Matilde Carrillo De Palacios v. Eric Holder, Jr. , 708 F.3d 1066 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA MATILDE CARRILLO DE No. 09-72059
PALACIOS,
Petitioner, Agency No.
A026-630-010
v.
ERIC H. HOLDER JR., Attorney ORDER AND
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 11, 2011—Seattle, Washington
Filed January 28, 2013
Before: Susan P. Graber and Milan D. Smith, Jr., Circuit
Judges, and Roger T. Benitez,* District Judge.
Order;
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
2 CARRILLO DE PALACIOS V . HOLDER
SUMMARY**
Immigration
The panel withdrew the first superseding opinion filed on
December 1, 2011, and published at 662 F.3d 1128, and filed
a second superseding opinion, again denying Maria Matilde
Carrillo de Palacios’s petition for review from the Board of
Immigration Appeals’ decision finding her ineligible for
adjustment of status.
The panel held that Carrillo de Palacios was not eligible
to adjust under 8 U.S.C. § 1255(i), because she was
inadmissible under § 1182(a)(9)(C)(i), and did not qualify for
the exception to inadmissibility in § 1182(a)(9)(C)(ii). The
panel held that the BIA correctly found Carrillo de Palacios
inadmissible under § 1182(a)(9)(C)(i)(II), because after she
was ordered removed she returned to the United States
without being admitted. The panel also held that, in order to
be eligible for the exception to inadmissibility in
§ 1182(a)(9)(C)(ii), an alien must remain outside the U.S. for
more than ten years before returning, and concluded that
Carrillo de Palacios did not qualify. The panel also held that
the BIA’s application to Carrillo de Palacios’s case of Matter
of Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), which
held that aliens may not adjust if they are inadmissible under
§ 1182(a)(9)(C)(i)(II), was not impermissibly retroactive.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CARRILLO DE PALACIOS V . HOLDER 3
COUNSEL
Mari Matsumoto, Robert Pauw (argued), and Erin Cipolla,
Gibbs Houston Pauw, Seattle, Washington, for Petitioner.
Tony West, John S. Hogan, Channah M. Farber, and Jessica
E. Sherman (argued), Civil Division, United States
Department of Justice, Washington, D.C., for Respondent.
ORDER
The opinion filed on December 1, 2011, 662 F.3d 1128,
is withdrawn. A superseding opinion will be filed
concurrently with this order. No further petitions for panel or
en banc rehearing will be entertained in this case.
OPINION
M. SMITH, Circuit Judge:
Petitioner Maria Matilde Carrillo de Palacios (Carrillo de
Palacios) petitions for review of a decision of the Board of
Immigration Appeals (BIA). The BIA determined that
Carrillo de Palacios is ineligible for adjustment of status
under section 245(i) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1255(i), because she is inadmissible under
INA section 212(a)(9)(C)(i), 8 U.S.C. § 1182(a)(9)(C)(i), and
is not eligible for the exception to inadmissibility in INA
section 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).
We deny the petition, as the BIA correctly concluded that
Carrillo de Palacios returned to the United States after being
4 CARRILLO DE PALACIOS V . HOLDER
“ordered removed under . . . any . . . provision of law, and . . .
enter[ed] or attempt[ed] to reenter the United States without
being admitted,” which renders her inadmissible under
8 U.S.C. § 1182(a)(9)(C)(i)(II). The BIA also correctly
concluded that she does not satisfy the requirements of
8 U.S.C. § 1182(a)(9)(C)(ii)’s exception to inadmissibility.
We hold that in order to be eligible under 8 U.S.C.
§ 1182(a)(9)(C)(ii), an alien must remain outside the United
States for more than ten years before returning to the United
States.
FACTUAL AND PROCEDURAL BACKGROUND
Carrillo de Palacios is a native and citizen of Mexico.
The Government instituted removal proceedings against her
in 2005, alleging that she had entered the United States
without being admitted or paroled, and therefore was subject
to removal under 8 U.S.C. § 1182(a)(6)(A)(i). She conceded
removability and sought to adjust her status to that of a lawful
permanent resident under 8 U.S.C. § 1255(i). The
Government opposed the adjustment-of-status application on
the ground that she had been deported in December 1984 and
subsequently reentered the country without permission in
1992 and 1997.
The immigration judge granted the adjustment-of-status
application, concluding that cases such as Acosta v. Gonzales,
439 F.3d 550 (9th Cir. 2006), provided the judge authority to
“cure the prior deportation and subsequent illegal return.”
The BIA then reversed in an unpublished decision, holding in
relevant part that Carrillo de Palacios was inadmissible under
8 U.S.C. § 1182(a)(9)(C)(i), that she did not qualify for the
exception to inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C)(ii), and that, as a result, she was not eligible
CARRILLO DE PALACIOS V . HOLDER 5
for adjustment of status under 8 U.S.C. § 1255(i). The BIA
accordingly ordered her removed.
JURISDICTION AND STANDARD OF REVIEW
Our review is governed by section 106(a) of the REAL ID
Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. When
addressing adjustment-of-status issues contained in final
orders of removal, we have jurisdiction to review questions
of law under 8 U.S.C. § 1252(a)(2)(D). Morales-Izquierdo v.
Dep’t of Homeland Sec., 600 F.3d 1076, 1084 (9th Cir. 2010).
We review those questions of law de novo. Id. at 1086 n.9.
DISCUSSION
I. Statutory Framework
To obtain adjustment of status under INA section 245(i),
an alien must be “admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(i)(2)(A). Aliens who
are inadmissible under INA section 212(a)(9)(C), 8 U.S.C.
§ 1182(a)(9)(C), are ineligible for adjustment of status. That
provision, entitled “Aliens unlawfully present after previous
immigration violations,” states:
(i) In general
Any alien who--
(I) has been unlawfully present in the
United States for an aggregate period of more
than 1 year, or
6 CARRILLO DE PALACIOS V . HOLDER
(II) has been ordered removed under
section 1225(b)(1) of this title, section 1229a
of this title, or any other provision of law,
and who enters or attempts to reenter the
United States without being admitted is
inadmissible.
(ii) Exception
Clause (i) shall not apply to an alien seeking
admission more than 10 years after the date of
the alien’s last departure from the United
States if, prior to the alien’s reembarkation at
a place outside the United States or attempt to
be readmitted from a foreign contiguous
territory, the Secretary of Homeland Security
[Secretary] has consented to the alien’s
reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(i)–(ii).1
Although our construction of these provisions might be
viewed as occasionally inconsistent, the law of our circuit is
now settled: according Chevron deference to the BIA’s
interpretation of the relevant statutes, we have held that
aliens who are inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I)–(II) are ineligible for adjustment of
1
Clause (iii), which allows the Secretary to waive clause (i) for certain
Violence Against W omen Act self-petitioners, is not at issue in this case.
See 8 U.S.C. § 1182(a)(9)(C)(iii); see also Violence Against W omen and
Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,
119 Stat. 2960.
CARRILLO DE PALACIOS V . HOLDER 7
status under 8 U.S.C. § 1255(i). See Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).2 Aliens
who are otherwise inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i) are deemed admissible only if they qualify
for the exceptions to inadmissibility stated in
§ 1182(a)(9)(C)(ii)–(iii). The exception at issue in this case,
§ 1182(a)(9)(C)(ii), “requir[es] that [the alien] obtain
permission to apply for readmission from outside the United
States after ten years have lapsed from the date of his last
departure.” Gonzales, 508 F.3d at 1242.
II. Inadmissibility under 8 U.S.C. § 1182(a)(9)(C)
The BIA concluded that Carrillo de Palacios is
inadmissible under both 8 U.S.C. § 1182(a)(9)(C)(i)(I) and
§ 1182(a)(9)(C)(i)(II), and thus is ineligible for adjustment of
status under § 1255(i). We agree with the BIA’s conclusion
regarding § 1182(a)(9)(C)(i)(II). We need not address the
arguments regarding § 1182(a)(9)(C)(i)(I), and we express
no opinion regarding the BIA’s analysis of that provision.
2
In Garfias-Rodriguez v. Holder, No. 09-72603, 2012 W L 5077137, at
*7 (9th Cir. Oct. 19, 2012) (en banc), we abrogated our earlier decision in
Acosta, 439 F.3d 550, in light of the BIA’s holding in In re Briones, 24 I.
& N. Dec. 355 (B.I.A. 2007), that aliens may not adjust their status under
8 U.S.C. § 1255(i) if they are inadmissible under § 1182(a)(9)(C)(i)(I).
Similarly, in Gonzales v. Department of Homeland Security, 508 F.3d
1227, 1241–42 (9th Cir. 2007), we abrogated Perez-Gonzalez v. Ashcroft,
379 F.3d 783 (9th Cir. 2004), in light of the BIA’s decision in In re
Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006), which held that aliens
may not adjust their status under § 1255(i) if they are inadmissible under
§ 1182(a)(9)(C)(i)(II). W e apply the retroactivity test articulated in
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982), to
determine whether the holdings of Briones and Torres-Garcia, and our
decisions deferring to those holdings, may be applied retroactively.
Garfias-Rodriguez, 2012 W L 5077137, at *9, *11–*12.
8 CARRILLO DE PALACIOS V . HOLDER
The statutory text is straightforward: an alien is
inadmissible if she “has been ordered removed under . . . any
. . . provision of law, and . . . enter[ed] or attempt[ed] to
reenter the United States without being admitted.” 8 U.S.C.
§ 1182(a)(9)(C)(i)(II). Thus, inadmissibility under this
provision requires two elements: (1) an order of removal, and
(2) subsequent illegal entry or attempted reentry.
As to the first requirement, the BIA found that Carrillo de
Palacios was “deported from the United States on December
20, 1984,” and was therefore “previously removed” for
purposes of § 1182(a)(9)(C)(i)(II).3 Ample evidence in the
record supports this finding. Carrillo de Palacios conceded to
the BIA that she “was deported over twenty years ago”
pursuant to “an order of deportation in her name from 1984,”
and her deportation warrant states that “an order has been
duly made that the alien CARILLO de Palacios, Matilde [sic]
. . . is subject to deportation under . . . [INA §] 241(a)(2).”
Carrillo de Palacios contends that she voluntarily departed
the country in early 1984 and should not have been ordered
deported in December 1984. However, her argument ignores
both the BIA’s factual findings and the abundant evidence in
3
It is undisputed that 8 U.S.C. § 1182(a)(9)(C)(i)(II) applies to orders
of removal that were issued before the April 1, 1997 effective date of the
statute. See Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076,
1079 (9th Cir. 2010) (finding alien inadmissible because of a September
14, 1994 order of removal). Moreover, federal immigration agencies have
long interpreted this provision as applying “to those aliens ordered
removed before or after April 1, 1997, and who enter or attempt to reenter
the United States unlawfully any time on or after April 1, 1997.”
Memorandum by Paul W . Virtue, Acting Executive Assoc. Comm’r,
Immigration and Naturalization Service, June 17, 1997, reprinted at 74
No. 25 Interpreter Releases 1033 (emphasis added).
CARRILLO DE PALACIOS V . HOLDER 9
the record that she was indisputably removed under an order
of deportation. See Ramirez-Juarez v. INS, 633 F.2d 174,
175–76 (9th Cir. 1980) (per curiam) (“[A]n alien cannot
collaterally attack an earlier exclusion or deportation at a
subsequent deportation hearing, in the absence of a gross
miscarriage of justice at the prior proceedings.”). Moreover,
“courts lack jurisdiction to review factual determinations
underlying adjustment-of-status decisions,” and it is therefore
too late for Carrillo de Palacios to dispute the BIA’s
conclusions. Morales-Izquierdo, 600 F.3d at 1084.
As to the second requirement, the BIA properly
determined that Carrillo de Palacios entered the United States
without being admitted. Substantial evidence supports the
conclusion that she last illegally entered in September 1997.
Moreover, in her briefs in this case, Carrillo de Palacios
acknowledged her September 1997 return to the United
States.
In sum, because Carrillo de Palacios was ordered
removed and then entered the United States without
permission, she is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II).
III. Retroactive Application of Torres-Garcia
Carrillo de Palacios contends that the BIA impermissibly
applied its decision in Torres-Garcia to her case, because she
applied for adjustment of status several weeks before we
issued our decision in Gonzales, in which we adopted Torres-
Garcia as the law of our circuit. In Gonzales, we deferred for
the first time to the BIA’s determination in Torres-Garcia
that aliens inadmissible under § 1182(a)(9)(C)(i)(II) may not
adjust their status under § 1255(i). Gonzales, 508 F.3d at
10 CARRILLO DE PALACIOS V . HOLDER
1241–42. We determined that we were required to defer to
the BIA’s interpretation in Torres-Garcia under the Supreme
Court’s decision in National Cable & Telecommunications
Ass’n v. Brand X Internet Services (Brand X), 545 U.S. 967,
980–82 (2005), because our earlier, contrary interpretation in
Perez-Gonzalez “was an interpretation of a statutory
ambiguity.” Gonzales, 508 F.3d at 1236. Carrillo de Palacios
alleges that she applied for adjustment of status in reliance on
Perez-Gonzalez.4
“[W]hen we overturn our own precedent following a
contrary statutory interpretation by an agency authorized
under Brand X, we analyze whether the agency’s statutory
interpretation (to which we defer) applies retroactively under
the test we adopted in Montgomery Ward, if the issue is fairly
raised by the parties.” Garfias-Rodriguez, 2012 WL
5077137, at *12. Because Carrillo de Palacios has “fairly
raised” the issue of retroactivity, the Montgomery Ward
factors must be applied to determine whether she can avoid
the retroactive application of Torres-Garcia.
The Montgomery Ward test seeks to “balanc[e] a
regulated party’s interest in being able to rely on the terms of
a rule as it is written, against an agency’s interest in
retroactive application of an adjudicatory decision.” 691 F.2d
at 1333. Adopting the analytical framework set forth in
Retail, Wholesale & Department Store Union v. NLRB (Retail
4
“[O]ur decision in Perez-Gonzalez effectively allowed [§ 1255(i)] to
function as a means to ‘circumvent the statutory 10-year limitation on
section [1182(a)(9)(C)(ii)] waivers’ by allowing aliens to ‘simply reenter
unlawfully before requesting the waiver.’” Garfias-Rodriguez, 2012 W L
5077137, at *3 (brackets omitted) (quoting Torres-Garcia, 23 I. & N. Dec.
at 876).
CARRILLO DE PALACIOS V . HOLDER 11
Union), 466 F.2d 380, 390–93 (D.C. Cir. 1972), the
Montgomery Ward test considers:
(1) whether the particular case is one of first
impression, (2) whether the new rule
represents an abrupt departure from well
established practice or merely attempts to fill
a void in an unsettled area of law, (3) the
extent to which the party against whom the
new rule is applied relied on the former rule,
(4) the degree of the burden which a
retroactive order imposes on a party, and (5)
the statutory interest in applying a new rule
despite the reliance of a party on the old
standard.
Montgomery Ward, 691 F.2d at 1333 (quoting Retail Union,
466 F.2d at 390). Our application of the Montgomery Ward
factors to the instant case necessarily follows the analysis
undertaken in Garfias-Rodriguez, which involved a nearly
identical retroactivity issue and a similarly situated petitioner.
The first Montgomery Ward factor—whether this is a case
of first impression—is “not . . . well suited to the context of
immigration law” and does not favor either party. Garfias-
Rodriguez, 2012 WL 5077137, at *13. The second and third
factors, however, strongly favor the government. Carrillo de
Palacios cannot reasonably argue that Torres-Garcia
represented an abrupt departure from any well-established
practice, because “the tension between § 212(a)(9)(C) and
§ 245(i) was obvious. That ambiguity in the law—which
resulted in a six-year dialogue between the BIA and
us—should have given [Carrillo de Palacios] no assurances
of [her] eligibility for adjustment of status.” Id. at *15.
12 CARRILLO DE PALACIOS V . HOLDER
Additionally, Carrillo de Palacios could not have reasonably
relied on our former decision in Perez-Gonzalez because she
applied for adjustment of status after Torres-Garcia was
issued and was thus “on notice of” Perez-Gonzalez’s
“vulnerability.” Id. at *14.
However, the fourth factor, which considers the degree of
burden imposed on a party, weighs heavily in favor of
Carrillo de Palacios. See id. at *15. The retroactive
application of Torres-Garcia to her case forecloses any
possibility she may have had under Perez-Gonzalez to adjust
her status and avoid deportation. “‘There is a clear
difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation.’”
Id. (alterations omitted) (quoting Miguel-Miguel v. Gonzales,
500 F.3d 941, 952 (9th Cir. 2007)).
Finally, the fifth factor favors the government, because
“non-retroactivity impairs the uniformity of a statutory
scheme, and the importance of uniformity in immigration law
is well established.” Id. However, this factor “only leans in
the government’s direction” because the rule established in
Torres-Garcia “does not follow from the plain language of
the statute,” since § 1182(a)(9)(C) and § 1255(i) are
inconsistent, and when read together, ambiguous. Id.
On balance, the majority of the Montgomery Ward factors
favor the government. Accordingly, the BIA did not err in
applying Torres-Garcia retroactively to Carrillo de Palacios.
CARRILLO DE PALACIOS V . HOLDER 13
IV. Exception to Inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C)(ii)
Because Carrillo de Palacios is inadmissible under
8 U.S.C. § 1182(a)(9)(C)(i)(II), and Torres-Garcia applies
retroactively to her, she may only seek adjustment of status
under § 1255(i) if she qualifies under the exception to
inadmissibility set forth in § 1182(a)(9)(C)(ii).
Garfias-Rodriguez, 2012 WL 5077137, at *7; see also
Morales-Izquierdo, 600 F.3d at 1079 (discussing
§ 1182(a)(9)(C)(ii) with respect to § 1182(a)(9)(C)(i)(II));
Gonzales, 508 F.3d at 1231 (same).
We have previously explained the mechanics of
§ 1182(a)(9)(C)(ii): “while residing outside the United
States,” the alien must “appl[y] for and receive[] advance
permission from the Secretary of Homeland Security . . . to
reapply for admission.” Morales-Izquierdo, 600 F.3d at
1079. However, the alien “is not eligible for such advance
permission until ten years have elapsed since his [or her] last
departure from the United States. This is commonly known
as the ‘ten-year bar’ to readmission.” Id. (citation omitted);
see also Gonzales, 508 F.3d at 1231 (“An alien inadmissible
under [§ 1182(a)(9)(C)(i)], however, may seek admission into
the United States if: (1) he has been absent from the United
States more than ten years, and (2) he has received the
consent of the Secretary of Homeland Security to the
application for readmission.”).
Carrillo de Palacios argues that these precedents are
inapposite to her case. She notes that the prior cases involved
petitioners who requested § 1182(a)(9)(C)(ii) relief within ten
years of leaving the United States. E.g., Morales-Izquierdo,
600 F.3d at 1079; Torres-Garcia, 23 I. & N. Dec. at 873. In
14 CARRILLO DE PALACIOS V . HOLDER
her case, by contrast, she “last departed the United States in
1992,” and she filed her application for readmission in 2007,
“more than 10 years after her last departure from the United
States.” (Emphasis in original.)
Even if we agreed with Carrillo de Palacios that the
existing cases constitute dicta with respect to her particular
circumstances, we may not lightly brush aside the reasoning
and analysis contained in an unbroken chain of case law. We,
the BIA, and our sister circuits have all stated that
§ 1182(a)(9)(C)(ii) requires that the alien be “absent from the
United States more than ten years” before applying to the
Secretary. Gonzales, 508 F.3d at 1231.5 Phrased differently,
the alien must “exit the United States and wait ten years
before applying.” Perez-Gonzalez v. Gonzales, 403 F.3d
1116, 1117 (9th Cir. 2005) (Gould, J., dissenting from order
denying motion to reconsider) (internal quotation marks
omitted), cited with approval by Torres-Garcia, 23 I. & N.
Dec. at 875.
Carrillo de Palacios’s argument places undue weight on
one portion of the relevant clause, while ignoring the
5
See also Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir. 2008) (stating
that the alien may only “seek permission to reapply for admission from
outside of the United States after ten years have passed since his most
recent departure from the United States”); Mortera-Cruz v. Gonzales,
409 F.3d 246, 250 n.4 (5th Cir. 2005) (noting that the alien must have
“been outside the United States more than 10 years since his or her last
departure”); Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 885 (10th Cir.
2005) (describing requirement as “an unwaivable ten-year period outside
of the United States”), aff’d, 548 U.S. 30 (2006); Torres-Garcia, 23 I. &
N. Dec. at 875 (noting that the exception applies “‘only after the alien has
been outside the United States for ten years’” (quoting Berrum-Garcia v.
Comfort, 390 F.3d 1158, 1167 (10th Cir. 2004)).
CARRILLO DE PALACIOS V . HOLDER 15
surrounding statutory language. She emphasizes the phrase
“an alien seeking admission more than 10 years after the date
of the alien’s last departure from the United States.” 8 U.S.C.
§ 1182(a)(9)(C)(ii). She last departed in 1992 and filed her
application in 2007, so, according to her reasoning, she
satisfies the requirements of § 1182(a)(9)(C)(ii). But that
clause also requires that the alien must obtain the Secretary’s
consent “prior to the alien’s reembarkation at a place outside
the United States or attempt to be readmitted from a foreign
contiguous territory.” Id. Although the statute is subject to
different interpretations, we conclude that the two sentences
work in tandem: ten years must elapse between the time the
alien “depart[s]” the United States and the time the alien
“reembark[s]” or otherwise returns to the United States. If
ten years must elapse between departure and return, then it
necessarily follows that those ten years must be spent outside
the United States.
Any lingering doubts about § 1182(a)(9)(C)(ii) can be
resolved by examining the legislative scheme as a whole. See
Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60
(2004) (“A provision that may seem ambiguous in isolation
is often clarified by the remainder of the statutory scheme
. . . .” (internal quotation marks omitted)). The BIA has
observed that the underlying purpose of § 1182(a)(9)(C) “was
to single out recidivist immigration violators and make it
more difficult for them to be admitted to the United States
after having departed.” Briones, 24 I. & N. Dec. at 358. We
have deferred to that view as a permissible interpretation of
the statute. Garfias-Rodriguez, 2012 WL 5077137, at *6–*7.
The BIA has added that § 1182(a)(9) generally “seek[s] to
compound the adverse consequences of immigration
violations.” In re Rodarte-Roman, 23 I. & N. Dec. 905, 909
(B.I.A. 2006). By requiring repeat immigration offenders to
16 CARRILLO DE PALACIOS V . HOLDER
pay the penalty of waiting ten years outside the United States
before receiving the privilege of lawful reentry,
§ 1182(a)(9)(C)(ii) promotes Congress’s underlying policy
goals of making admission more difficult for immigration
recidivists.
In light of this legislative policy, we continue to defer to
the BIA’s reasonable decision in Torres-Garcia, upon which
the BIA expressly relied in rejecting Carrillo de Palacios’s
arguments below. See Gonzales, 508 F.3d at 1241–42
(deferring to Torres-Garcia). In Torres-Garcia, the BIA
wrote:
[W]e could not . . . allow an alien to
circumvent the statutory 10-year limitation on
[§ 1182](a)(9)(C)(ii) waivers by simply
reentering unlawfully before requesting the
waiver. After all, it is the alien’s unlawful
reentry without admission that makes
[§ 1182](a)(9)(C)(i) applicable in the first
place. . . . [A]n alien may not obtain a waiver
of the [§ 1182](a)(9)(C)(i) ground of
inadmissibility, retroactively or prospectively,
without regard to the 10-year limitation set
forth at [§ 1182](a)(9)(C)(ii).
23 I. & N. Dec. at 876. This reasoning applies directly to
Carrillo de Palacios’s circumstances. Although ten years
elapsed since she last departed the United States, she
attempted to “circumvent the statutory 10-year limitation . . .
by simply reentering unlawfully” after spending only five
years abroad. Id. She did not satisfy the statutory
requirement that she spend ten years abroad before returning.
CARRILLO DE PALACIOS V . HOLDER 17
Our prior discussions of § 1182(a)(9)(C)(ii) are therefore
correct: the alien must be “absent from the United States
more than ten years” before applying to the Secretary under
§ 1182(a)(9)(C)(ii). Gonzales, 508 F.3d at 1231. This,
Carrillo de Palacios did not do. She departed in 1992 and
returned in 1997, long before the ten-year period had lapsed.
Like the BIA, we conclude that she was required to spend ten
years outside the United States before returning. Having
failed to do so, she does not satisfy the § 1182(a)(9)(C)(ii)
exception to inadmissibility.6
CONCLUSION
Carrillo de Palacios is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II), and does not qualify for the
§ 1182(a)(9)(C)(ii) exception to inadmissibility. The BIA
correctly determined that Carrillo de Palacios is not eligible
for adjustment of status under § 1255(i).
PETITION DENIED.
6
Because we conclude that Carrillo de Palacios failed to satisfy the
statutory requirement that she wait outside the country for ten years, we
refrain from deciding whether an alien who has waited outside the country
for ten years may, under pre-existing agency practice, obtain nunc pro
tunc permission to reapply after having returned to the United States.