Gustavo Nunez-Moron v. Eric Holder

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2317
G USTAVO N UNEZ-M ORON,
Petitioner,
v.
E RIC H. H OLDER, Jr., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A096-069-584
A RGUED S EPTEMBER 20, 2012—D ECIDED O CTOBER 30, 2012
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
M ANION, Circuit Judge. Gustavo Nunez-Moron, a
citizen of Mexico, sought cancellation of removal,
waiver of inadmissibility, and adjustment of status
based on alien-relative petitions from his wife, a
United States citizen, and his father, a legal permanent
resident. Concluding that Nunez was inadmissible
2 No. 11-2317
because he had re-entered the United States after previ-
ously being removed, the Immigration Judge and the
Board of Immigration Appeals denied his applications.
Nunez now petitions this court for review. Because
Nunez’s allegations of error lack merit, we deny his
petition.
I. Background
Nunez illegally entered the United States in 1992. In
1997, Nunez’s father filed an I-130 Petition for Alien
Relative on Nunez’s behalf.1 The petition was approved
the following year. On September 15, 1999, Nunez
was convicted in state court of misdemeanor battery
pursuant to California Penal Code § 242. He was sen-
tenced to time served, that is, fifteen days in jail, and
three years’ probation. The sentencing court also
imposed a fine and required Nunez to receive domestic-
violence counseling.
Nunez contends that, on the date of his conviction, he
was illegally removed to Mexico pursuant to an ex-
pedited removal order. See 8 U.S.C. § 1228 (expedited
removal of criminal aliens). Nunez’s conviction docu-
1
An I-130 petition is the first step for an alien relative seeking
adjustment of status. See 8 U.S.C. § 1151(b)(2)(A)(i); 8 C.F.R.
§ 204.1(a)(1). If approved, the petition permits an illegally
present alien to remain in the country and request an adjust-
ment of status. Afzal v. Holder, 559 F.3d 677, 678 (7th Cir.
2009) (citing 8 U.S.C. § 1255(a), and 8 C.F.R. § 245.2).
No. 11-2317 3
ments, though, do not indicate that he was turned over
to immigration officers. The record only shows that
Nunez was subjected to an expedited removal order
about a week later, when on September 24, 1999, he
attempted to enter the United States at the Mexico-Califor-
nia border. On that date, Nunez approached the border
with an I-551 resident-alien card bearing the name
“Enrique Mendoza-Gutierrez,” which he had purchased
in Mexico. He was detained and questioned by the Im-
migration and Naturalization Service (“INS”). Nunez
told the interrogating officer that his name was “Roberto
Mendez-Munoz.” Under oath, Nunez stated that the
resident-alien card did not belong to him and that he
knew it is illegal to enter the United States with
false identification. Nunez admitted that he lacked
legal documentation permitting him to enter or reside
in the United States. Nunez also stated that he did not
have any immigration applications pending, that he
previously had never been in the United States, and
that he had never been removed or deported. The
officer concluded that Nunez—whom the officer still
believed to be Mendez-Munoz 2 —was inadmissible, and
removed him from the United States pursuant to an
expedited removal order. See 8 U.S.C. § 1225(b)(1) (expe-
dited removal of inadmissible arriving aliens); 8 U.S.C.
§ 1182(a)(6)(C)(i) (attempted admission by fraud),
(a)(7)(A)(i)(I) (attempted admission without valid entry
2
Nunez admitted using the pseudonym “Mendez-Munoz”
when he filed his applications for asylum and withholding
of removal some years later.
4 No. 11-2317
documents). As part of the expedited removal process,
Nunez was informed that he could not re-enter the
United States for five years, and that attempting to do so
could subject him to criminal penalties.
Nonetheless, Nunez re-entered the United States
on December 1, 1999. Subsequently, Nunez filed appli-
cations for asylum, withholding of removal, and pro-
tection under the Convention Against Torture. The INS
then filed a Notice to Appear with the immigration
court in Los Angeles, California, and alleged that
Nunez was removable. Nunez appeared with counsel
before an Immigration Judge (“IJ”) in Los Angeles, ad-
mitted the factual allegations in the Notice to Appear,
and conceded removability. Nunez also withdrew his
applications for asylum, withholding of removal, and
protection under the Convention Against Torture.
Instead, Nunez petitioned the IJ for cancellation of
removal or, alternatively, voluntary departure. The IJ
concluded that Nunez was not eligible for cancellation
of removal because, in light of the September 24
expedited removal, he had not remained physically
present in the United States for ten years prior to the
date of his application. See 8 U.S.C. § 1229b(b)(1). Conse-
quently, the IJ granted Nunez’s alternative request
for voluntary departure.
Nunez appealed the IJ’s decision to the Board. Before
the Board ruled, however, Nunez moved to reopen his
removal proceedings because his wife had become a
United States citizen and had filed an I-130 petition on
No. 11-2317 5
his behalf.3 Without opposition from the Department
of Homeland Security (“DHS”), the Board granted
Nunez’s motion and remanded.
Nunez subsequently moved to Illinois, and the IJ
granted Nunez’s request to transfer his removal pro-
ceedings to Chicago, Illinois. After a hearing, the IJ
in Chicago issued a written decision reinstating the
earlier denial of cancellation of removal. In addition,
the IJ held that Nunez was ineligible for adjustment
of status because he had illegally re-entered the
United States after previously being removed under
§ 1225(b)(1). See 8 U.S.C. § 1182(a)(9)(C)(i)(II). Finally,
the IJ noted that, although the DHS had not reinstated
Nunez’s September 24 expedited removal order, the
order still might preclude his request for adjustment of
status. See 8 U.S.C. § 1231(a)(5).
On appeal, the Board initially remanded because the
record was misplaced. At a subsequent hearing, the
IJ recounted the procedural posture of the removal pro-
ceedings and, without objection from Nunez, reissued
his prior decision. After briefing, the Board issued
a written decision dismissing Nunez’s appeal. The
Board rejected Nunez’s argument that, despite having
illegally re-entered the United States, he could petition
for adjustment of status under 8 U.S.C. § 1255(i). The
Board also held that Nunez was ineligible for adjust-
3
Nunez married after his removal proceedings began. He
and his wife have three children, each of whom is a United
States citizen.
6 No. 11-2317
ment of status because of his September 24 expedited
removal order—even though the order never had been
reinstated by the DHS. Finally, the Board agreed that
Nunez was ineligible for cancellation of removal be-
cause he had not remained physically present in the
United States for ten years prior to the date of his can-
cellation application. The Board ordered Nunez re-
moved. He now seeks review by this court.
II. Discussion
Nunez contends that the Board erred in holding
that he was ineligible for adjustment of status under
§ 1182(a)(9)(C)(i)(II) because he illegally re-entered the
United States after his expedited removal. Nunez also
challenges the Board’s alternate conclusion that his Sep-
tember 24 expedited removal bars his request for ad-
justment of status. Finally, Nunez argues that the Board
erred in finding that he had not remained physically
present in the United States for ten years prior to the
date of his cancellation application.
A. Nunez’s Prior Removal and Re-Entry Make Him
Ineligible for Adjustment of Status
Nunez argues that he is not inadmissable under
§ 1182(a)(9)(C)(i)(II) because § 1255(i) “otherwise
provide[s]” that he is admissible—or, at least, that he
No. 11-2317 7
may seek adjustment of status. 4 See 8 U.S.C. § 1182(a)
(“Except as otherwise provided in this chapter, aliens who
are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted
to the United States . . . .”) (emphasis added). Alternatively,
Nunez argues that, at a minimum, there is a statutory
conflict between § 1182(a)(9)(C)(i)(II) and § 1255(i). Conse-
quently, according to Nunez, § 1255(i) controls over
§ 1182(a)(9)(C)(i)(II) because it is the more recently
enacted statute.
The Board has rejected these arguments and held that
an alien may not adjust his status under § 1255(i) if he
is inadmissible under either § 1182(a)(9)(C)(i)(I) or
§ 1182(a)(9)(C)(i)(II).5 See In re Briones, 24 I. & N. Dec.
355 (BIA 2007); In re Torres-Garcia, 23 I. & N. Dec. 866
(BIA 2006). Other circuits have uniformly deferred to
Briones and Torres-Garcia when considering the interplay
between § 1182(a)(9)(C) and § 1255(i). See, e.g., Carrillo de
Palacios v. Holder, 662 F.3d 1128, 1132-34 (9th Cir. 2011);
Sarango v. Attorney Gen. of U.S., 651 F.3d 380, 387 (3d Cir.
4
Section 1255(i) applies to certain aliens who are physically
present in the United States but who entered illegally.
Under § 1255(i), an eligible alien “may apply to the Attorney
General for the adjustment of his or her status to that of an
alien lawfully admitted for permanent residence.” Nunez
relies upon the I-130 petition filed by his father on his behalf,
and approved prior to his September 24 expedited removal.
5
Section 1182(a)(9)(C)(i)(I) is not substantively distinct from
§ 1182(a)(9)(C)(i)(II) for the purposes of applying § 1255(i). See
In re Briones, 24 I. & N. Dec. at 367.
8 No. 11-2317
2011).6 In dicta, we have agreed that Briones and Torres-
Garcia are entitled to deference. See Lemus-Losa v. Holder,
576 F.3d 752, 760 (7th Cir. 2009). Recently, we elevated that
dicta to a holding in Gonzalez-Balderas v. Holder, 597 F.3d
869, 870 (7th Cir. 2010). Nunez does not identify any
compelling reason to re-visit this precedent, and we de-
cline to do so. See McClain v. Retail Food Emp’rs Joint
Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005) (“We re-
quire a compelling reason to overturn circuit precedent.”).7
6
See also Garfias-Rodriguez v. Holder, 649 F.3d 942, 944-49 (9th
Cir. 2011); Padilla-Caldera v. Holder, 637 F.3d 1140, 1147-53 (10th
Cir. 2011); Renteria-Ledesma v. Holder, 615 F.3d 903, 908-09 (8th
Cir. 2010); Ramirez v. Holder, 609 F.3d 331, 334-37 (4th Cir.
2010); Mora v. Mukasey, 550 F.3d 231, 237-39 (2d Cir. 2008);
Ramirez-Canales v. Mukasey, 517 F.3d 904, 907-10 (6th Cir.
2008); Delgado v. Mukasey, 516 F.3d 65, 70-74 (2d Cir. 2008);
Gonzales v. DHS, 508 F.3d 1227, 1241-42 (9th Cir. 2007); cf.
Mortera-Cruz v. Gonzales, 409 F.3d 246, 256 (5th Cir. 2005)
(deferring to an unpublished Board decision holding that
an alien inadmissible under § 1182(a)(9)(C)(I) is not eligible
for adjustment of status under § 1255(i)). Nunez cites two
pre-Briones decisions holding that inadmissibility under
§ 1182(a)(9)(C)(i)(I) does not bar an alien from seeking relief
pursuant to § 1255(i). Padilla-Caldera v. Gonzales, 453 F.3d 1237,
1241-44 (10th Cir. 2006); Acosta v. Gonzales, 439 F.3d 550, 554-
56 (9th Cir. 2006). Both decisions have been abandoned in
deference to Briones and Torres-Garcia. See Padilla-Caldera v.
Holder, 637 F.3d at 1153; Garfias-Rodriguez, 649 F.3d at 947-49.
7
In his reply brief, Nunez argues that Zadvydas v. Davis, 533
U.S. 678 (2001), provides a compelling reason to reject Briones
(continued...)
No. 11-2317 9
Nunez also attempts to distinguish these decisions
based on his claim that he was removed illegally on
September 15, 1999. However, the record contains no
evidence that Nunez was subjected to an expedited
removal order on September 15. And Nunez does not
challenge the September 24 expedited removal order
as improper in itself. Moreover, Nunez’s argument
would amount to a collateral attack on the legality of
his purported September 15 removal, and we would
lack jurisdiction to review such a challenge. 8 U.S.C.
§ 1252(a)(2)(A); Khan v. Holder, 608 F.3d 325, 328-31 (7th
Cir. 2010).
Finally, Nunez argues that, even if he were inadmis-
sible pursuant to § 1182(a)(9)(C)(i)(II), he nonetheless
would be eligible to request waiver of this inadmissi-
bility by petitioning the Attorney General—by means of
a nunc pro tunc petition—to retroactively consent to his
§ 1255(i) application for adjustment of status. See 8 C.F.R.
7
(...continued)
and Torres-Garcia. In Zadvydas, the Supreme Court concluded
that aliens held in detention after being ordered removed
have due process rights and, consequently, are entitled to
commence habeas corpus actions. Id. at 682, 693. Because
Zadvydas—which predates Briones, Torres-Garcia, and Gonza-
lez-Balderas—does not address the issues raised in this ap-
peal, it does not provide a compelling reason to revisit
our precedent. Regardless, Nunez’s argument is waived.
Broaddus v. Shields, 665 F.3d 846, 854 (7th Cir. 2011)
(“[A]rguments raised for the first time in a reply brief
are waived.”).
10 No. 11-2317
§ 212.2(e). In Torres-Garcia, the Board considered this
argument and held that an alien is not eligible for relief
via a nunc pro tunc petition if such relief would
avoid § 1182(a)(9)(C)’s ten-year bar on waivers of inad-
missibility. 23 I. & N. Dec. at 873-76. In Gonzalez-Balderas,
we also entertained this argument and deferred to Torres-
Garcia.8 597 F.3d at 870. As stated above, we will not
8
Nunez argues that we should reconsider our deference to
Torres-Garcia’s holding respecting nunc pro tunc petitions
because the Board did not take into account the Violence
Against Women Act (“VAWA”), which was enacted twenty-one
days before Torres-Garcia was decided. Pub. L. No. 109-162, 119
Stat. 2960 (enacted Jan. 5, 2006). As enacted, § 813(b) of the
VAWA provided that “[t]he Secretary of Homeland Security,
the Attorney General, and the Secretary of State shall continue
to have discretion to consent to an alien’s reapplication for
admission after a previous order of removal, deportation,
or exclusion.” Nunez argues that this language shows that
Congress intended that the Attorney General continue to
have the authority to grant nunc pro tunc petitions pursuant
to regulation § 212.2. This expression of congressional intent,
according to Nunez, undermines the Board’s determination
that § 212.2 only implemented “statutory provisions that
were repealed by the [Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996].” 23 I. & N. Dec. at 875.
Nunez’s argument provides no basis for abandoning our
deference to Torres-Garcia because the Board held that, even
if regulation § 212.2 did apply to § 1182(a)(9)(C)(i)(II), the
unambiguous language of § 1182(a)(9)(C)(i)(II) still would
preclude an alien like Nunez from seeking relief via a nunc pro
tunc petition. 23 I. & N. Dec. at 875; see also Delgado, 516 F.3d
(continued...)
No. 11-2317 11
revisit this precedent here.
In sum, the Board correctly held that § 1182(a)(9)(C)(i)(II)
precludes Nunez from petitioning for an adjustment
of status pursuant to § 1255(i) or seeking a retroactive
waiver of inadmissibility pursuant to regulation § 212.2(e).
Because we affirm the Board’s decision on these
grounds, we need not—and do not—consider whether the
Board erred in also holding that § 1231(a)(5)9 bars Nunez
from seeking an adjustment of status even though his
September 24 expedited removal order had not been
reinstated by the DHS when the Board issued its ruling.1 0
8
(...continued)
at 73 (finding § 813(b) irrelevant to inadmissibility under
§ 1182(a)(9)(C)(i)(II) because Congress removed § 813(b) on
August 12, 2006).
9
Section 1231(a)(5) provides:
If the Attorney General finds that an alien has reentered
the United States illegally after having been removed . . .
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.
10
The DHS reinstates a prior removal order via Form I-871. See
Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 801 (7th Cir. 2005).
While this appeal was pending, the DHS moved to reopen
and dismiss the removal proceedings against Nunez based on
its intent to reinstate Nunez’s September 24 expedited removal
order. The DHS motion referenced an unexecuted Form
(continued...)
12 No. 11-2317
B. Nunez’s Expedited Removal Severed His Physical
Presence in the United States
Nunez also contends that the Board erred in holding
that he was ineligible for cancellation of removal pursuant
to § 1229b(b)(1). The cancellation of removal statute
requires, inter alia, that an alien “has been physically
present in the United States for a continuous period of
not less than 10 years immediately preceding the date”
of his application. 8 U.S.C. § 1229b(b)(1)(A). Generally, a
period of absence from the United States that lasts 90 days
or less will not sever an alien’s physical presence. See
8 U.S.C. § 1229b(d)(2) (“An alien shall be considered to
have failed to maintain continuous physical presence
in the United States . . . if the alien has departed from
the United States for any period in excess of 90 days . . . .”).
The Board did not apply the 90-day rule, but instead
concluded that Nunez’s September 24 expedited re-
moval order severed his physical presence. Nunez
counters that his physical presence was not severed
because his September 24 removal was the result of his
illegal September 15 removal, and he was not absent
from the United States for more than 90 days.
10
(...continued)
I-871. The Board denied the motion to reopen. It is unclear
whether the DHS ever executed a Form I-871 vis-à-vis
Nunez. Even if the DHS eventually did reinstate Nunez’s
September 24 expedited removal order, we need not address
the effect of that belated decision because we affirm on
other grounds.
No. 11-2317 13
Although cancellation of removal is discretionary
and we lack jurisdiction to review the denial of discre-
tionary relief, we can review the Board’s finding that
Nunez did not satisfy the physical-presence require-
ment. Reyes-Sanchez v. Holder, 646 F.3d 493, 496 (7th Cir.
2011). Under Board precedent, Nunez’s September 24
expedited removal order severed his continuous physical
presence in the United States. See In re Avilez-Nava, 23 I.
& N. Dec. 799, 805 (BIA 2005) (“[W]e hold that an im-
migration official’s refusal to admit an alien at a land
border port of entry will not constitute a break in the
alien’s continuous physical presence, unless there is
evidence that the alien was formally excluded or made
subject to an order of expedited removal . . . .”); In re
Romalez-Alcaide, 23 I. & N. Dec. 423, 424 (BIA 2002) (“[A]
departure that is compelled under threat of the institu-
tion of deportation or removal proceedings is a break
in physical presence.”). Nunez’s effort to avoid this
precedent is premised on his factual assertion that he
was illegally removed on September 15. As explained
above, the record does not support that claim; rather,
the evidence shows that Nunez was subjected to an
expedited removal order only on September 24.
We, along with numerous other circuits, have deferred
to Romalez-Alcaide. See Reyes-Sanchez, 646 F.3d at 498
(collecting cases). Furthermore, the First and Ninth
circuits have held—based on Avilez-Nava—that an expe-
dited removal order severs an alien’s continuous
physical presence in the United States. Vasquez v. Holder,
635 F.3d 563, 567-70 (1st Cir. 2011); Juarez-Ramos v. Gonzales,
485 F.3d 509, 511-12 (9th Cir. 2007). We find the First
14 No. 11-2317
and Ninth circuits’ analyses persuasive, and see no
reason to reiterate them here. Suffice to say, if a
departure under the threat of removal severs an alien’s
continuous physical presence, then a fortiori an actual
removal, albeit expedited in nature, also severs an
alien’s continuous physical presence. Consequently,
the Board correctly held that Nunez’s September 24
expedited removal order terminated his continuous
presence in the United States. Without continuous pres-
ence, Nunez did not qualify for cancellation of removal.
III. Conclusion
For the foregoing reasons, we affirm the decision of
the Board of Immigration Appeals, and deny Gustavo
Nunez-Moron’s petition for review.
10-30-12