Mario Soto-Sosa v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 4, 2005
No. 04-15866 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-030-065
MARIO SOTO-SOSA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(November 4, 2005)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Mario Soto-Sosa, through counsel, petitions this Court for review of the
order of the Bureau of Immigration and Customs Enforcement (“BICE”),
reinstating his prior expedited order of removal, entered pursuant to the
Immigration and Nationality Act (“INA”) § 241(a)(5), 8 U.S.C. § 1231(a)(5).
Soto-Sosa argues on appeal that the BICE erred in issuing this order when Soto-
Sosa had pending a petition for a waiver to reapply for reentry, filed pursuant to 8
C.F.R. § 212.2(E). For the reasons set forth more fully below, we affirm.
On February 10, 2001, Soto-Sosa, a native and citizen of Mexico, entered
the United States without inspection. After agents with the U.S. Border Patrol
detained him, he voluntarily returned to Mexico. On February 11, 2001, Soto-Sosa
again entered the United States and, this time, falsely claimed to be a United States
citizen. The former Immigration and Naturalization Service (“INS”)1 charged
Soto-Sosa with being inadmissible as an alien who falsely represented himself as a
United States citizen to gain admission into the United States, pursuant to INA
§ 212(a)(6)(C)(ii), 8 U.S.C. § 1182(a)(6)(C)(ii), and it ordered him removed that
1
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub.L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new
department. See 6 U.S.C. § 251. The BICE, as part of the DHS, assumed the detention,
removal, enforcement, and investigative functions of the INS. See 6 U.S.C. § 252. However,
because this case was initiated while the INS still was in existence, we will refer to both the
former INS and the BICE.
2
same day pursuant to the expedited removal provisions in INA § 235(b)(1), 8
U.S.C. § 1225(b)(1)(A)(i).2
At the time of Soto-Sosa’s removal, the INS also served him with notice that
he was prohibited from entering, attempting to enter, or being in the United States
for a period of five years from the date of his removal. However, Soto-Sosa
concedes on appeal that, during the same month that he was removed, he reentered
the United States without inspection. In July 2002, Soto’s wife, who was a U.S.
citizen, filed a visa petition on his behalf. Also in July 2002, Soto-Sosa filed an
application for adjustment of status, pursuant to INA § 245(a); 8 U.S.C. § 1255(a).
Moreover, in October 2003, in support of this application for adjustment of status,
Soto-Sosa filed a petition for permission to reapply for admission, pursuant to 8
C.F.R. § 212.2(E).3
On October 19, 2004, when Soto-Sosa appeared for his interview to
determine adjustment of status, Citizen and Immigration Services (“CIS”)
2
Section 1225(b)(1)(A)(i) provides, in relevant part, that, “if an immigration officer
determines that an alien . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) or this
title, the officer shall order the alien removed from the United States without further hearing or
review unless the alien indicates either an intention to apply for asylum under Section 1158 of
this title or a fear of persecution.” See 8 U.S.C. § 1225(b)(1)(A)(i).
3
Soto-Sosa filed this application because, although an alien previously removed from
the United States under the expedited removal proceedings remains inadmissible for a period of
five years, under some circumstances, he can circumvent this rule by gaining the consent of the
U.S. Attorney General. See INA § 212(a)(9)(A)(i) and (iii), 8 U.S.C. § 1182(a)(9)(A)(i) and
(iii). Although this application is only in the record excerpts, and, thus, is not part of the record
on appeal, the government concedes that Soto-Sosa filed it.
3
approved his visa petition. The CIS, however, denied his application for
adjustment of status because he was inadmissible for a period of five years. That
same day, Soto-Sosa was taken into custody and the BICE served him with a
“Notice of Intent/Decision to Reinstate Prior Order,” pursuant to INA § 241(a)(5),
8 U.S.C. § 1231(a)(5). Soto-Sosa responded that he did not wish to make a
statement contesting this determination. On October 20, 2004, the BICE reinstated
Soto-Sosa’s prior removal order without conducting a hearing.
Soto-Sosa then filed a timely petition for review of this order in this Court.
Prior to the parties filing their briefs, we directed them to address the following
jurisdictional questions: (1) “What law governs judicial review in this petition for
review”; (2) “[i]f the permanent rules govern . . . [i]f petitioner seeks judicial
review of the denial of discretionary relief, does INA § 242(a)(2)(B), 8 U.S.C.
§ 1252(a)(2)(B) preclude this Court’s jurisdiction if the BIA did not exercise any
discretion in denying the requested relief”; and (3) “whether the October 19, 2004,
order is a final order of removal subject to judicial review.”4 After Soto-
4
To the extent we questioned whether the permanent or the transitional rules of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009 (1996) (“IIRIRA”), govern this petition for review, Soto-Sosa’s immigration
proceedings commenced after April 1, 1997. Thus, the permanent provisions of the INA, as
amended by the IIRIRA, previously would have been applicable. See Antipova v. U.S. Attorney
General, 392 F.3d 1259, 1264 (11th Cir. 2004). Furthermore, as part of the REAL ID Act of
2005, Pub.L. No. 109-13, 119 Stat. 231, which was signed into law on May 11, 2005, Congress
has provided that a petition that formerly was governed by the transitional rules now “shall be
treated as if it had been filed as a petition for review under section 242 of the Immigration and
Nationality Act (8 U.S.C. § 1252), as amended by this section.” Id., § 106(d). Thus, this
4
Sosa filed a memorandum addressing these jurisdictional questions, and the
government filed a motion to dismiss Soto-Sosa’s motion for lack of jurisdiction,
we ordered that the motion to dismiss be carried with the case.
In response to our jurisdictional questions, Soto-Sosa argues that, because
the CIS did not apply its discretion in denying his application for waiver, our
review is not precluded by § 1252(a)(2)(B). Soto-Sosa also contends that, because
we exercised our jurisdiction in reviewing a similar order reinstating removal in
Sarmiento Cisneros v. U.S. Attorney General, 381 F.3d 1277 (11th Cir. 2004), the
BICE’s reinstatement order in the instant case also should be treated as a “final
order” that is directly reviewable.
The government responds, in a motion to dismiss for lack of jurisdiction,
that a § 1231(a)(5) reinstatement order merely reinstates a previously issued final
order of removal and, thus, itself is a final order of the INS that is reviewable by
this Court under § 1252(a)(2)(B). The government, however, argues that (1) we
may not review the underlying removal order; and (2) our review of the
reinstatement order is limited to determining (a) the identity of the alien,
(b) whether the alien was subject to a prior removal order, and (c) whether the alien
illegally re-entered the United States—all facts that Soto-Sosa has admitted. The
government also contends that, although Soto-Sosa is attempting to challenge the
question is no longer unresolved.
5
order because he had sought relief from removal prior to the court’s issuance of its
reinstatement order, he is not eligible for this relief.
To the extent we ordered the parties to address whether § 1252(a)(2)(B)
precludes our jurisdiction because Soto-Sosa’s argument in his petition for review
involves his application for a waiver to obtain discretionary relief, the government
has failed to address this question. Nevertheless, before we may proceed to the
merits of Soto-Sosa’s petition, we “must first consider whether we have subject
matter jurisdiction to hear the petition at all.” Resendiz-Alcaraz v. U.S. Attorney
General, 383 F.3d 1262, 1266 (11th Cir. 2004). We review subject matter
jurisdiction de novo. Id.Under the IIRIRA, an alien may adjust his status to legal permanent resident
status 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 application is filed.
INA § 245(a); 8 U.S.C. § 1255(a). Pursuant to 8 U.S.C. § 1252(a)(2)(B), “no court
shall have jurisdiction to review – (i) any judgment regarding the granting of relief
under . . . [§] 1255 of this title . . ..” INA § 242(a)(2)(B)(i), 8 U.S.C.
§ 1252(a)(2)(B)(i). Because this case involves an application for adjustment of
status under § 1255(a), this jurisdictional bar is implicated.
6
Nevertheless, although § 1252(a)(2)(B) generally precludes appellate review
of discretionary decisions, it “does not preclude review of non-discretionary legal
decisions that pertain to statutory eligibility for discretionary relief.” Gonzalez-
Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1332 (11th Cir. 2003).
Moreover, we retain jurisdiction over constitutional claims and questions of law
raised in a petition of review. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) (as
amended by the REAL ID Act of 2005). Because Soto-Sosa is petitioning for
review of the BICE’s order reinstating his prior expedited order of removal, instead
of the denial of his request to adjust his status, and because the denial of his
application for adjustment of status was based on his statutory ineligibility, the
jurisdiction-stripping provision of § 1252(a)(2)(B) is not applicable here.
To the extent we also ordered the parties to address whether the BICE’s
reinstatement order is a “final order of removal” that is reviewable by this Court
under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1), we have not previously addressed
this question.5 However, in the context of determining whether a BIA
determination that denied an applicant asylum and withholding of removal, but did
not expressly order removal of the applicant in asylum-only proceedings, was a
“final order of removal” for purposes of jurisdiction, we recently concluded that
5
As Soto-Sosa asserts, in Sarmiento Cisneros, we examined the retroactive effect of
reinstatement provisions in § 1231(a)(5), but we did not explicitly discuss the basis for our
jurisdiction. See generally Sarmiento Cisneros, 381 F.3d at 1278-85.
7
we had jurisdiction. See Nreka v. U.S. Attorney General, 408 F.3d 1361, 1367
(11th Cir. 2005). In doing so, we reasoned that the denial of asylum was closely
tied to the removal of the alien. See id. Similarly, we concluded in Del Pilar v.
U.S. Attorney General, 326 F.3d 1154 (11th Cir. 2003), that a BIA decision
reversing the Immigration Judge’s grant of a waiver of inadmissibility under INA
§ 212(c) was a final order of removal because there was nothing left for the
petitioner to appeal. See id. at 1156-57.
The statute governing the reinstatement order on appeal includes that the
prior order “is not subject to being reopened or reviewed,” and that the individual
subject to the order “is not eligible and may not apply for any relief under this
chapter.” See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Moreover, this statute
provides no provisions for administrative review. See generally id. Thus, similar
to the facts in Del Pilar, a petitioner subject to a reinstatement order has nothing
left to appeal. See Del Pilar, 326 F.3d at 1156-57. In addition, as persuasive
authority, the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits
have concluded that reinstatement orders are “final orders of removal” that are
reviewable under § 1252(a)(1). See Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir.
2003); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001); Ojeda-
Terrazas v. Ashcroft, 290 F.3d 292, 294-95 (5th Cir. 2002); Behjjani v. INS, 271
F.3d 670, 674 (6th Cir. 2001); Lopez-Flores v. Dept. of Homeland Security, 387
8
F.3d 773, 774 (8th Cir. 2004); Castro-Cortez v. INS, 239 F.3d 1037, 1043-44 (9th
Cir. 2001); and Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir.
2003). Thus, the order reinstating Alvarez’s expedited order of removal is a “final
order of removal” for purposes of § 1252(a) jurisdiction. We, therefore, deny the
government’s motion to dismiss for lack of jurisdiction.
Examining the merits of Soto-Sosa’s petition, he asserts that the BICE erred
in issuing the reinstatement order because he had applied for permission to reapply
for reentry, pursuant to 8 C.F.R. § 212.2(E). Citing to the Ninth Circuit’s opinion
in Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 788 (9th Cir. 2004), Soto-Sosa
contends that he had applied for a discretionary waiver to reapply for reentry
before his prior removal order was reinstated, and that, had this application for a
discretionary waiver been granted, it would have cured any inadmissibility grounds
premised on his prior removal or subsequent illegal reentry.6
We review de novo the interpretation of a statute by the agency that
administers it. Sarmiento Cisneros, 381 F.3d at 1279-80 (citing Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782,
81 L.Ed.2d 694 (1984)). When a statute is unambiguous, we “give[s] overriding
6
In challenging the BICE’s order reinstating his expedited order of removal, Soto-Sosa
is not challenging the constitutionality of, or the regulations governing, the reinstatement statute.
Thus, we deem any such arguments abandoned. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1283
n.12 (11th Cir. 2001) (concluding that the petitioners abandoned an issue by failing to raise it in
their initial appellate brief).
9
deference to [its] unambiguous language.” Napier v. Preslicka, 314 F.3d 528, 532
(11th Cir. 2002). We “begin with the language Congress has chosen and assume
that the words used are intended to carry their ordinary meaning.” Assa’ad v. U.S.
Attorney General, 332 F.3d 1321, 1329 (11th Cir. 2003). On the other hand, if a
statute’s language is ambiguous, we ordinarily defer to a reasonable interpretation
by the agency administering it. Sarmiento Cisneros, 381 F.3d at 1280.
As discussed above, the reinstatement statute provides for the reinstatement
of an order of removal as to any alien who has reentered the United States illegally.
It specifically includes:
If the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief
under this chapter, and the alien shall be removed under the prior
order at any time after the reentry.
8 U.S.C. § 1231(a)(5).7
We have not addressed whether aliens subject to § 1231(a)(5)’s bar to relief
may, nevertheless, seek and receive adjustment of status, pursuant to INA § 245(a),
7
As discussed above, Congress recently provided as part of the REAL ID Act, that,
despite the sweeping language of the IIRIRA’s bar on judicial review, nothing in the Act “shall
be construed as precluding review of constitutional claims and questions of law raised upon a
petition for review filed with an appropriate court of appeals . . . .” See INA § 242(a)(2)(D), 8
U.S.C. § 1252(a)(2)(D) (as amended by the REAL ID Act., § 106(a)(1)(A)(iii)). However, this
new legislation has not affected the reinstatement statute.
10
8 U.S.C. § 1255(a). Indeed, we only have interpreted § 1231(a)(5) to the extent we
have decided that (1) Congress did not unambiguously express its intent regarding
the temporal scope of the statute; and (2) the application of the statute to a
petitioner, who had reentered the United States and applied for relief before the
effective date of the IIRIRA, produced an impermissible retroactive effect. See
Sarmiento Cisneros, 381 F.3d at 1285.
Other circuits, however, have concluded, at least when retroactivity is not a
factor, that the reinstatement statute precludes aliens subject to reinstatement from
obtaining adjustment of status, pursuant to INA § 245, 8 U.S.C. § 1255. See
Lattab v. Ashcroft, 384 F.3d 8, 16-17 (1st Cir. 2004); Warner v. Ashcroft, 381 F.3d
534, 540 (6th Cir. 2004); Gomez-Chavez v. Perryman, 308 F.3d 796, 801-03 (7th
Cir. 2002); Flores v. Ashcroft, 354 F.3d 727, 730-31 (8th Cir. 2003); Padilla v.
Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003); Berrum-Garcia v. Comfort, 390 F.3d
1158, 1164 n.7 (11th Cir. 2004). In reaching their conclusions, the Ninth and
Tenth Circuits explained that, if Congress had intended to allow a class of illegally
reentering aliens to escape the reinstatement statute’s clearly written bar on “any
relief,” it would have stated so. See Padilla, 334 F.3d at 925; see also Berrum-
Garcia, 390 F.3d at 1164 n.7 (same). Moreover, as discussed above, we implicitly
determined that this preclusion exists when we evaluated whether the preclusive
effect of the reinstatement statute should be applied retroactively. See Sarmiento
11
Cisneros, 381 F.3d at 1279-80; see also Arevalo v. Ashcroft, 344 F.3d at 5 (same);
Velasquez-Gabriel, 263 F.3d at 109-10 (same); Ojeda-Terrazas, 290 F.3d at 301-02(same).
To the extent Soto-Sosa is relying on Perez-Gonzalez, the Ninth Circuit
concluded in Perez-Gonzalez that the appeal was distinguishable from Padilla
because, unlike the alien in Padilla, the alien in Perez-Gonzalez had applied for a
discretionary waiver to reapply for reentry, pursuant to 8 C.F.R. § 212.2(e), before
his prior deportation order had been reinstated. Perez-Gonzalez, 379 F.3d at 788.
The Perez-Gonzalez court discussed that (1) § 212.2(e) would have offered the
alien a means of avoiding the need to circumvent § 1231(a)(5)’s bar to
discretionary relief; (2) given that the alien applied for the waiver before his
deportation order was reinstated, he was not yet subject to § 1231(a)(5)’s bar on
applying for relief; and (3) had the Attorney General exercised his discretion in the
alien’s favor, the alien no longer would have been subject to reinstatement. Id.
Moreover, the court discussed that (1) the INS erred when it concluded that the
alien could not apply for a § 212(e) waiver from within this country; and (2) the
alien’s grounds of inadmissibility either could be cured by the § I-212(e) waiver, or
they would not bar adjustment of status. Id. at 788-95. The Perez-Gonzalez court,
thus, concluded that the INS legally erred by denying the alien’s application for
adjustment of status on the ground that it was barred by § 1231(a)(5), and it
12
remanded the case to the CIS for a discretionary determination of the I-212(e)
waiver. Id. at 795-96.
As other circuits have explained, however, the Ninth Circuit’s decision in
Perez-Gonzalez arguably rests on a misinterpretation of § 1231(a)(5). In Lattab,
the First Circuit discussed that, when Congress enacted the IIRIRA, “it plainly was
dissatisfied with the performance of the former reinstatement provision,” and it
“believed that the reinstatement regime should be . . . reformed to function swiftly
and promptly.” Lattab, 384 F.3d at 19 (citing S. Rep. 104-249 at 7 (1995) (“Aliens
who violated U.S. Immigration Law should be removed from this country as soon
as possible”); H.R.Rep. No. 104-469, pt. 1 at 134 (1996) (labeling pre-IIRIRA
reinstatement procedures “cumbersome and duplicative,” and predicting that
IIRIRA would correct these problems)).8
The Lattab court also concluded that the petitioner’s argument, that
§ 1231(a)(5)’s bar to relief was not applicable because he applied for adjustment of
status before the government actually reinstated the prior order of deportation, was
8
The First Circuit explained in Lattab that, prior to the enactment of the IIRIRA,
(1) only illegal reentrants who previously had been deported on certain specified grounds (e.g.,
conviction for an aggravated felony) were subject to having their original deportation orders
reinstated; (2) an illegal reentrant had a right to a hearing, presided over by an immigration
judge, before reinstatement; and (3) an illegal reentrant could petition fro discretionary relief in
the form of an adjustment of status to that of an alien lawfully admitted for permanent residence.
See Lattab, 384 F.3d at 12-13.
13
foreclosed by the text of the statute. Lattab, 384 F.3d at 16. The First Circuit
specifically determined that:
Section 241(a)(5) subjects an illegal reentrant to three independent
consequences: reinstatement of the prior deportation order,
ineligibility for any relief, and removal. Grammatically, section
241(a)(5) does not make ineligibility for relief dependent upon
reinstatement of the prior deportation order. And even if it did,
section 241(a)(5) expressly makes reinstatement retroactive to the date
of the original deportation order.
Id. Moreover, although the First Circuit concluded that the petitioner had waived
any reliance on Perez-Gonzalez by failing to cite to it in his initial brief, the First
Circuit noted that it “ha[d] grave doubts about the correctness of the Perez-
Gonzalez court’s conclusion” because (1) “permission to reenter, like adjustment
of status, is relief under the INA, which section 241(a)(5) precludes an illegal
reentrant from seeking”; and (2) the Ninth Circuit relied too heavily on regulations
that predated the IIRIRA. Id. at 16-17.
The Tenth Circuit in Berrum-Garcia also disagreed with the Ninth Circuit’s
reasoning and decision in Perez-Gonzalez, explaining that:
Section 1231(a) states not only that an illegal reentrant ‘may not
apply’ for relief, but also that he is ‘not eligible’ for relief. Once
Petitioner’s prior removal order has been reinstated, he no longer
qualifies for any relief under the INA, regardless of whether his
applications for relief were filed before or after the reinstatement
decision is made. The timing of Petitioner’s applications is simply
immaterial.
14
Berrum-Garcia, 390 F.3d at 1163. The Tenth Circuit further explained that its
interpretation of the reinstatement statute was supported by Congress’s subsequent
amendments to the Legal Immigration Family Equity Act (“LIFE Act”), Pub.L.
No. 106-554, 114 Stat. 2763 (2000).9 Berrum-Garcia, 390 F.3d at 1164. The
Tenth Circuit, similar to the First Circuit in Lattab, also concluded as a matter of
statutory interpretation that § 1231(a)(5) bar to “any relief” applied to I-212
requests for permission to reapply for admission to the United States. Id. at 1164-
65.
In any event, as the government contends, we need not determine whether
aliens subject to § 1231(a)(5)’s bar to relief may seek and receive adjustment of
status, whether it is sought before or after the reinstatement order issues, because
Soto-Sosa was not eligible for adjustment of status. As discussed above, a non-
immigrant seeking to adjust his status to legal permanent resident status must
show, among other things, that he “is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence.” See INA § 245(a); 8
U.S.C. § 1255(a). An alien, such as Soto-Sosa, who “falsely represents, or has
falsely represented himself or herself to be a citizen of the United States for any
9
The LIFE Act provides the Attorney General with the authority to waive
inadmissibility under § 1182(a)(9)(A) and (a)(9)(C) for an alien applying for adjustment of status
under § 202 of the Nicaraguan and Central American Relief Act and § 902(a) of the Haitian
Refugee Immigration Fairness Act of 1998. See Pub.L. No. 106-554, 114 Stat. 2763 (2000).
15
purpose of benefit under this Act . . . is inadmissible.” See INA § 212(a)(6)(C)(ii),
8 U.S.C. § 1182(a)(6)(C)(ii). Moreover, § 1182(a)(6)(C)(ii) is a non-waivable
ground of inadmissibility. See INA §§ 212(a)(6)(C)(iii) & (i), 8 U.S.C.
§§ 1182(a)(6)(C)(iii) &1182(i) (limiting the Attorney General’s discretionary
waiver to inadmissibility under § 1182(a)(6)(C)(i)—the inadmissibility ground
applicable for fraudulent or willful misrepresentation of a material fact for
immigration purposes).10 Thus, contrary to Soto-Sosa’s argument, he was
ineligible for a waiver, pursuant to § 1182(a)(9)(A)(i) and (iii), and, therefore,
ineligible for adjustment of status, pursuant to § 1255(i).
Accordingly, we conclude that the BICE’s order reinstating Soto-Sosa’s
prior expedited order of removal was not erroneous, regardless of whether aliens
subject to the reinstatement act’s bar to relief may seek and receive adjustment of
status. We, therefore, deny Soto-Sosa’s petition for review.
PETITION DENIED.
10
In contrast, the alien at issue in Perez-Gonzalez was inadmissible under INA
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (alien present without admission or parole); INA
§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) (misrepresentation); and INA § 212(a)(9)(A), (B),
and (C), 8 U.S.C. § 1182(a)(9)(A), (B), (C) (alien previously removed) —grounds of
inadmissibility that the Ninth Circuit determined could be cured by I-212(e) waiver or would not
bar adjustment of status. See Perez-Gonzalez, 379 F.3d at 790-95.
16