii)(I), but the IJ rejected his argument, pretermitted the application,
and granted voluntary departure.
The BIA adopted the IJ’s decision, explaining that Mr. Casillas-Casillas was
ineligible for adjustment of status under § 1182(a)(9)(C)(i)(I) and the statutory
exception for minors that he invoked, § 1182(a)(9)(B)(iii)(I), did not extend to aliens
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like him who are unlawfully present in the United States after previous immigration
violations. Consequently, the BIA ordered Mr. Casillas-Casillas removed to Mexico
and refused to reinstate his period of voluntary departure because he failed to pay his
departure bond.
II.
Now in his petition for review, Mr. Casillas-Casillas challenges the BIA’s
legal conclusion that he was ineligible for adjustment of status because he was
inadmissible under § 1182(a)(9)(C)(i)(I). That provision, which is entitled, “Aliens
unlawfully present after previous immigration violations,” states that “[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.” Id. § 1182(a)(9)(C)(i)(I). Mr. Casillas-Casillas does not
dispute that he satisfies these criteria. We have held that § 1182(a)(9)(C)(i)(I)
applies to recidivist immigration violators who are ineligible for adjustment of status.
See Padilla-Caldera v. Holder, 637 F.3d 1140, 1150-52 (10th Cir. 2011). Therefore,
unless Mr. Casillas-Casillas falls under an exception to § 1182(a)(9)(C)(i)(I), the BIA
correctly determined that he is ineligible for adjustment of status.
Mr. Casillas-Casillas insists he falls under an exception for minors contained
in a preceding statutory subsection, § 1182(a)(9)(B)(iii)(I), which is entitled, “Aliens
unlawfully present.” But as the BIA recognized, this provision is inapplicable by its
own terms. See Padilla-Caldera, 637 F.3d at 1147 (“If the intent of Congress is
clear, that is the end of the matter[.]”). The text of § 1182(a)(9)(B) states:
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(B) Aliens unlawfully present
(i) In general
Any alien (other than an alien lawfully admitted for permanent
residence) who—
(I) was unlawfully present in the United States for a period of
more than 180 days but less than 1 year, voluntarily departed
the United States . . . , and again seeks admission within 3
years of the date of such alien’s departure or removal or
(II) has been unlawfully present in the United States for one
year or more, and who again seeks admission within 10 years
of the date of such alien’s departure or removal from the
United States,
is inadmissible.
(ii) Construction of unlawful presence
For purposes of this paragraph, an alien is deemed to be
unlawfully present in the United States if the alien is present in
the United States after the expiration of the period of stay
authorized by the Attorney General or is present in the United
States without being admitted or paroled.
(iii) Exceptions
(I) Minors
No period of time in which an alien is under 18 years of age
shall be taken into account in determining the period of
unlawful presence in the United States under clause (i).
8 U.S.C. § 1182(a)(9)(B)(iii)(I) (emphasis added).
As the emphasized text makes clear, the exception for minors in
§ 1182(a)(9)(B)(iii)(I) applies only to calculating the period of unlawful presence
“under clause (i)”—that is, § 1182(a)(9)(B)(i). Moreover, the definition of “unlawful
presence” under § 1182(a)(9)(B)(ii) is limited to the class of aliens described in “this
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paragraph”—that is, § 1182(a)(9)(B). But nothing in the text of the statute suggests
the exception for minors extends to aliens unlawfully present under
§ 1182(a)(9)(C)(i)(I). Thus, as the BIA observed, this clear and unambiguous
language demonstrates that the exception for minors contained in
§ 1182(a)(9)(B)(iii)(I) applies to only paragraph (B) and not to paragraph (C).
Indeed, the BIA recognized that the different subsections reflect Congress’s
intent to provide exceptions under certain circumstances to aliens who are unlawfully
present in the United States, without extending those same exceptions to other aliens
who are unlawfully present after committing previous immigration violations. In
Berrum-Garcia v. Comfort, we observed that § 1182(a)(9)(B) applies to “first-time
illegal aliens who are unlawfully in the United States without having been previously
ordered removed or departed,” while § 1182(a)(9)(C) applies to permanently
inadmissible aliens who “illegally reentered after previously being formally
removed.” 390 F.3d 1158, 1167 (10th Cir. 2004). This latter class of recidivist
immigration violators “not only entered the country without inspection, but then,
after staying for a least a year, left the country and thereafter reentered or attempted
to reenter illegally.” Padilla-Caldera, 637 F.3d at 1150; see In re Briones, 24 I. & N.
Dec. 355, 365-66 (BIA 2007) (same). Mr. Casillas-Casillas falls into this latter class
of recidivist immigration violators covered by § 1182(a)(9)(C) and may not,
therefore, avail himself of a statutory exception that by its plain terms does not apply
to him. Consequently, the BIA correctly determined he was ineligible for adjustment
of status.
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Apart from this primary issue, Mr. Casillas-Casillas summarily asserts the BIA
refused to reinstate voluntary departure. But we lack jurisdiction to consider this
argument, which does not present a constitutional or statutory claim. See Kechkar v.
Gonzales, 500 F.3d 1080, 1083 (10th Cir. 2007).
Accordingly, we deny in part the petition for review and dismiss it in part for
lack of jurisdiction.
Entered for the Court
John C. Porfilio
Circuit Judge
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