Miguel Losa v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3942
M IGUEL L EMUS-L OSA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review of a Final Order of the
Board of Immigration Appeals.
No. A 98 724 586
A RGUED D ECEMBER 9, 2008—D ECIDED A UGUST 13, 2009
Before F LAUM, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Miguel Lemus-Losa is a 34-year-old
native and citizen of Mexico who is fighting removal
charges. He entered the United States without inspec-
tion in 1998 or 1999 and remained for about two years
before returning to Mexico. In 2003, Lemus-Losa again
entered the United States without inspection and has
been here ever since. When the Department of Homeland
2 No. 07-3942
Security (“DHS”) caught up with him, it filed charges
seeking his removal. By then, Lemus-Losa’s father (a
permanent resident) had filed a petition for adjustment
of status to permanent resident on behalf of Lemus-Losa,
and the petition had been approved. Unfortunately for
Lemus-Losa, these petitions represent only one step
along the road toward adjusted status. The critical final
requirement is a current “priority date.” As of the time
Lemus-Losa was placed in removal proceedings, his
priority date had not yet come up. In plain English, that
meant that Lemus-Losa was not yet eligible to complete
the process of adjusting his status.
The Immigration Judge (“IJ”) initially granted Lemus-
Losa a continuance to see whether his priority date would
become current in the reasonably foreseeable future, but
eventually the IJ concluded that even if that happened,
Lemus-Losa was statutorily ineligible for permanent
residence because he had accumulated more than a year
of unlawful presence. Immigration and Nationality Act
(“INA”) § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II).
The IJ also held that 8 U.S.C. § 1255(i)—the so-called “LIFE
Act,” which allows aliens illegally in the United States to
adjust their status—did not change the fact of Lemus-
Losa’s inadmissibility because Lemus-Losa was otherwise
inadmissible under § 1182(a)(9)(B)(i)(II). The Board of
Immigration Appeals (“Board” or “BIA”) agreed
with the IJ. Because we conclude that the Board did not
adequately take into account the difference between
§ 1182(a)(9)(B)(i)(II) and 8 U.S.C. § 1182(a)(9)(C)(i)(I), we
grant Lemus-Losa’s petition for review and remand
the case for further proceedings.
No. 07-3942 3
I
Lemus-Losa was born in Mexico and lived there for
most of his early life. In March 1992, when Lemus-Losa
was 20 years old, Lemus-Losa’s father became a lawful
permanent resident of the United States and immediately
filed a Form I-130, Petition for Alien Relative, for his
children. The petition was approved on June 16, 1992; this
gave Lemus-Losa a priority date of March 30, 1992.
(The priority date determines the order in which the
responsible agency—now DHS—assigns actual visas.)
For reasons not apparent from the record, in 1998 or 1999,
Lemus-Losa entered the United States without inspec-
tion. He stayed in the country unlawfully for approxi-
mately two years before returning to Mexico. In 2003,
Lemus-Losa again entered the United States without
inspection and has remained here since that time.
On March 14, 2005, DHS placed Lemus-Losa in removal
proceedings, charging him under 8 U.S.C. § 1182(a)(6)(A)(i)
with removability as an alien present without admission
or parole. Lemus-Losa responded on September 29, 2005,
with an Application to Register Permanent Residence or
Adjust Status (Form I-485), which he filed with the Im-
migration Court. In his application, he asserted that he
was eligible to adjust his status pursuant to the LIFE Act,
§ 1255(i), notwithstanding his unlawful entry, based on
his approved visa petition. At a master calendar hearing
on October 19, 2005, the IJ granted Lemus-Losa a two-
month continuance, in the expectation that Lemus-Losa’s
priority date might be reached. (As of October 2005, DHS
was issuing visas for aliens from Mexico in Lemus-Losa’s
4 No. 07-3942
preference category with priority dates earlier than
March 15, 1992; it later lost ground and was handling
applicants with priority dates before January 15, 1992.)
At the same time that he granted the continuance, the
IJ warned Lemus-Losa that he might be inadmissible
anyway. The IJ pointed out that under § 1182(a)(9)(B)(i)(II),
an alien is inadmissible if he
has been unlawfully present in the United States for
one year or more, and . . . again seeks admission
within 10 years of the date of such alien’s departure
or removal from the United States.
(Emphasis added.) Lemus-Losa, the judge thought, might
fit that bill. The IJ concluded that Lemus-Losa’s inad-
missibility would be addressed at the next hearing and
invited him to seek a hardship waiver pursuant to 8 U.S.C.
§ 1182(a)(9)(B)(v).
At the December 16, 2005, hearing, Lemus-Losa re-
quested another continuance because the visa numbers in
his preference category still had not become current; in
fact, as we noted earlier, they had retrogressed. Lemus-
Losa did not offer any argument or evidence in support
of a hardship waiver. The IJ refused to grant another
continuance. This time, the judge squarely decided that
even if a visa were immediately available to Lemus-Losa,
he was inadmissible under the terms of § 1182(a)(9)(B)(i)(II)
(which we abbreviate as § (B)(i)(II) from here on).
Lemus-Losa appealed to the BIA. The Board gave Lemus-
Losa’s case its full attention, admitting supplemental
briefs and hearing oral argument. In a published,
precedential opinion, it dismissed his appeal. See In re
No. 07-3942 5
Miguel Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (cited as
Lemus-Losa (BIA) below). The BIA began with the
question whether, as a threshold matter, § (B)(i)(II) ren-
dered Lemus-Losa inadmissible. The BIA rejected Lemus-
Losa’s argument that this section was inapplicable to
him. Lemus-Losa had contended that the term “departure”
in the section, which we have emphasized above,
referred only to a departure accomplished through
some kind of legal process, such as a grant of voluntary
departure or permission to depart under threat of
removal. Lemus-Losa had also argued that the heading
of subsection (9), “Aliens previously removed,” indicates
that its provisions apply only to aliens who have been
formally removed from the United States through some
kind of removal proceeding, not to aliens who have left
the country of their own volition.
The BIA was not persuaded. It held that the term
“departure” in § (B)(i)(II) applied to Lemus-Losa because,
in its view, the plain language of the term encompasses
“any ‘departure’ from the United States, regardless of
whether it is a voluntary departure in lieu of removal or
under threat of removal, or it is a departure that is made
wholly outside the context of a removal proceeding.”
Lemus-Losa (BIA) at 376-77. The BIA also held that the
heading to subsection (9) did not limit its meaning. Even
though, as the Board conceded, some provisions of
§ 1182(a)(9) “do explicitly refer to previously removed
aliens,” the Board observed that it is “well settled that
the heading of a section cannot limit the plain meaning
of the text, and it is of use only when it sheds light on
some ambiguous word or phrase.” Lemus-Losa (BIA) at 376.
6 No. 07-3942
Because it found the meaning of § (B)(i)(II) to be clear,
the Board concluded that the section heading did not
modify or otherwise explain it.
The Board then turned to what it had identified as the
“principal issue” in Lemus-Losa’s case: “whether an alien
who is inadmissible to the United States under [§ (B)(i)(II)]
may obtain adjustment of status under [the LIFE Act,
§ 1255(i)].” Lemus-Losa (BIA) at 375. It turned for guidance
to its precedential opinion in In re Briones, 24 I. & N. Dec.
355 (BIA 2007). In Briones, the Board held that aliens
inadmissible under a different part of the statute,
§ 1182(a)(9)(C)(i)(I), which covers “[a]liens unlaw-
fully present after previous immigration violations,” are
ineligible for adjustment of status under § 1255(i). See 24
I. & N. Dec. at 370-71. (For the sake of readability, we
abbreviate § 1182(a)(9)(C)(i)(I) as § (C)(i)(I) from here
on.) Even though Lemus-Losa’s case involved § (B)(i)(II),
the Board found no reason to come to a different con-
clusion. It saw no distinction between aliens (such
as Briones) who were inadmissible under § (C)(i)(I) “for
making or attempting to make an illegal reentry into
the United States following a prior period of more than
1 year of unlawful presence,” and aliens (such as Lemus-
Losa) who were inadmissible under § (B)(i)(II) because
they had “accrued more than 1 year of unlawful
presence, illegally reentered the country, and then
sought admission through adjustment of status within
the United States.” Lemus-Losa (BIA) at 378. The Board
concluded that the plain language of § 1255(i)(2)(A)
“unambiguously requires an applicant for adjustment of
status to prove that he is ‘admissible to the United States
No. 07-3942 7
for permanent residence,’ ” and that aliens inadmissible
under § (B)(i)(II) “necessarily fail to meet that requirement,
absent an available waiver.” Id. Further, the Board reaf-
firmed its statement in Briones that “in every case where
Congress has extended eligibility for adjustment of status
to inadmissible aliens, it has done so unambiguously,” that
is, by express waiver. Id.
The Board rejected the possibility that its conclusion
that aliens inadmissible under § (B)(i)(II) are ineligible
for adjustment of status under § 1255(i) might lead to
absurd consequences. This was a risk, it admitted, if aliens
generally inadmissible under § 1182(a)(6)(A)(I) (i.e., aliens
who have entered without inspection) were held to be
ineligible under § 1255(i); such a holding would effec-
tively eliminate the entire adjustment of status option.
But, the Board thought, § 1182(a)(6)(A)(I) is not coex-
tensive with either § (B)(i)(II) or § (C)(i)(I) (at issue re-
spectively in Lemus-Losa’s case and Briones’s case).
Unlike the latter two provisions, § 1182(a)(6)(A)(I) is not
punitive in nature. It does not seek to punish persons
who enter the United States without inspection. In con-
trast, the Board reasoned, § (B)(i)(II) is intended to
punish aliens who seek admission after having pre-
viously accrued a period of unlawful presence. The
Board concluded that this interpretation of § (B)(i)(II)
was consistent with the purpose of § 1182(a)(9) as a
whole; that purpose, it said, was “ ‘to compound the
adverse consequences of immigration violations by
making it more difficult for individuals who have left
the United States after committing such violations to be
lawfully admitted thereafter’ . . . .” Lemus-Losa (BIA) at 379
8 No. 07-3942
(quoting In re Rodarte-Roman, 23 I. & N. Dec. 905, 909 (BIA
2006)).
II
Lemus-Losa’s petition for review raises two issues: first,
whether the Board erred in its determination that
§ (B)(i)(II) applied to him; and second, whether the Board
correctly found that § 1255(i) is inapplicable to aliens
found inadmissible under § (B)(i)(II). The Government
urges us to give Chevron deference to the BIA’s interpreta-
tion of both statutes. Chevron, U.S.A., Inc., v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). We agree
that the Chevron framework applies, see Negusie v. Holder,
129 S. Ct. 1159, 1163-64 (2009), but we hasten to add that
Chevron does not simply hold that the agency’s inter-
pretation always prevails. Instead, we must first ask
whether the language of the statute at issue is clear. If so,
then we follow the plain language of the statute. If not,
then we go on to consider whether the BIA’s reading is a
permissible one (whether or not is the one that we would
have chosen). Chevron, 467 U.S. at 842-43. See also 8 U.S.C.
§ 1103(a)(1); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999);
8 C.F.R. § 1003.1(a)(1).
The central question before us is whether the Board
acted within its Chevron powers when it concluded that
§ (B)(i)(II) and § (C)(i)(I) were essentially equivalent.
For convenience, we set forth the relevant language of
each one, including the language in § 1182(a)(9) that
precedes both subparts:
No. 07-3942 9
(a) Classes of aliens inadmissible for visas or admis-
sion. Except as otherwise provided . . . aliens who are
inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be ad-
mitted to the United States:
...
(9) Aliens previously removed.
...
(B) Aliens unlawfully present.
(i) In general. Any alien (other than an
alien lawfully admitted for permanent
residence) who–
...
(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 depar-
ture or removal from the United States,
is inadmissible.
...
(C) Aliens unlawfully present after previous
immigration violations.
(i) In general. Any alien who–
(I) has been unlawfully present in the
United States for an aggregate period
of more than 1 year
...
10 No. 07-3942
and who enters or attempts to reenter the
United States without being admitted is
inadmissible.
8 U.S.C. § 1182(a)(9)(B)-(C).
Although a quick glance at § (B)(i)(II) and § (C)(i)(I)
might leave the impression that they are redundant,
we cannot leave matters there. The Supreme Court has
cautioned us to read statutes carefully, see, e.g., Jama v.
Immigration and Customs Enforcement, 543 U.S. 335, 341-52
(2005), and it has warned against easy assumptions that
differing language in two subsections of a law has the
same meaning, see, e.g., Russello v. United States, 464 U.S.
16, 23 (1983). That said, one can see that both subparts of
§ 1182(a)(9) address the general situation of aliens who
at some point have been present in the United States
unlawfully. Indeed, both address the case of aliens who
were unlawfully present in the United States for one year
or more. But at that point, the two subparts diverge in a
way that the Board did not recognize.
Before addressing these differences in detail, we must
resolve a preliminary point having to do with the
meaning of the term “admission” in § (B)(i)(II). Lemus-
Losa argues that it refers only to formal admission to the
United States, both at the time of the first entry into this
country and at the time of re-entry. The alternative is to
understand “admission” as a broader term that might
refer to illegal entry in some contexts, and to lawful
entry in others. If the term “admission” were limited
to formal admissions to the United States, then Lemus-
Losa would be correct that § (B)(i)(II) would not apply to
No. 07-3942 11
him, since he did not formally apply for admission
during his first stay here (and indeed did not do so until
he filed his Form I-485 on September 29, 2005). The
BIA, however, found “no merit in the . . . contention that
[the section] does not apply to aliens, like himself, who
are not applying for admission at a foreign consulate. In
fact, we have expressly concluded otherwise [in In re
Rodarte].” Lemus-Losa (BIA) at 377. In fact, a closer look at
In re Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006), shows
that it does not dispose of Lemus-Losa’s claim, since it
rejected only the argument that § (B)(i)(II) applies only to
aliens seeking admission at the border. The Board ex-
plained that
the term “admission” [in the INA] generally refers to
adjustment of status from within the United States, as
well as lawful entry at the border. . . . If the term
“admission” did not include “lawful admission to
permanent residence” by means of adjustment of
status, then section [1182](a)(9)(B)(i)(II) would
preclude an alien from acquiring lawful permanent
residence through admission as an immigrant at the
border, but would permit the very same alien to
evade this preclusion by simply entering the United
States unlawfully and applying for adjustment. We
do not believe that Congress intends the Immigration
and Nationality Act to be interpreted in a manner
that would give aliens an incentive to enter the
United States illegally.
In re Rodarte-Roman, 23 I. & N. Dec. at 908.
We have no reason to disagree with the Board’s posi-
tion that the word “admission” means different things,
12 No. 07-3942
depending on the particular part of the INA that is at
issue. This is true despite the fact that the definition of
admission in 8 U.S.C. § 1101(a)(13)(A) appears to limit
the term to lawful entry. The Board has read the defini-
tion as if it were prefaced with the phrase “unless the
context otherwise provides.” See In re Rosas-Ramirez, 22
I. & N. Dec. 616, 623 (BIA 1999). We recognized this in
Abdelqadar v. Gonzales, where we noted that to accept
that the term “admission” extends beyond the statutory
definition in the context of one clause “is not . . . to imply
that the word must have the same meaning” in another.
413 F.3d 668, 673 (7th Cir. 2005). “[T]he whole point of
contextual reading,” we wrote, “is that context mat-
ters—and the context of the word ‘admission’ in [one
part of the statute] differs substantially from its context
in [another].” Id. at 674.
Returning, therefore, to § (B)(i)(II) and § (C)(i)(I), we
reiterate that both are triggered by an initial sojourn in
the United States that was unlawful. Both address the
terms of re-entry. But here the similarities cease. Subpart
(C)(i)(I) applies to an alien “who enters or attempts to
reenter the United States without being admitted.” Subpart
(B)(i)(II), in contrast, speaks of an alien “who again
seeks admission within 10 years of the date of such alien’s
departure or removal from the United States.” Only
two possibilities exist: either these two statutes cover
exactly the same ground, or Congress’s choice of different
words means something. As we noted, we should not
lightly come to the former conclusion. In fact, as we
now explain, there is an important line that is being
drawn, and it is a line that has significance for the kind
of relief that Lemus-Losa is seeking.
No. 07-3942 13
The key phrase in § (B)(i)(II) is the one we have em-
phasized above: it applies to the alien who has sought—
that is to say, asked for—admission to the United States
within the 10-year window. Subpart (C)(i)(I) itself acknowl-
edges that there must be some avenue for this kind of
lawful petition for reentry, since it makes inadmissible
only those who enter or attempt to reenter “without
being admitted.” No one is entitled to be admitted
without “seeking admission” from the Attorney General
or the Secretary of the Department of Homeland Secu-
rity. There might be every reason to hold, as the Board did
in Briones, that aliens inadmissible under § (C)(i)(I)—that
is to say, aliens who have not legitimately sought admis-
sion to the United States after their previous immigration
violations—are ineligible for adjustment of status under
the LIFE Act, § 1255(i). But to equate the unlawful re-
entrant with someone who is “seeking admission” is
another matter entirely.
With these distinctions in mind, we turn to the core of
Lemus-Losa’s petition: his claim that the BIA erroneously
concluded that he was barred as a matter of law from
taking advantage of the LIFE Act. The Board equated the
inadmissibility of someone who is subject to § (C)(i)(I) with
the inadmissibility of a person subject to § (B)(i)(II),
without asking how the difference that we have identi-
fied between the two subparts intersects with the LIFE Act.
Other circuits that have looked at this general problem
have focused only on how § (C)(i)(I) affects eligibility
under the LIFE Act. Most have agreed with the Board,
especially now that the Board has issued precedential
14 No. 07-3942
opinions on the matter. Some differences of opinion,
however, may remain. Earlier, the Ninth Circuit, in
Acosta v. Gonzales, 439 F.3d 550, 552-56 (9th Cir. 2006),
and the Tenth, in Padilla-Caldera v. Gonzales, 453 F.3d 1237,
1242-44 (10th Cir. 2005), held that § 1182(a) recognizes
the LIFE Act, § 1255(i), as an exception to the normal rule
of ineligibility for adjustment of status for a person
covered by § (C)(i)(I). On the other hand, again in a case
involving § (C)(i)(I), the Second Circuit concluded that the
statutory provisions are sufficiently ambiguous that the
courts should give Chevron deference to the BIA’s Briones
ruling. See Mora v. Mukasey, 550 F.3d 231, 237-39 (2d Cir.
2008). In so ruling, the Second Circuit joined the Fifth
and Sixth Circuits (both of which were also addressing
§ (C)(i)(I)). See Ramirez-Canales v. Mukasey, 517 F.3d 904,
908-10 (6th Cir. 2008); Mortera-Cruz v. Gonzales, 409 F.3d
246, 255-56 (5th Cir. 2005). We must decide what
bearing these decisions have on the issue before us.
In Padilla-Caldera, the petitioner entered the United
States illegally in 1996 or 1997, when he was a teenager.
Some time later, he met a U.S. citizen, who he married in
1999. In 2000, she filed a Petition for Alien Relative,
much like Lemus-Losa’s father did. The legacy INS
ruled favorably on the petition, and then Padilla-Caldera
and his wife went to Mexico, as instructed by the INS.
At that point, the U.S. Consulate decided that Padilla-
Caldera was ineligible for adjustment of status, initially
under § (B)(i)(II). The Government reasoned that he was
an alien who had been present in the United States unlaw-
fully, and he was seeking admission within ten years
of the date of his departure or removal. After some
No. 07-3942 15
time, both Padilla-Caldera and his wife returned to the
United States; Padilla-Caldera’s entry was again unlaw-
ful. He was apprehended, and in his removal proceedings,
he asked for relief under the LIFE Act. The IJ and the
BIA held that he was not entitled to this relief as a matter
of law, relying ultimately on § (C)(i)(I). The Tenth
Circuit granted his petition for review and reversed.
The court began by noting that the LIFE Act “provides
that aliens who are physically present in the United
States after entering without inspection, who are the
beneficiaries of an adjustment petition filed before
April 30, 2001, and who pay a $1,000 fee, may apply
for adjustment of status.” 453 F.3d at 1241. It acknowl-
edged that aliens unlawfully present in the country for
an aggregate period of more than one year, who re-
enter illegally, are normally inadmissible for a ten-year
period, but, it wrote:
[T]here are myriad grounds of inadmissibility, and the
LIFE Act was written to provide an exception to the
general rule that aliens who entered the country
without inspection are ineligible to seek adjustment
to lawful permanent status. The permanent bar pro-
vision on which the government relies to bar
Padilla-Caldera from relief under the LIFE Act has a
“savings clause,” which precedes the list of classes
of inadmissible aliens by stating that the following
classes are inadmissible “except as otherwise pro-
vided in this chapter.” [8 U.S.C.] § 1182(a).
453 F.3d at 1241. The critical language on which the
court focused was the preface to § 1182(a), which says,
16 No. 07-3942
“Except as otherwise provided in this Act, aliens who
are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted
to the United States.” (Emphasis added.) Subsection (9)
of § 1182(a) naturally falls under that general language.
The Tenth Circuit held that the LIFE Act was something
that “otherwise provided,” and that it was faced with
the purely legal task of reconciling two statutes. Along
the way, it noted that “the overriding goal of the LIFE Act
was family reunification for illegal entrants and status
violators who have otherwise ‘played by the rules.’ ” 453
F.3d at 1242 (emphasis in original). The court concluded
that it saw “no basis upon which we may conclude that
Congress intended [§ (C)(i)(I)] to be among those
statutes that remain untouched by the LIFE Act’s
remedial powers. To the contrary, we conclude that
Congress intended the LIFE Act to apply to aliens like
Padilla-Caldera.” Id. at 1244.
In Acosta, the Ninth Circuit (citing Padilla-Caldera with
approval) came to much the same conclusion. There
too, the petitioner was a Mexican national who entered
the United States illegally, returned to Mexico a couple
of times, and re-entered the United States without inspec-
tion (and without formally seeking readmission). The
Ninth Circuit relied on its earlier decision in Perez-
Gonzalez v. Ashcroft, 379 F.3d 783, 793 (9th Cir. 2004), in
which it had observed that “[n]othing in the statutory
provisions regarding adjustment of status, nor in the
discussion of its purposes, suggests that aliens who
have been previously deported or removed are barred
from this form of relief.” Applying similar logic to
No. 07-3942 17
Acosta’s case, the court decided that “there is also
nothing to suggest that aliens who reenter the country
after accruing more than one year of unlawful presence
are ineligible for penalty-fee adjustment of status.” 439
F.3d at 554. In a later decision, the Ninth Circuit empha-
sized that Perez-Gonzalez rested on a finding of ambiguity
in the statutes; in light of the Board’s new pronounce-
ment in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006),
it concluded that Perez-Gonzalez was no longer good law.
See Gonzales v. Department of Homeland Security, 508
F.3d 1227, 1236-42 (9th Cir. 2007).
In Mora, the Second Circuit took note of the Ninth
Circuit’s later Gonzalez decision and concluded that it
substantially undermined Acosta. It read the Tenth
Circuit’s decision in Padilla-Caldera as one that also as-
sumed statutory ambiguity. It summarized the BIA’s
actions as follows:
Subsequent to the Tenth Circuit’s decision in
Padilla-Caldera and the BIA’s rejection of the Moras’
appeal in this case, the agency decided In re Briones,
24 I. & N. Dec. 355 (BIA 2007), in which it determined
for the first time in a published opinion that, even
though aliens who are inadmissible under section
1182(a)(6)(A)(i) may be eligible for adjustment of
status under section 1255(i) by operation of section
1182(a)’s savings clause, aliens who are inadmissible
also under section 1182(a)(9)(C)(i)(I) are not.
550 F.3d at 237. It concluded that the statutory language
was ambiguous; that the precise reach of § 1255(i) is an
18 No. 07-3942
issue for the agency to resolve; and that, at least as it
applies to § (C)(i)(I), the BIA’s decision to withhold
relief under § 1255(i) to recidivists (that is, aliens who
repeatedly enter the country illegally) was reasonable.
If the question before us were the same as the one that
our sister circuits have confronted—namely, the relation
between § (C)(i)(I) and § 1255(i)—we would agree that
there is sufficient ambiguity in these provisions to
require Chevron deference, and we would find that the
BIA has drawn a rational line. But our issue is not the
same. We must decide instead whether the BIA was
entitled to equate aliens inadmissible under § (C)(i)(I)
and aliens like Lemus-Losa who are inadmissible under
§ (B)(i)(II). In order to do this, we must look more care-
fully at two additional parts of the INA: 8 U.S.C.
§ 1182(a)(6)(A)(i) and the LIFE Act, § 1255(i). The former
statute reads as follows:
(6) Illegal entrants and immigration violators.
(A) Aliens present without admission or parole.
(i) In general. An alien present in the United
States without being admitted or paroled, or
who arrives in the United States at any time
or place other than as designated by the Attor-
ney General, is inadmissible.
8 U.S.C. § 1182(a)(6)(A)(i). The LIFE Act appears in a
section of the law devoted to the adjustment of status of
a nonimmigrant to that of a person admitted for per-
manent residence; its pertinent provisions are these:
No. 07-3942 19
(i) Adjustment in status of certain aliens physically
present in United States.
(1) Notwithstanding the provisions of subsections
(a) and (c) of this section, an alien physically
present in the United States–
(A) who–
(i) entered the United States without in-
spection; or
(ii) is within one of the classes enumerated
in subsection (c) of this section;
(B) who is the beneficiary (including a spouse
or child of the principal alien, if eligible to
receive a visa under section [1153(d) of this
title]) of–
(i) a petition for classification under section
[1154 of this title] that was filed with the
Attorney General on or before April 30,
2001; or
(ii) an application for a labor certification
under section [1182(a)(5)(A) of this title]
that was filed pursuant to the regulations
of the Secretary of Labor on or before
such date; and
(C) who, in the case of a beneficiary of a peti-
tion for classification, or an application for
labor certification, described in subparagraph
(B) that was filed after January 14, 1998, is
physically present in the United States on
[December 21, 2000];
20 No. 07-3942
may apply to the Attorney General for the ad-
justment of his or her status to that of an alien
lawfully admitted for permanent residence.
8 U.S.C. § 1255(i).
To state the obvious, the LIFE Act applies to aliens who
are illegally present in the United States (that is, who
“entered the United States without inspection” or who
are in the class described by 8 U.S.C. § 1255(c), which
includes “[a]lien crewmen, aliens continuing or ac-
cepting unauthorized employment, and aliens admitted
in transit without a visa”). And 8 U.S.C. § 1182(a)(6)(A)(i)
states that aliens who enter without inspection (that is,
illegally) are “inadmissible.” Yet, under the LIFE Act, the
Attorney General may adjust the status of an alien
after finding that “the alien is eligible to receive an im-
migrant visa and is admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(i)(2)(A) (emphasis
added). The word “admissible” in that provision cannot
mean something like “not inadmissible for any reason.” If
it did, then no one would be eligible for adjustment of
status under the LIFE Act, and the absurd situation that
Lemus-Losa feared would come to pass. It must instead
refer to a subset of the aliens who are inadmissible
under the statute. In other words, the effect of the LIFE
Act is to permit adjustment of status for a certain group
of otherwise inadmissible aliens, and to draw a line
between those whose ground of inadmissibility does not
preclude a finding that the person is “admissible to the
United States for permanent residence” and those whose
ground of inadmissibility does preclude such a finding.
No. 07-3942 21
Here is where the difference between § (B)(i)(II) and
§ (C)(i)(I) becomes important. Anyone who is cate-
gorically inadmissible at the time he or she files for
LIFE Act adjustment cannot receive relief under the Act.
That group would include everyone from aggravated
felons to those who have attempted on more than one
occasion to enter the United States illegally—the
recidivists described by § (C)(i)(I). But if someone is
“seeking admission” to the United States on that second
occasion and has thus demonstrated that he is willing
to play by the rules, he is no different from the alien
who is physically present in the United States “without
inspection” but who is entitled to apply for LIFE Act
relief. This interpretation gives deference to the Board’s
Briones decision, which construes § (C)(i)(I), while at
the same time it takes into account the difference in
statutory language that we find in § (B)(i)(II).
III
As we stated at the outset, the Board did not pay suffi-
cient heed to the difference between § (B)(i)(II), the
statute involved in the proceeding against Lemus-Losa,
and § (C)(i)(I), the statute involved in Briones and the
decisions from our sister circuits. This was an error of
law and thus something within our jurisdiction to ad-
dress. We see no need to give extensive treatment, at
this time, to Lemus-Losa’s alternative argument, which
is that the inadmissibility rule of § (B)(i)(II) should not
apply to him because he was never formally removed
from the United States, and the language of that section
22 No. 07-3942
addresses only aliens who have returned in spite of such
an order of removal.
We G RANT the petition for review and R EMAND this
matter to the Board of Immigration Appeals for further
proceedings.
8-13-09