Orozco v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN OROZCO, 
Petitioner, No. 06-75021
v.
 Agency No.
A77-981-235
MICHAEL B. MUKASEY,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 7, 2007—Pasadena, California
Filed March 25, 2008
Before: Kim McLane Wardlaw, Carlos T. Bea, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N. R. Smith
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
2991
OROZCO v. MUKASEY 2993
COUNSEL
Jaime Jasso, Immigration Appealworks, Westlake Village,
California, for the petitioner-appellant.
Allen W. Hausman, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department of Justice,
for the respondent-appellee.
OPINION
N.R. SMITH, Circuit Judge:
We hold that an alien, who obtains entry into the United
States by fraudulent means, is statutorily ineligible for adjust-
ment of status under 8 U.S.C. § 1255(a). Because petitioner
Brian Orozco (“Orozco”) obtained entry into the United
States by presenting identification that was not his own to an
immigration agent, we hold that the Board of Immigration
Appeals (“BIA”) and the immigration judge (“IJ”) properly
denied Orozco’s application for adjustment of status under
§ 1255(a). Accordingly, we deny Orozco’s petition for
review.
I. Factual and Procedural Background
Orozco entered the United States on January 11, 1996, at
the San Ysidro, California checkpoint. Orozco did not possess
2994 OROZCO v. MUKASEY
valid identification that would have allowed him legally to
enter the United States, nor was he eligible for any such valid
entry document at the time of his entry. Orozco instead
entered the United States illegally by using the permanent res-
ident alien card, or “green card,” of another person whom
Orozco resembled.
Once inside the United States, Orozco developed an inti-
mate relationship with Raquel Ontiveros, a United States citi-
zen. On August 5, 2000, Raquel Ontiveros (then age 17) gave
birth to their first child. Orozco married Raquel Ontiveros
(hereinafter “Raquel Orozco”) on April 23, 2001. On March
10, 2004, Raquel Orozco gave birth to the couple’s second
child.
In June 2001, Raquel Orozco filed an application for an
alien relative visa on Orozco’s behalf. At the same time,
Orozco applied for adjustment of status. The Immigration and
Naturalization Service (“INS”) subsequently approved Oroz-
co’s visa application. The INS, however, denied Orozco’s
application for adjustment of status in 2002 after Orozco
failed to appear for a required hearing.
Approximately three years later, immigration officials
apprehended Orozco while he was on business for his
employer. After apprehending Orozco, on April 13, 2005, the
government charged Orozco with removability pursuant to 8
U.S.C. § 1182(a)(6)(A)(i) based on his status as an alien pres-
ent in the United States without being admitted or paroled, or
alternatively, as one who entered the United States at any time
or place other than one officially designated. The government
subsequently filed an amended charge of removability against
Orozco, pursuant to 8 U.S.C. § 1227(a)(1)(A), charging him
with presenting a counterfeit document to gain admission into
the United States. Orozco admitted the factual basis for the
amended charge and conceded removability.
Despite Orozco’s concession that he was removable and his
admitted use of fraudulent documents in order to gain entry
OROZCO v. MUKASEY 2995
into the United States, Orozco filed another application for
adjustment of status pursuant to 8 U.S.C. § 1255(a) and a
waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i).
Orozco contended that, because he presented himself at the
border for inspection and an immigration agent allowed him
to enter the United States, he was “inspected and admitted”
and thus eligible for adjustment of status pursuant to 8
U.S.C. § 1255(a). Orozco further argued that any fraud atten-
dant to his entry into the United States could be waived under
8 U.S.C. § 1182(i).
The IJ determined that Orozco was statutorily ineligible for
adjustment of status, because he could not satisfy the “lawful
entry” requirement of 8 U.S.C. § 1101(a)(13)(A). The IJ fur-
ther held that, even if Orozco did qualify for a waiver of inad-
missibility under 8 U.S.C. § 1182(i), Orozco nevertheless
remained statutorily ineligible for adjustment under 8 U.S.C.
§ 1255(a) because of his fraudulent entry into the United
States.
In a one-member, unpublished decision, the BIA adopted
and affirmed the IJ’s decision in its entirety, citing Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and “agree-
[ing] with the Immigration Judge that [Orozco] is ineligible
for adjustment of status . . . [because he] did not establish
lawful entry and admission pursuant to [8 U.S.C.
§ 1101(a)(13)(A)].” Because the BIA adopted the IJ’s deci-
sion and expressed no disagreement with it, we review the
IJ’s decision as if it were a decision of the BIA. Abebe v.
Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005) (en banc).
Orozco petitioned to this court for review. We have juris-
diction under 8 U.S.C. § 1252, and we deny Orozco’s peti-
tion.
II. Standard of Review and Jurisdiction
We review questions of law de novo. Hernandez-Gil v.
Gonzales, 476 F.3d 803, 804 n.1 (9th Cir. 2007). The BIA’s
2996 OROZCO v. MUKASEY
unpublished one-member decision is not entitled to deference
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-44 (1984). Ortega-Cervantes
v. Gonzales, 501 F.3d 1111, 1113-14 (9th Cir. 2007) (citing
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012, 1014 (9th
Cir. 2006)). Any deference afforded to the BIA’s interpreta-
tion of the governing statutes and regulations or the IJ’s inter-
pretation of the same, which we review here as if it were the
decision of the BIA, “will depend upon the thoroughness evi-
dent in its consideration, the validity of its reasoning, its con-
sistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to
control.” Ortega-Cervantes, 501 F.3d at 1113-14 (internal
quotation marks omitted) (quoting Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944)); Garcia-Quintero, 455 F.3d at
1014-15 (“[W]e must undertake a Skidmore assessment of the
BIA’s decision to determine whether it warrants deference.”).
We lack jurisdiction to consider discretionary denials of
adjustment of status. Ortega-Cervantes, 501 F.3d at 1113 (cit-
ing 8 U.S.C. § 1252(a)(2)(B)(i)). However, we “retain juris-
diction to decide, as a matter of law, whether an alien is
statutorily eligible for adjustment of status.” Id. (citing 8
U.S.C. § 1252(a)(2)(D)).
III. Analysis
Orozco seeks adjustment of his legal status to that of a per-
manent resident alien pursuant to 8 U.S.C. § 1255(a). “Ad-
justment of status provides a means for certain aliens present
in the United States to become lawful permanent residents.”
Ortega-Cervantes, 501 F.3d at 1114.
Because our determination as to whether Orozco is eligible
for adjustment of status requires statutory interpretation, we
first look to the relevant statutory provisions. See United
States v. Turkette, 452 U.S. 576, 580 (1981); Brock v. Writers
Guild of Am., W., Inc., 762 F.2d 1349, 1353 (9th Cir. 1985)
OROZCO v. MUKASEY 2997
(“In construing a statute in a case of first impression, we look
to the traditional signposts of statutory construction: first, the
language of the statute itself; second, its legislative history,
and as an aid in interpreting Congress’ intent, the interpreta-
tion given to it by its administering agency.” (internal cita-
tions omitted)).
Section 245(a) of the Immigration and Nationality Act
allows for adjustment of status in certain circumstances:
The status of an alien who was inspected and admit-
ted or paroled into the United States . . . may be
adjusted by the Attorney General, in his discretion
and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent resi-
dence if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an
immigrant visa and is admissible to the United States
for permanent residence, and (3) an immigrant visa
is immediately available to him at the time his appli-
cation is filed.
8 U.S.C. § 1255(a).
[1] The term “admitted” is not defined in 8 U.S.C.
§ 1255(a). It is, however, defined in 8 U.S.C.
§ 1101(a)(13)(A). According to the statutory definition in that
section, “[t]he terms ‘admission’ and ‘admitted’ mean, with
respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an immi-
gration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis added).
The definitions found in 8 U.S.C. § 1101(a)(13)(A) apply to
terms “used in [the] chapter” containing 8 U.S.C. § 1255(a).
See 8 U.S.C. § 1101(a).
[2] Based on the unambiguous statutory language in 8
U.S.C. § 1255(a) and 8 U.S.C. § 1101(a)(13)(A), an alien’s
entry into the United States must be lawful for the alien to
2998 OROZCO v. MUKASEY
qualify for adjustment of status under 8 U.S.C. § 1255(a). We
further conclude that lawful entry requires more than simply
presenting oneself for inspection and being allowed to enter
the United States.
Our holding is in accord with 8 C.F.R. § 101.2, which pro-
vides that an alien whose entry was made and recorded under
a mistake about his name shall be deemed to have been law-
fully admitted so long as he proves that the record of claimed
admission relates to him and that the name recorded at the
time of the alien’s entry into the United States was not used
for the purpose of using the visa or passport of another per-
son.
We have recognized the applicability of 8 U.S.C.
§ 1101(a)(13)(A) to another section of the Immigration and
Nationality Act relating to removability. See Shivaraman v.
Ashcroft, 360 F.3d 1142 (9th Cir. 2004). In Shivaraman, we
reversed the BIA’s decision regarding an alien’s date of
admission to the United States for purposes of deciding
whether he had been convicted of a crime of moral turpitude
committed within five years of the date of admission. Id. at
1143-49. We concluded that the BIA unreasonably interpreted
the statutory language relating to the alien’s “date of admis-
sion.” In reaching that conclusion, we observed that 8 U.S.C.
§ 1101(a)(13)(A) “leaves no room for doubt, unambiguously
defining admission as the lawful entry of the alien into the
United States.” Shivaraman, 360 F.3d at 1146.
Orozco argues that the “lawful entry” requirement imposed
by 8 U.S.C. § 1101(a)(13)(A) relates to the location of the
alien’s entry into the United States. Orozco argues that so
long as an alien presents himself for inspection at an autho-
rized border crossing station and is allowed to enter the
United States, the alien’s entry was lawful for purposes of 8
U.S.C. § 1255(a). In essence, Orozco asks us to turn a blind
eye to criminal and fraudulent acts underlying his entry,
OROZCO v. MUKASEY 2999
because he arrived at an authorized border crossing station
and presented himself for inspection.
[3] Orozco’s entry into the United States was not lawful.
See, e.g., 18 U.S.C. § 1001(a) (stating that it is a federal crime
for an individual knowingly and willfully to “make[ ] any
materially false, fictitious, or fraudulent statement or repre-
sentation” or “make[ ] or use[ ] any false writing or document
knowing the same to contain any materially false, fictitious,
or fraudulent statement or entry . . .” “within the jurisdiction
of the executive, legislative, or judicial branch” of the United
States); see also 18 U.S.C. § 1028(a)(7) (prohibiting an indi-
vidual from using “a means of identification of another person
with the intent to commit . . . any unlawful activity that con-
stitutes a violation of Federal law.”). Therefore, we reject
Orozco’s argument that his entry, while criminal, was lawful
for purposes of 8 U.S.C. § 1255(a) because he presented him-
self for inspection and admission and was allowed to enter the
United States. To hold otherwise would create an “absurd
result,” which we must avoid, if possible, when interpreting
a statute. See Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.
2001) (en banc).
Orozco also argues that both the BIA and IJ erred by
declining to follow the BIA’s published decision in Matter of
Areguillin, 17 I. & N. Dec. 308 (BIA 1980). We disagree. In
Areguillin, an alien was allowed to cross the United States
border after a border control agent peered inside the vehicle
in which she was a passenger, asked the driver a question, and
then allowed the vehicle to pass. Id. at 309. The alien had no
documentation that would have allowed her legally to enter
the United States. Id. In denying relief under 8 U.S.C. § 1255,
the IJ held that the alien had not been sufficiently “inspected
and admitted” to allow for adjustment of status under 8
U.S.C. § 1255. Id.
The BIA in Areguillin reversed, holding that “[t]he rule that
an alien has not entered without inspection when he presented
3000 OROZCO v. MUKASEY
himself for inspection and made no knowing false claim to
citizenship applies in determining whether an alien has satis-
fied the inspection and admission requirement of [8 U.S.C.
§ 1255].” Id. at 310. The BIA concluded that for the purposes
of 8 U.S.C. § 1255, “ ‘[a]dmission’ occurs when the inspect-
ing officer communicates to the applicant that he has deter-
mined that the applicant is not inadmissible [and] [t]hat
communication has taken place when the inspector permits
the applicant to pass through the port of entry.” Id. at 310, n.6
(internal citation omitted).
Areguillin is of no persuasive value here because, with the
passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Congress altered the
statutory framework upon which the Areguillin decision
rested. Prior to the enactment of IIRIRA, 8 U.S.C. § 1101(13)
defined “entry” but did not define “admission.” Further, the
definition for “entry” was silent on whether the “entry”
needed to be lawful. See 8 U.S.C. § 1101(13) (1994). With the
enactment of IIRIRA, Congress defined “admission” to
“mean, with respect to an alien, the lawful entry of the alien
into the United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A) (emphasis
added). In light of the amendment, Congress unambiguously
required lawful entry into the United States as a statutory pre-
requisite to adjustment of status under 8 U.S.C. § 1255(a).
Thus, Areguillin does not control.
[4] Finally, Orozco argues that he is entitled to adjustment
of status under 8 U.S.C. § 1255(a) because he may be entitled
to a waiver of inadmissibility under 8 U.S.C. § 1182(i). We
disagree. In short, eligibility for a waiver of inadmissibility
does not make Orozco’s underlying entry into the United
States lawful. As discussed above, lawful entry is a statutory
prerequisite for adjustment of status under 8 U.S.C. § 1255(a).
Orozco did not satisfy this requirement and, accordingly, is
not eligible for adjustment under that section.
OROZCO v. MUKASEY 3001
IV. Conclusion
We conclude that the IJ and the BIA correctly determined
that Orozco was statutorily ineligible for adjustment of status
under 8 U.S.C. § 1255(a). We therefore deny Orozco’s peti-
tion for review.
PETITION DENIED.