United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2573
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Carlos Villanueva, *
*
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board of
* Immigration Appeals.
Eric H. Holder, Jr., Attorney *
General of United States, *
*
Respondent. *
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Submitted: March 11, 2010
Filed: August 5, 2010
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
The Department of Homeland Security (DHS) initiated removal proceedings
against Carlos Villanueva when he filed an application for adjustment of status
pursuant to § 245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i).
DHS denied Villanueva's application, and removal proceedings commenced. At a
hearing before the immigration judge (IJ), Villanueva argued that he should be eligible
to renew his application to adjust status to become a lawful permanent resident. The
IJ found Villanueva ineligible to adjust status. The Board of Immigration Appeals
("Board") affirmed. On appeal, Villanueva challenges this determination and, in the
alternative, requests equitable tolling and nunc pro tunc relief. For the reasons stated
below, we deny Carlos Villanueva's petition for review.
I. Background
Villanueva is a citizen of Mexico and is the beneficiary of an approved
immigrant visa petition that his wife, who is a United States citizen, filed. Villanueva
first entered the United States, without inspection, in October 1989. He has been in
the United States since that time, except for a ten-month period from January until
October 2000 when he left for an immigrant visa appointment.
The present removal proceedings were triggered when Villanueva filed an
application for adjustment of status pursuant to § 245(i) of the INA, which was denied
on October 21, 2003. DHS deemed Villanueva not admissible for adjustment of status
under § 1255(i)(2)(A)1 because he was subject to removal under (1) INA
§ 212(a)(6)(A)(1), §1182(a)(6)(A)(i), as an alien present in the United States without
being admitted or paroled; (2) INA § 212(a)(9)(C)(i)(I), § 1182(a)(9)(C)(i)(I), for
reentry without inspection after being unlawfully present in the United States for more
than one year; and (3) INA § 212(a)(1)(A)(iv), § 1182(a)(1)(A)(iv), for being a drug
abuser or addict. Villanueva admitted the first two charges but denied the third, which
the government ultimately dropped.
In opposition, Villanueva argued that the two admitted grounds for removal did
not disqualify him for adjustment of status notwithstanding the "admissible" language
of § 1255(i)(2)(A). Villanueva, in essence, argued that the government waived the
condition that he be admissible in order for the Attorney General to adjust his status.
The IJ held Villanueva ineligible to adjust status, and the Board affirmed.
1
Section 1255(i)(2)(A) provides: "[T]he Attorney General may adjust the status
of the alien to that of an alien lawfully admitted for permanent residence if the alien
is eligible to receive an immigrant visa and is admissible to the United States for
permanent residence."
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II. Discussion
A. Villanueva's Eligibility for Adjustment of Status
On appeal, Villanueva maintains that an alien that is inadmissible under
§ 1182(a)(9)(C)(i)(I)2 is eligible for adjustment of status pursuant to § 1255(i).
Villanueva argues that § 1182(a)(9)(C)(i)(I) treats aliens, like himself, who entered
without inspection differently than those who have been deported and are thus
ineligible for adjustment of status. Villanueva maintains that the legislative history of
the statute and proper statutory interpretation support his proposition. Villanueva
argues that the Board's decisions in In re Briones, 24 I. & N. Dec. 355 (BIA 2007),
and In re Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007), are unreasonable and should
not be followed. He also contends that we should recognize equitable tolling for the
time that he was out of the country at the government's direction.
"We review the Board's conclusions of law de novo, with substantial deference
to its interpretations of statutes and regulations administered by the agency." Ateka v.
Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004). "The Board's findings of fact will be
disturbed only if unsupported by substantial evidence." Id.
Harmonizing § 1255(i) and § 1182(a)(9)(C)(i)(I) has proven a tall order. The
Board itself has wrestled with the ambiguity and resolved the conflict contrary to
Villanueva's preferred reading in Briones and Lemus-Losa. Three circuits have
deferred to the Board's interpretation that § 1255(i) does not exempt aliens who
illegally enter the United States without being admitted following a prior period of
unlawful presence in the United States totaling more than one year from
§ 1182(a)(9)(C)(i)(I)'s inadmissibility. Ramirez v. Holder, _ F.3d_ 2010 WL 2499988,
(4th Cir. 2010); Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008); Ramirez-Canales v.
Mukasey, 517 F.3d 904 (6th Cir. 2008). Villanueva relies on Padilla-Caldera v.
2
Section 1182(a)(9)(C)(i)(I) provides: "Any alien who . . . has been unlawfully
present in the United States for an aggregate period of more than 1 year . . . and who
enters or attempts to reenter the United States without being admitted is inadmissible."
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Gonzales, 453 F.3d 1237 (10th Cir. 2006), and Acosta v. Gonzales, 439 F.3d 550 (9th
Cir. 2006), for support, but both cases were decided before the Board addressed the
statutory ambiguity and provide little aid to petitioner.
In Briones, the Board considered the instant issue and held that aliens
inadmissible under § 1182(a)(9)(C)(i)(I) are ineligible for adjustment of status
pursuant § 1255(i). 24 I. & N. Dec. at 371; Lemus-Losa, 24 I. & N. Dec. at 377. In
Mora, the second circuit stated that "[b]ecause we conclude that the Briones decision
interpreted ambiguous provisions of the immigration laws in a reasonable way, we
must defer to it pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)[.]" 550 F.3d at
232. Similarly, in Ramirez-Canales, the sixth circuit stated that "Briones is the type
of case-by-case adjudication giving meaning to ambiguous statutes to which we owe
deference." 517 F.3d at 908. We join the Fourth, Second, and Sixth circuits and hold
that an alien that is inadmissible under § 1182(a)(9)(C)(i)(I) is not eligible for
adjustment of status pursuant § 1255(i).
Villanueva does not appear to contest his inadmissibility under
§ 1182(a)(6)(A)(i).3 So, even if we agreed with Villanueva that an alien that is
inadmissible under § 1182(a)(9)(C)(i)(I) is eligible for adjustment of status pursuant
§ 1255(i), Villanueva would remain ineligible to adjust status due to his
§ 1182(a)(6)(A)(i) inadmissibility. Accordingly, we affirm the Board's decision
denying adjustment of status.
3
Section 1182(a)(6)(A)(i) provides: "An alien present in the United States
without being admitted or paroled, or who arrives in the United States at any time or
place other than as designated by the Attorney General, is inadmissible."
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B. Equitable Tolling and Nunc Pro Tunc Relief
Villanueva argues that because he left the United States to file a visa application
at the direction of the government, he is entitled to equitable tolling. Alternatively,
Villanueva contends that this court should either grant adjustment retroactively or
remand this matter to the Board for such a determination in order to remedy the
harshness of the outcome in this case.
Villanueva, however, did not exhaust these arguments in the administrative
proceedings below. Consequently, we lack jurisdiction to review the issue. 8 U.S.C.
§ 1252(d)(1); Frango v. Gonzales,437 F.3d 726 (8th Cir. 2006).
III. Conclusion
For the reasons stated above, we deny the petition for review.
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