F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 23 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ADELFO BERRUM-GARCIA,
Petitioner - Appellant,
v.
MICHAEL COMFORT, District
Director, Bureau of Immigration and
Customs Enforcement (“BICE”),
Denver District; JOHN ASHCROFT,
Attorney General of the United States
of America; SCOTT WEBER, District No. 03-1181
Director, Bureau of Immigration and
Customs Enforcement (“BICE”); TOM
RIDGE, Secretary of the U.S.
Department of Homeland Security;
EDUARDO AGUIRRE, JR., Acting
Director of BCIS, DHS; and
MICHAEL J. GARCIA, Assistant
Secretary of BICE, DHS,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 02-RB-2339 (BNB))
Jeffrey Joseph, Denver, Colorado, for Petitioner-Appellant.
Kevin T. Traskos, Assistant United States Attorney (John W. Suthers, United
States Attorney, with him on the brief), Denver, Colorado, for Respondents-
Appellees.
Before EBEL, ANDERSON and HARTZ, * Circuit Judges.
EBEL, Circuit Judge.
Petitioner Adelfo Berrum-Garcia (“Petitioner”), a Mexican citizen,
attempted to enter the United States illegally in January 1999, using a false name
and claiming to be a U.S. citizen. He was intercepted by the Immigration and
Naturalization Service, ordered removed to Mexico, and barred from applying for
permission to enter the country for five years. Within the month, however,
Petitioner illegally reentered the United States, this time without being
apprehended. He married a United States citizen in October 2000, and
subsequently filed an application for adjustment of immigration status from that
of an illegal alien to that of lawful permanent resident. The INS 1 determined that
Petitioner had illegally reentered the country after being removed in 1999, denied
*
Judge Hartz joins all of this opinion except for Part III.B.(2).
1
On March 1, 2003 the INS ceased to exist, and its responsibilities were
divided among three distinct agencies formed within the new Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 441, 451, 471, 116 Stat. 2135 (codified as amended at 6 U.S.C. §§ 251, 271,
291) (2002). Because the actions Petitioner challenges in this appeal were taken
prior to this reorganization, however, in this opinion we will refer to the relevant
government agency as the INS.
-2-
his requests for permission to reapply for entry and for adjustment of status, and
reinstated his 1999 removal order.
Berrum-Garcia, through counsel, promptly filed a petition for habeas
corpus in the federal district court for the District of Colorado, claiming that the
INS had misapplied the immigration statutes and had denied him due process and
equal protection by reinstating his prior removal order in spite of his application
for adjustment of status. The district court dismissed his petition after concluding
that Petitioner had no statutory or due process right to be considered for
adjustment of status and after finding his equal protection claim unsupported by
any facts. Petitioner renewed his statutory and due process claims on appeal to
this court. We agree with the district court that Petitioner has no statutory or due
process rights to the relief he sought from the INS and accordingly AFFIRM the
INS’s reinstatement of Petitioner’s prior removal order.
I. Background
Petitioner Adelfo Berrum-Garcia was apprehended attempting to cross into
the United States on January 9, 1999, using the assumed name of Rodolfo Jaimes-
Rodriguez. When interviewed in Spanish by an INS officer, Petitioner admitted
that he had falsely claimed to be a citizen of the United States in the course of his
attempt to enter the country. The INS found Petitioner inadmissible under section
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212(a)(6)(C)(ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(C)(ii), which renders inadmissible any alien who falsely represents
himself as a United States citizen. The INS notified Petitioner that he was
prohibited from reentering or seeking to reenter the United States for five years,
and ordered him removed to Mexico that same day under the summary procedure
established under 8 U.S.C. § 1225(b)(1). Approximately three weeks later,
however, Petitioner illegally reentered the United States and managed to avoid
capture at the border.
Petitioner subsequently married a United States citizen on October 14,
2000. In February 2001, Petitioner’s wife filed a Form I-130 “Petition for Alien
Relative,” which the INS approved on October 9, 2001. The INS approval notice
indicated that Petitioner appeared ineligible for adjustment of status to that of a
lawful permanent resident. While the I-130 had been pending, however,
Petitioner had applied, on August 28, 2001, for adjustment of status under INA
§ 245(i), 8 U.S.C. § 1255(i), on the basis of his marriage to a United States
citizen. 2
2
8 U.S.C. § 1255(i) permits an alien illegally present in the United States to
apply to the Attorney General for adjustment of status to that of lawful permanent
resident upon payment of a $1,000 application fee. 8 U.S.C. § 1255(i)(1). The
statute states: Upon receipt of such an application and the [$1,000 fee], the
Attorney General may adjust the status of the alien to that of an alien lawfully
admitted for permanent resident if – (A) the alien is eligible to receive an
(continued...)
-4-
The INS scheduled an interview with Petitioner on his adjustment of status
application on December 12, 2002. On that day, immediately before Petitioner’s
interview, his counsel filed a Form I-212 Application for Permission to Reapply
for Admission to the United States after Deportation or Removal. At the
subsequent interview, the INS informed Petitioner that it had determined he had
illegally reentered the United States after being removed on January 9, 1999, and
that his prior removal order would be reinstated pursuant to 8 U.S.C.
§ 1231(a)(5). Petitioner’s I-212 and adjustment of status applications were
denied that same day on the grounds that § 1231(a)(5) rendered him statutorily
ineligible for either form of relief, and Petitioner was taken into custody.
On December 16, 2002 Berrum-Garcia filed a petition for a writ of habeas
corpus in the district court, asserting jurisdiction under 28 U.S.C. § 2241. In his
petition, he claimed that the INS had unlawfully denied his application for
adjustment of status because his application was not barred simply because he had
illegally reentered the country. Petitioner also claimed that the INS had violated
his due process and equal protection rights by refusing to consider his application
for adjustment of status.
2
(...continued)
immigrant visa and is admissible to the United States for permanent residence;
and (B) an immigrant visa is immediately available to the alien at the time the
application is filed. Id. § 1255(i)(2) (emphasis added).
-5-
The district court dismissed his petition, finding that 8 U.S.C. § 1231(a)(5)
did in fact bar Petitioner from seeking adjustment of status under § 1255(i), and
that Petitioner had no due process right to have his I-212 or adjustment of status
applications considered in spite of § 1231’s statutory bar. Petitioner’s equal
protection claims were dismissed as unsupported by any relevant factual
allegations in the pleadings.
In this appeal, Petitioner renews his statutory and due process claims,
arguing that his requests for I-212 and adjustment of status relief are not barred
by the reinstatement provision codified at 8 U.S.C. § 1231(a)(5), and that he has a
due process right to have his I-212 and adjustment of status applications
considered fully on their merits. He does not raise any equal protection claims,
but instead seeks to challenge the validity of his 1999 removal order, protests that
the INS improperly arrested him at his December 2002 interview, and argues that
§ 1231(a)(5) runs contrary to the value of family unity that motivates the
adjustment of status provisions of the immigration statutes.
II. Jurisdiction
We begin by observing that Berrum-Garcia’s resort to a habeas corpus
petition in the district court was incorrect. In 8 U.S.C. § 1252 Congress has
provided an avenue for direct judicial review of INS removal orders in the courts
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of appeals. 3 Although the text of § 1252(a)(1) speaks of judicial review for
“order[s] of removal,” we have previously held that this provision gives us
jurisdiction to hear direct appeals from reinstatement orders entered pursuant to
§ 1231(a)(5). Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n.3 (10th Cir.
2003).
We have also previously observed that the district court lacks jurisdiction
over § 2241 habeas petitions raising arguments that could have been, but were
not, raised on a direct appeal under § 1252. See Duran-Hernandez, 348 F.3d at
1162 (petitioner who sought habeas review in district court on claims that should
have been pursued first on direct appeal had both filed the wrong kind of action
and sought relief from the wrong court); Latu v. Ashcroft, 375 F.3d 1012, 1017
(10th Cir. 2004) (“[H]abeas proceedings ‘are not available to test the legality of
matters which should have been raised on direct appeal.’”) (quoting United States
v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).
In Duran-Hernandez, we nevertheless found that the petitioner’s error could
be cured by relying on the transfer statute, 28 U.S.C. § 1631, which permits a
court to transfer a case to a court that would have had jurisdiction on the date
“Judicial review of a final order of removal . . . is governed only by
3
chapter 158 of Title 28, except as provided in subsection (b) of this section . . . .”
8 U.S.C. § 1252(a)(1). Subsection (b) establishes a 30-day time limit for filing
direct appeals and regulates the subject matter and scope of our direct appellate
review. § 1252(b).
-7-
when the action was filed, where the transferring court lacks jurisdiction over the
case in question, and where such a transfer would be in the interest of justice. 4
348 F.3d at 1162. These three conditions are met in this case as well, 5 and we
therefore transfer the case according to the terms of 28 U.S.C. § 1631 and take
jurisdiction under 8 U.S.C. § 1252.
III. Discussion
A. Statutory interpretation
In passing the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) Congress effected significant changes in immigration law,
several of which were aimed at expediting the process of removing illegal aliens
by limiting certain layers of administrative and judicial review. The amendments
4
28 U.S.C. § 1631 provides: Whenever a civil action is filed in a [lower
federal] court . . . or an appeal, including a petition for review of administrative
action, is noticed for or filed with such a court and that court finds that there is a
want of jurisdiction, the court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or appeal could have
been brought at the time it was filed or noticed, and the action or appeal shall
proceed as if it had been filed in or noticed for the court to which it is transferred
on the date upon which it was actually filed in or noticed for the court from which
it is transferred.
5
Berrum-Garcia’s habeas petition was filed within the 30-day time limit
established by 8 U.S.C. § 1252(b), and the government’s brief now before us
urges us to take jurisdiction because Berrum-Garcia’s challenge could have been
filed with this court in the first instance.
-8-
to section 241 of the Immigration and Nationality Act (INA), codified at 8 U.S.C.
§ 1231, provide a streamlined procedure for removing aliens who illegally reenter
the United States after having previously been removed or deported.
8 U.S.C. § 1231(a)(5) provides in full:
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.
(emphasis added).
Petitioner’s argument that § 1231(a)(5) poses no bar to his efforts to obtain
permission to reapply for entry and adjustment of status is refuted by the plain
language of the statute. His claim that § 1231(a)(5) prohibits only relief from
deportation or removal—and thus does not prevent him from seeking adjustment
of status—is contradicted by the statute’s bar on “any relief under this chapter.”
The chapter in question is Chapter 12 of Title 8 of the United States Code,
constituting the entirety of the Immigration and Nationality Act, not merely the
section pertaining to removal or reinstatement of prior removal orders.
Petitioner’s efforts to argue that his I-212 and adjustment of status
applications had to be considered fully on their merits because they were filed
prior to the INS’s reinstatement decision are similarly unavailing. Section
-9-
1231(a)(5) 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.
This reading of the statutory text is supported by legislation subsequently
passed by Congress. In amendments to the Legal Immigration Family Equity Act
of 2000 (LIFE Act Amendments of 2000), Congress extended the immigration
amnesty provided by § 1255(i)’s adjustment of status provision, and specifically
exempted certain Central American aliens applying for adjustment of status from
the strictures of § 1231(a)(5) See Pub. L. No. 106-554, App. D § 1505, 114 Stat.
2763A-326. 6 The house report accompanying those amendments states that their
intended effect was to permit “Nicaraguan [sic], Cubans, and Haitians eligible for
6
Section 1505 provided in relevant part:
(a) NICARAGUAN ADJUSTMENT AND CENTRAL AMERICAN RELIEF
ACT.--
(1) IN GENERAL.--Section 202(a) of the Nicaraguan Adjustment and Central
American Relief Act [“NACARA”] is amended--
(A) by redesignating paragraph (2) as paragraph (3); and
(B) by inserting after paragraph (1) the following new paragraph:
“(2) RULES IN APPLYING CERTAIN PROVISIONS. In the case of an alien . . .
who is applying for adjustment of status under this section--
“(A) the provisions of [§ 1231(a)(5)] shall not apply . . .” An identical exemption
was granted to aliens subject to the Haitian Refugee Immigration Fairness Act of
1998 (“HRIFA”). § 1505.
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adjustment of status . . . [to] receive this relief despite having been previously
removed under an order of removal . . . .” H.R. Rep. No. 106-1048, at 231 (2001)
at *171. Where Congress intended § 1231(a)(5) not to pose a barrier to
adjustment of status for aliens who illegally reentered the United States, it knew it
needed to make a special exception to the general rule. Petitioner does not fall
within any such exception, and he is therefore bound by the general rule
disqualifying illegally reentering aliens from seeking adjustment of status. 7
7
Our conclusion on this point is in accord with every circuit court decision
of which we are aware that has addressed this issue. In Padilla v. Ashcroft, 334
F.3d 921 (9th Cir. 2003) the Ninth Circuit rejected an identical argument to the
one advanced by Petitioner, holding that an alien who illegally reentered this
country was not eligible for adjustment of status because “the reinstatement
provision . . . controls.” Id. at 925. The Padilla court also pointed to the specific
exceptions Congress made for aliens covered by NACARA and HRIFA and
concluded that Congress knew how to exempt illegally reentering aliens from
1231(a)(5). The fact that those exemptions were specifically targeted at certain
classes of aliens convinced the Ninth Circuit that “Congress intended no
exemption” for all others. Id; accord Flores v. Ashcroft, 354 F.3d 727, 730-31
(8th Cir. 2003) (INS properly rejected § 1255(i) request for adjustment of status
because of § 1231(a)(5) bar to relief); Warner v. Ashcroft, 381 F.3d 534, 540 (6th
Cir. 2004) (per curiam) (same); Gomez-Chavez v. Perryman, 308 F.3d 796, 801-
03 (7th Cir. 2002), cert. denied, 540 U.S. 811 (2003) (same); see also Arevalo v.
Ashcroft, 344 F.3d 1, 5 (1st Cir. 2003) (evaluating § 1231's retroactive effects on
the basis of assumption that § 1231(a)(5) was fatal to an adjustment of status
application under § 1255(i)); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 109-10
(4th Cir. 2001) (same).
In supplemental filings after oral argument, Petitioner points us to the
Ninth Circuit’s recent decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th
Cir. 2004), in which that court sidestepped the rule previously set forth in Padilla
by finding that the alien’s I-212 inadmissibility waiver request might have cured
his illegal entry and thus allowed him to escape the sweep of § 1231(a)(5). Id. at
(continued...)
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We also conclude, as a matter of statutory interpretation, that the same rule
governs I-212 requests for permission to reapply for admission to the United
States. Petitioner may not seek adjustment of status under § 1255(i) because
§ 1231(a)(5) bars illegally reentering aliens from “any relief” under the INA.
Setting aside the due process arguments discussed below, we can find no reason
to believe this language means something different when applied to the various
other forms of relief normally available under the INA.
B. Due process
(1) I-212 approval would not avoid reinstatement under
§ 1231(a)(5).
Petitioner also argues that his due process rights under the Fifth
Amendment were violated when the INS refused fully to evaluate his I-212 and
adjustment of status applications on their merits. In his view, were the INS to
approve his I-212 application, thereby making him admissible under 8 U.S.C.
§ 1182, his illegal reentry would effectively be expunged from his record. The
Service’s refusal to evaluate his I-212 application while citing to § 1231(a)(5)
begs the question, according to Petitioner’s theory, since § 1231(a)(5) only
7
(...continued)
793. We analyze this case in greater detail below, but conclude that it does not
address the issue now at hand—i.e., whether an alien subject to reinstatement
under § 1231(a)(5) is eligible for adjustment of status under § 1255(i).
- 12 -
applies to aliens that have reentered the country illegally, and an I-212 waiver of
inadmissibility would “cure” the illegality of Petitioner’s last entry, thereby
putting him outside the sweep of § 1231.
In order to prevail on his due process challenge, Petitioner must show he
was prejudiced by the actions he claims violated his Fifth Amendment rights. See
Duran-Hernandez, 348 F.3d at 1162-63. Petitioner has not, and cannot, show
prejudice in these circumstances. We therefore find that Petitioner has not shown
the required prejudice, and we reject his due process claim.
Even were Petitioner successful on his I-212 request, that grant of
permission to reapply would not by itself have “cured” Petitioner’s illegal reentry
and he would therefore have remained subject to reinstatement under
§ 1231(a)(5). Petitioner argues that a successful I-212 application would have
effectively wiped his latest illegal reentry off the books, thus placing him outside
the reach of § 1231(a)(5)'s expedited reinstatement procedure. According to
Petitioner, the government’s invocation of § 1231(a)(5) to cut off the path that
could have let him escape from the strict terms of that very statute deprived him
of due process. We find, however, that Petitioner misunderstands the nature of an
I-212 waiver.
Aliens who attempted or succeeded in illegally entering the United States
are denied permission even to apply for legal admission for a set term of years,
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depending on the nature of their previous illegal entry. Under the terms of INA
§ 212(a)(9), 8 U.S.C. § 1182(a)(9), such aliens are deemed “inadmissible” and
thus ineligible even to apply for a visa that would permit them to legally enter the
United States. Aliens who would like not to have to wait the full three, five, ten,
or in some cases twenty years before they may again apply for legal admission to
the U.S. may seek permission from the Attorney General to reapply early by
filling out a Form I-212 and submitting it to an American consular officer. 8
C.F.R. § 212.2. If the I-212 is approved, the alien’s inadmissibility is waived,
and he is no longer barred from applying for entry to the U.S. See 8 U.S.C.
§ 1182(a)(9)(A)(iii), (9)(B)(v), (9)(C)(ii). The legal effect of such a waiver is
identical to the alien having waited out the full three, five, or ten years back in
the alien’s home country. The alien may now request a visa from the State
Department, but he may not legally enter the United States until the visa request
is granted. Approval of an alien’s I-212 makes him admissible; it does not make
him admitted. 8
8
Petitioner’s reliance on the Eighth Circuit’s decision in Lopez-Flores v.
Department of Homeland Security, 376 F.3d 793 (8th Cir. 2004), amended and
superseded by Lopez-Flores v. Dep’t of Homeland Sec., 387 F.3d 773 (8th Cir.
2004), is misplaced. Lopez-Flores was a retroactivity case; thus, the claim
presented to the Eighth Circuit was that the government’s use of § 1231 as a
blanket ban on relief took away rights to be considered for discretionary relief
that the petitioner still had when he reentered the country before IIRIRA went
into force. 387 F.3d at 775-76. The Lopez-Flores court’s task was to compare
(continued...)
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(2) Petitioner is ineligible for any I-212 waiver because he
previously had been removed.
In any event, Petitioner’s illegal reentry into the United States makes him
ineligible for any I-212 waiver, quite apart from the effects of § 1231(a)(5). His
ineligibility for an I-212 waiver, in turn, dooms his application for adjustment of
status. The language and legislative history of INA § 212, codified at 8 U.S.C.
§ 1182, shows that Petitioner was not eligible for an I-212 waiver.
Aliens seeking adjustment of status under § 1255(i) must be physically
present in the United States. Since their illegal presence renders the applicants
“inadmissible” under § 1182(a)(9)(B) or (C), INS regulations require aliens
applying for adjustment of status to remedy their inadmissibility by filing a Form
I-212 at the same time. 8 C.F.R. § 212.2(e). A close look at the inadmissibility
terms of § 1182 leads us to conclude, however, that aliens who illegally reenter
the United States after having been formally ordered removed may not apply for
an I-212 waiver from within the United States.
8
(...continued)
the avenues for relief available to the petitioner at the time he reentered the
country to those now available to him under IIRIRA. We are not confident, as an
initial matter, that Petitioner is correct to read the Eighth Circuit’s statement, that
“approval of Form I-212 retroactively cancels the disqualifying effect of the prior
deportation,” id. at 775 n.2, as supporting his theory that an I-212 inadmissibility
waiver “cures” a prior illegal entry. Were he correct, however, and were this
statement by the Lopez-Flores court intended as an analysis of current (post-
IIRIRA) law, it clearly would be dicta, and in any event it would not be binding
upon us.
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Illegal reentrants to the United States are covered by 8 U.S.C.
§ 1182(a)(9)(C). Under the plain language of subsection (a)(9)(C)(ii),
aliens who illegally reenter the country after having been removed or deported
generally face a permanent ban on applying for admission. A waiver of this life-
time inadmissibility is available, but aliens covered by this section of the statute
must first exit the United States and wait ten years before applying for an I-212
waiver. 8 U.S.C. § 1182(a)(9)(C)(ii). See Memorandum from Paul W. Virtue,
Acting Executive Associate Commissioner, to the Management Team et al. at 6
(June 17, 1997), reprinted in 74 No. 25 Interpreter Releases 1033, 1035 (1997).
With certain exceptions for aliens fleeing torture or abuse, the statute provides no
way to reduce the period of inadmissibility below 10 years.
In its recent decision in Perez-Gonzalez, the Ninth Circuit held that aliens
who illegally reentered the United States, who were therefore inadmissible under
§ 1182(a)(9)(C), were nevertheless permitted to apply for I-212 relief while still
in the United States. We respectfully disagree.
The INS regulations governing the simultaneous applications for waiver of
inadmissibility and for adjustment of status direct aliens to submit their I-212
forms to the agency’s “district director having jurisdiction over the place where
the alien resides,” thus implying what § 1255(i) already requires—that aliens
applying for this combined relief do so while present in the United States. 8
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C.F.R. § 212.2(e). The same regulations also state that I-212 waivers meant to
accompany applications for adjustment of status “shall be retroactive to the date
on which the alien embarked or reembarked at a place outside the United States.”
Id. § 212.2(i)(2) (emphasis added). The Perez-Gonzalez court understood these
provisions as “expressly permit[ting] applicants for adjustment of status who have
been previously removed or deported to apply for permission to reapply from
within this country.” Perez-Gonzalez, 379 F.3d at 793.
Section 212.2(e), in our view, only implies that some aliens illegally
present in the United States may apply for an I-212 waiver without leaving the
country; it does not explicitly extend that privilege to aliens who have illegally
reentered the country after a prior deportation or removal. Taken in isolation, this
regulatory provision is ambiguous as to whether it covers both “first-time” illegal
aliens who are unlawfully in the United States without having been previously
ordered removed or deported, see 8 U.S.C. § 1182(a)(9)(B), and aliens who have
illegally reentered the country in defiance of a prior removal order.
The reference to “the date on which the alien embarked or reembarked” at a
place outside the United States contained in Section 212.2(i)(2) is similarly
ambiguous, since aliens who have left this country voluntarily before they have
stayed here illegally for more than a year and before formal removal proceedings
have been initiated against them may reenter the United States without becoming
- 17 -
subject to the harsher penalties meted out to aliens who, like Petitioner, have
illegally reentered in defiance of a formal removal order. Compare 8 U.S.C.
§ 1182(a)(9)(B)(i)(I), with § 1182(a)(9)(C).
Both these ambiguities are resolved when we look to the language
governing waivers of inadmissibility in § 1182(a)(9)(B) and (C). Aliens subject
to subsection (B) are inadmissible for three or ten years, and either ban may be
lifted if the affected alien “is the spouse or son or daughter of a United States
citizen . . . if it is established to the satisfaction of the Attorney General that the
refusal of admission to such immigrant alien would result in extreme hardship to
the citizen . . . spouse or parent of such alien.” 8 U.S.C. § 1182(a)(9)(B)(v).
Aliens, such as Petitioner, who are subject to subsection (C) as a result of having
illegally reentered after previously being formally removed, are by default
inadmissible for life. This disability may be waived only after the alien has been
outside the United States for ten years.
That § 1255(i)’s adjustment of status procedure is generally available only
to aliens who are guilty only of illegal entry (the “first-time” offense) and not to
those who have reentered in spite of a prior removal order is confirmed by the
legislative history of the LIFE Act Amendments of 2000. The House Report
accompanying that legislation explains that § 1255(i)’s amnesty program is aimed
at allowing illegal aliens to stay with their families if they become eligible for an
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immigrant visa after they have entered illegally. “In the absence of section
[1255(i)], such aliens must pursue their visa applications at a U.S. embassy or
consulate outside the United States and are potentially subject to the three and 10
year bars on admissibility instituted by section 301(b) of [IIRIRA].” H.R. Rep.
No. 106-1048 at 230. Section 301(b) of IIRIRA is now codified at 8 U.S.C.
§ 1182(a)(9), and the only provision within subsection (a)three(9) calling for
“three and 10 year bars on admissibility” is (a)(9)(B), with the three-year bar
applying to illegal aliens who have been in-country 180 days to a year and the
ten-year bar applying to aliens who remain here illegally for over a year. It is
therefore apparent to us that Congress did not consider those who reenter the
United States in defiance of a prior deportation order to be qualified for §
1255(i)’s amnesty.
The exceptions for Nicaraguan, Cuban, and Haitian immigrants made in
those same LIFE Act Amendments provide further support for our reading of the
statutes. Congress made such immigrants eligible for adjustment of status
“despite having been previously removed,” id. at 231, and accomplished this by
stating that:
(A) the provisions of [§ 1231(a)(5)] shall not apply; and
(B) the Attorney General may grant the alien a waiver on the grounds
of inadmissibility under subparagraphs (A) and (C) of [§ 1182(a)(9)].
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Pub. Law No. 106-554 App. D, § 1505, 114 Stat. 2763A-326. Thus, Congress
evidently believed that § 1182(a)(9)(A) and (C) posed an obstacle to aliens who
had been previously removed.
The INS’s own regulations implementing the expanded adjustment of status
remedy provided for Nicaraguan and Cuban nationals provide yet more support
for our reading. The regulations establish a “[s]pecial rule for waiver of
inadmissibility grounds for NACARA applicants under [§ 1182](a)(9)(A) and
[§ 1182](a)(9)(C),” under which Nicaraguan and Cuban applicants for adjustment
of status may “apply for a waiver of these grounds of inadmissibility while
present in the United States.” 8 C.F.R. § 245.13(c)(2) (emphasis added). That
this provision is designated as a “special rule” reinforces our conclusion that the
general rule for all other aliens is that waivers of inadmissibility under
subsections (a)(9)(A) and (C) must be sought from outside the United States.
Petitioner was formally removed from the United States in 1999 after he
was found to have falsely claimed U.S. citizenship. His subsequent illegal reentry
therefore made him subject to § 1182(a)(9)(C)(i)(II), thereby rendering him
ineligible to apply for an I-212 waiver or for adjustment of status under § 1255(i)
while he remained in this country. Petitioner was not prejudiced by the INS’s
refusal to consider his applications for I-212 waiver and for adjustment of status
on their merits, and his due process claim therefore fails.
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C. Remaining claims
Petitioner briefly raises some other claims for relief, all of which we reject.
The first of these challenges, that the automatic reinstatement procedures set forth
in § 1231(a)(5) undermine the value of family unity, presents a policy argument
that is beyond the purview of this court. Petitioner’s characterization of his arrest
at the close of his adjustment of status interview as a “bait and switch” is both
unsupported by any evidence that the INS engaged in deliberate entrapment or
misdirection and is blind to the fact that the INS is required to detain aliens found
to be subject to an outstanding removal order. See 8 U.S.C. § 1231(a)(2).
Finally, Petitioner’s attempt to challenge the validity of his 1999 removal is
barred by § 1231(a)(5)’s statement that prior removal orders are “‘not subject to
being reopened or reviewed’” when they are reinstated. See Garcia-Marrufo v.
Ashcroft, 376 F.3d 1061, 1063-64 (10th Cir. 2004) (quoting § 1231(a)(5)).
IV. Conclusion
We find that Petitioner’s efforts to obtain adjustment of status and waiver
of inadmissibility are barred by statute, and that his due process claim is without
merit. We must therefore AFFIRM the decision of the INS reinstating
Petitioner’s 1999 removal order and removing him to Mexico.
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