Maria Gonzalez-Balderas v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1890
M ARIA E. G ONZALEZ-B ALDERAS,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
No. A 077 490 772
S UBMITTED F EBRUARY 10, 2010—D ECIDED M ARCH 5, 2010
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
P OSNER , Circuit Judge. The petitioner, a Mexican
citizen, entered the United States illegally by the use
of someone else’s documentation and was promptly
removed. 8 U.S.C. § 1225(b)(1)(A)(i). Her removal made
her ineligible to seek readmission to the United States
for five years unless she obtained permission to
reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii).
2 No. 09-1890
Rather than either wait or ask for permission to
reapply, she snuck back into the United States a month
later. This meant that she was forbidden to reapply for
permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii).
Still, here she was, undetected, and the following year
her husband, a lawful permanent resident of the United
States (since then he has become a citizen), whom she
had married shortly after her second illegal entry, filed
a visa petition on her behalf. The petition was granted,
and later she filed an application to adjust her status,
on the basis of her husband’s status, to that of a lawful
permanent resident. § 1255(i)(1).
Upon discovering that she had reentered the country
illegally after being removed, the Department of Home-
land Security, though it could have removed her sum-
marily, § 1231(a)(5), instead merely denied her applica-
tion for adjustment of status and scheduled a
new removal hearing. At that hearing which she asked
the immigration judge to permit her to reapply for ad-
mission retroactive to the date of her reentry. Her
authority was 8 C.F.R. § 212.2(i)(2), which states that an
adjustment of status can be ordered retroactively. Were
that provision applicable to her notwithstanding the
statute, she could apply for adjustment of status without
waiting ten years from her second removal. But the
immigration judge, seconded by the Board of Immigration
Appeals, ruled on the authority of In re Torres-Garcia, 23
I. & N. Dec. 866 (BIA 2006), that an application for retroac-
tive relief (which the Board calls “nunc pro tunc”—“now
for then”—relief, a term that properly refers, rather, to cor-
recting a mistake, Central Laborers’ Pension, Welfare &
No. 09-1890 3
Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999);
King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir.
1987)) cannot be granted when the effect would be to lift
the ten-year bar.
Retroactive relief is a tool long employed by the immigra-
tion authorities, based on what they believe to be implied
statutory authority to provide relief from the harsh provi-
sions of the immigration laws in sympathetic cases. See,
e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005);
Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004).
This case conceivably is one. The petitioner is 51 years old
and has three children, one a U.S. citizen and the others
lawful permanent residents, and apart from her illegal
entries she has been law-abiding. But the Board ruled
that the regulation cannot contravene the statute that
bars a removed alien from reapplying for admission for
ten years.
The statute is clear and the Board’s ruling correct—and
anyway the Board acted within its authority in interpreting
its own regulation not to permit the statute to be circum-
vented. The circuits in which the Board’s ruling has
been challenged have upheld it. Delgado v. Mukasey, 516
F.3d 65, 73 (2d Cir. 2008); Gonzales v. DHS, 508 F.3d 1227,
1241-42 (9th Cir. 2007). We now join them, elevating
dicta in Lemus-Losa v. Holder, 576 F.3d 752, 760 (7th
Cir. 2009), to a holding.
Another aspect of this case requires comment. Because
the petitioner was barred from receiving a waiver of
inadmissibility, she could not apply for an adjustment of
status. 8 U.S.C. § 1255(i)(2)(A). But rather than say that,
the immigration judge “pretermitted” the application.
4 No. 09-1890
This word is used by the immigration court and the
Board of Immigration Appeals whenever an alien is found
ineligible to apply for some form of relief. E.g., Singh v.
Gonzales, 468 F.3d 135, 136 n. 1 (2d Cir. 2006); Afful v.
Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004). The common dictio-
nary meanings of “pretermit” are to leave undone, to
neglect, to omit, to overlook intentionally, to let pass
without mention or notice, to interrupt or terminate,
to suspend indefinitely. Singh v. Gonzales, supra, 468 F.3d
at 136 n. 1. It might seem that because the petitioner’s
application for adjustment of status is premature and
will remain so until the ten years are up, it is the last
meaning of pretermit—to suspend indefinitely—that is
the one the Board intends. It is the sense in which the
word is used in the only regulation of the Board that
we’ve found that uses it. 8 C.F.R. § 240.21(c)(1).
That would mean that the petitioner’s application for
adjustment of status would be put in the freezer until she
became eligible to apply in ten years. But that is not
correct. To obtain legal residence in the United
States, she must, when she becomes eligible to apply
for permission to reapply for admission, 8 U.S.C.
§ 1182(a)(9)(C)(ii), apply for that permission. If
permission to enter is granted, she can then reapply
for adjustment of status—but not before. To say that
her application for adjustment of status has been
“pretermitted” is therefore unnecessarily vague; her
application has been dismissed.
A further oddity is that her application for adjustment
of status was denied by the Department of Homeland
No. 09-1890 5
Security when she was discovered to have entered the
country illegally for a second time. Denied—but later
pretermitted. The reason that both the Department and
the immigration judge rejected an application by her
to adjust her status is that an alien whose applica-
tion for adjustment of status has been denied by the
Department may renew the application before the im-
migration judge when the alien is placed in removal pro-
ceedings. 8 C.F.R. § 245.2(a)(5)(ii). That is what happened
here. But why the identical application was said to be
“denied” by the Department but “pretermitted” by the
immigration judge remains a mystery, though not one
that can help the petitioner.
She presents other grounds for relief, but they have
insufficient merit to warrant discussion. The petition
for review is
D ENIED.
3-5-10