FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA MATILDE CARRILLO DE
PALACIOS,
No. 09-72059
Petitioner,
v. Agency No.
A026-630-010
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 11, 2011—Seattle, Washington
Filed June 21, 2011
Before: Susan P. Graber and Milan D. Smith, Jr., Circuit
Judges, and Roger T. Benitez,* District Judge.
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.
8401
8404 CARRILLO DE PALACIOS v. HOLDER
COUNSEL
Mari Matsumoto, Robert Pauw (argued), and Erin Cipolla,
Gibbs Houston Pauw, Seattle, Washington, for the petitioner.
Tony West, John S. Hogan, Channah M. Farber, and Jessica
E. Sherman (argued), Civil Division, United States Depart-
ment of Justice, Washington, D.C., for the respondent.
CARRILLO DE PALACIOS v. HOLDER 8405
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 Car-
rillo 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 having
been “unlawfully present in the United States for an aggregate
period of more than 1 year,” which renders her inadmissible
under 8 U.S.C. § 1182(a)(9)(C)(i)(I). We reject her argument
that the § 1182(a)(9)(C)(i)(I) one-year period of unlawful
presence must occur after the April 1, 1997 effective date of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, § 309(a),
110 Stat. 3009-546, 3009-625, reprinted in 8 U.S.C. § 1101
note, at 35 (2006) (Effective Date of 1996 Amendments). 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
8406 CARRILLO DE PALACIOS v. HOLDER
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 Govern-
ment 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 rele-
vant 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 for adjust-
ment of status under 8 U.S.C. § 1255(i). The BIA accordingly
ordered her removed.
JURISDICTION AND STANDARD OF REVIEW
Because the BIA’s decision was issued in 2009, our review
is governed by 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
[1] 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
CARRILLO DE PALACIOS v. HOLDER 8407
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
(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 admis-
sion 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
1
Clause (iii), which allows the Secretary to waive clause (i) for certain
Violence Against Women Act self-petitioners, is not at issue in this case.
See 8 U.S.C. § 1182(a)(9)(C)(iii); see also Violence Against Women and
Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,
119 Stat. 2960.
8408 CARRILLO DE PALACIOS v. HOLDER
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 inter-
pretation 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 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 permis-
sion to apply for readmission from outside the United States
after ten years have lapsed from the date of his last depar-
ture.” 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)(I). We need not address the arguments
regarding 8 U.S.C. § 1182(a)(9)(C)(i)(II), and we express no
opinion regarding the BIA’s analysis of that provision.
2
In Garfias-Rodriguez v. Holder, ___ F.3d ___, No. 09-72603, 2011
WL 1346960, at *5-6 (9th Cir. Apr. 11, 2011), 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 inad-
missible under § 1182(a)(9)(C)(i)(II). We have further held that the hold-
ings of Briones and Torres-Garcia, and our decisions deferring to those
holdings, may be applied retroactively. Garfias-Rodriguez, 2011 WL
1346960, at *6-7; Morales-Izquierdo, 600 F.3d at 1088-90.
CARRILLO DE PALACIOS v. HOLDER 8409
[2] The statutory text is straightforward: an alien is inad-
missible if she “has been unlawfully present in the United
States for an aggregate period of more than 1 year” and subse-
quently “enters . . . the United States without being admitted.”
8 U.S.C. § 1182(a)(9)(C)(i)(I). The parties agree that Carrillo
de Palacios was unlawfully present for more than one year
between 1981 and 1983, and that she returned without being
admitted in September 1997. These facts establish that she
satisfies both elements of § 1182(a)(9)(C)(i)(I): she “enter[ed]
. . . the United States without being admitted” in 1997 after
having “been unlawfully present . . . for an aggregate period
of more than 1 year” between 1981 and 1983. Id.; see also
Garfias-Rodriguez, 2011 WL 1346960, at *1, *6 (“[Garfias]
unlawfully entered the United States in 1996 and departed the
country, once in 1999 and once in 2001 . . . . Garfias is inad-
missible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) . . . .”). The BIA
therefore correctly concluded that she is inadmissible under
§ 1182(a)(9)(C)(i)(I).
In response, Carrillo de Palacios argues that
§ 1182(a)(9)(C)(i)(I) is impermissibly retroactive as applied
to her case. She explains that her “accrual of unlawful pres-
ence prior to her most recent entry into the United States in
September[ ] 1997, does not cause her to be inadmissible
because her unlawful presence accrued before April 1, 1997,
the [effective] date of . . . [§ 1182(a)(9)](C)(i)(I).”
The Supreme Court addressed a similar argument about
IIRIRA’s retroactivity in Fernandez-Vargas v. Gonzales, 548
U.S. 30 (2006). The Court began by describing the retroactiv-
ity analysis set forth in Landgraf v. USI Film Products, 511
U.S. 244, 278 (1994), and later cases:
We first look to whether Congress has expressly pre-
scribed the statute’s proper reach, and in the absence
of language as helpful as that we try to draw a com-
parably firm conclusion about the temporal reach
specifically intended by applying our normal rules of
8410 CARRILLO DE PALACIOS v. HOLDER
construction. If that effort fails, we ask whether
applying the statute to the person objecting would
have a retroactive consequence in the disfavored
sense of affecting substantive rights, liabilities, or
duties on the basis of conduct arising before its
enactment. If the answer is yes, we then apply the
presumption against retroactivity by construing the
statute as inapplicable to the event or act in question
owing to the absence of a clear indication from Con-
gress that it intended such a result.
Fernandez-Vargas, 548 U.S. at 37-38 (alterations, citations,
and internal quotation marks omitted).
The Court applied this two-part analysis to reject
Fernandez-Vargas’s retroactivity challenge to IIRIRA’s
reinstatement-of-removal provision, 8 U.S.C. § 1231(a)(5).
The statute provided that if “ ‘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 . . .
the alien shall be removed under the prior order at any time
after the reentry.’ ” Fernandez-Vargas, 548 U.S. at 34-35
(quoting 8 U.S.C. § 1231(a)(5)). Fernandez-Vargas argued
that the statute did not apply to him because he reentered the
country in 1982, long before the provision went into effect,
and his petition accordingly should have been decided under
the more favorable pre-IIRIRA legal regime. Id. at 33-35, 38.
The Court rejected Fernandez-Vargas’s arguments in light
of Landgraf. Under the first step of Landgraf, it noted that
Congress had not explicitly directed that § 1231(a)(5) was to
be applied either prospectively or retroactively, and held that
the standard tools of statutory interpretation failed to resolve
the question. Id. at 38, 41. It then applied the second step of
Landgraf, and emphasized that retroactivity generally
involves the imposition of “a new disability consequent to a
CARRILLO DE PALACIOS v. HOLDER 8411
completed act.” Id. at 45. Under this approach, the reinstate-
ment statute was not impermissibly retroactive:
[I]t is the conduct of remaining in the country after
entry that is the predicate action; the statute applies
to stop an indefinitely continuing violation that the
alien himself could end at any time by voluntarily
leaving the country. It is therefore the alien’s choice
to continue his illegal presence, after illegal reentry
and after the effective date of the new law, that sub-
jects him to the new and less generous legal regime,
not a past act that he is helpless to undo up to the
moment the Government finds him out.
Id. at 44. Thus, the statute was not retroactive. Id. at 45.
The Court explained that its conclusion was consistent with
the policy rationales underlying retroactivity, id. at 45-46,
which had been described in an earlier case as “fair notice,
reasonable reliance, and settled expectations,” INS v. St. Cyr,
533 U.S. 289, 321 (2001) (internal quotation marks omitted).
These policies were not implicated with respect to Fernandez-
Vargas, because he “could not only have chosen to end his
continuing violation and his exposure to the less favorable
law, he even had an ample warning that the new law could be
applied to him and ample opportunity to avoid that very possi-
bility . . . .” Fernandez-Vargas, 548 U.S. at 45.
[3] The conclusions in Fernandez-Vargas apply with equal
force to Carrillo de Palacios’s retroactivity argument. The
first step of the analysis—“whether Congress has expressly
prescribed the statute’s proper reach,” or whether the “normal
rules of construction” reveal a “firm conclusion about the
temporal reach specifically intended” by Congress, id. at 37
(internal quotation marks omitted)—is inconclusive with
respect to § 1182(a)(9)(C)(i)(I). Carrillo de Palacios empha-
sizes IIRIRA’s effective date provision, which states that the
statute is effective on April 1, 1997. See IIRIRA § 309(a)
8412 CARRILLO DE PALACIOS v. HOLDER
(providing that certain amendments, including the addition of
§ 1182(a)(9)(C), “shall take effect on the first day of the first
month beginning more than 180 days after the date of the
enactment of this Act”). On one hand, her argument carries
some persuasive force: “A statement that a statute will
become effective on a certain date does not even arguably
suggest that it has any application to conduct that occurred at
an earlier date.” Landgraf, 511 U.S. at 257. But on the other
hand, her argument is not conclusive: “the instruction that the
provisions are to ‘take effect upon enactment’ . . . mean[s]
that courts should evaluate each provision of the Act in light
of ordinary judicial principles concerning the application of
new rules to pending cases and preenactment conduct.” Id. at
280. Thus, the statute’s effective date provision, taken in iso-
lation, does not conclusively determine whether it applies
only to future conduct, or to prior conduct as well.
[4] In an attempt to invoke “ordinary judicial principles” of
statutory construction, id., the Government notes that IIRIRA
explicitly states that the period of unlawful presence under an
analogous neighboring subsection, § 1182(a)(9)(B),3 begins to
accrue upon the effective date of IIRIRA. That effective date
provision states: “In applying section 212(a)(9)(B) of the
3
That subsection provides:
Any alien . . . who—
(I) was unlawfully present in the United States for a period of
more than 180 days but less than 1 year, voluntarily departed the
United States . . . prior to the commencement of proceedings
under section 1225(b)(1) of this title or section 1229a of this title,
and again seeks admission within 3 years of the date of such
alien’s departure or removal, or
(II) has been unlawfully present in the United States for one
year or more, and who again seeks admission within 10 years of
the date of such alien’s departure or removal from the United
States,
is inadmissible.
8 U.S.C. § 1182(a)(9)(B)(i) (footnote omitted).
CARRILLO DE PALACIOS v. HOLDER 8413
Immigration and Nationality Act, [8 U.S.C. § 1182(a)(9)(B),]
. . . no period before the [IIRIRA] title III—A effective date
[i.e., April 1, 1997] shall be included in a period of unlawful
presence in the United States.” IIRIRA § 301(b)(3). In con-
trast, the subsection at issue here, 8 U.S.C. § 1182(a)(9)(C),
contains no such forward-looking effective date provision.
Instead, § 1182(a)(9)(C) is governed by IIRIRA’s general
effective date provision, which states that many of IIRIRA’s
provisions, including § 1182(a)(9)(C), “shall take effect on”
April 1, 1997. IIRIRA § 309(a). Unlike the specific effective
date provision governing the accrual of unlawful presence
under § 1182(a)(9)(B), this generic effective date provision
makes no reference to the accrual of unlawful presence under
§ 1182(a)(9)(C)(i)(I). See id.
[5] According to the Government, these contrasting effec-
tive date provisions reveal Congress’s intent that
§ 1182(a)(9)(C)(i)(I) applies retroactively to unlawful pres-
ence that accrued prior to April 1, 1997. See Mackey v. Lanier
Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988)
(“[W]e are hesitant to adopt an interpretation of a congressio-
nal enactment which renders superfluous another portion of
that same law.”). We agree with the Government that
§ 1182(a)(9)(B) is relevant to our analysis, but we disagree
that it is conclusive. Section 1182(a)(9)(B)’s forward-looking
effective date provision persuades us that Congress did not
“specifically intend[ ]” for § 1182(a)(9)(C)’s aggregate-
unlawful-presence provision to operate prospectively.
Fernandez-Vargas, 548 U.S. at 37. Given that
§ 1182(a)(9)(B) is explicitly limited to prospective applica-
tions, Congress obviously knew how to reach the same result
with respect to § 1182(a)(9)(C), and apparently declined to do
so.
While the contrast between § 1182(a)(9)(B) and
§ 1182(a)(9)(C) persuades us that Congress did not clearly
intend § 1182(a)(9)(C)(i)(I) to have an exclusively prospec-
tive effect, we do not view this as a sufficiently clear state-
8414 CARRILLO DE PALACIOS v. HOLDER
ment that Congress intended § 1182(a)(9)(C)(i)(I) to operate
retroactively. In the first step of the Landgraf analysis, we
must “determine whether Congress has expressly prescribed
the statute’s proper reach.” Landgraf, 511 U.S. at 280
(emphasis added). At this stage of the analysis, a mere “infer-
ence of intent to apply [a] . . . provision retroactively” is
insufficient, because “we require a clear statement for that.”
Fernandez-Vargas, 548 U.S. at 41. No such “clear statement”
of retroactivity exists with respect to § 1182(a)(9)(C)(i)(I), so
we must proceed to the second step of Landgraf. See, e.g.,
Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1325 (9th Cir.
2006) (“[W]e must proceed to the second step of the Landgraf
approach unless Congress’s intent that the statute be given
retroactive application is clear.”).
Under the second step of the analysis, “we ask whether
applying the statute to the person objecting would have a
retroactive consequence in the disfavored sense of ‘affecting
substantive rights, liabilities, or duties on the basis of conduct
arising before its enactment.’ ” Fernandez-Vargas, 548 U.S.
at 37 (alterations omitted) (quoting Landgraf, 511 U.S. at
278). It is important to define the “conduct” that the statute
addresses. “The conclusion that a particular rule operates
‘retroactively’ . . . concern[s] the nature and extent of the
change in the law and the degree of connection between the
operation of the new rule and a relevant past event.” Land-
graf, 511 U.S. at 270 (emphasis added). A statute is retroac-
tive if it creates a “new disability consequent to a completed
act.” Fernandez-Vargas, 548 U.S. at 45 (emphasis added).
“[A] statute ‘is not made retroactive merely because it draws
upon antecedent facts for its operation.’ ” Landgraf, 511 U.S.
at 269 n.24 (quoting Cox v. Hart, 260 U.S. 427, 435 (1922)).
A law that applies to conduct occurring “after the effective
date of the new law” may “look[ ] back to a past act” without
being impermissibly retroactive. Fernandez-Vargas, 548 U.S.
at 44; see also McAndrews v. Fleet Bank of Mass., N.A., 989
F.2d 13, 16 (1st Cir. 1993) (“[A] statute may modify the legal
effect of a present status or alter a preexisting relationship
CARRILLO DE PALACIOS v. HOLDER 8415
without running up against the retroactivity hurdle. . . . So
long as a neoteric law determines status solely for the purpose
of future matters, its application is deemed prospective.”).
[6] Under this line of analysis, Carrillo de Palacios’s retro-
activity argument fails. Section 1182(a)(9)(C)(i)(I) regulates
the conduct of reentering the United States without being
admitted, not the conduct of being unlawfully present for
more than one year. The statute uses the present tense “enters
or attempts to reenter” when referring to the alien’s reentry,
but uses the participle “has been unlawfully present” when
referring to the alien’s unlawful presence. 8 U.S.C.
§ 1182(a)(9)(C)(i)(I); see also 1 U.S.C. § 1 (“words used in
the present tense include the future as well as the present”);
United States v. Cook, 497 F.2d 753, 767 (9th Cir. 1972) (Ely,
J., dissenting) (noting that past or perfect participle refers to
conduct that is “complete” rather than “in progress”). As a
result, it is the alien’s present or future reentry that triggers
§ 1182(a)(9)(C)(i)(I), not her past unlawful presence. See
Cox, 260 U.S. at 435 (“The language in terms applies to one
who at the time of the enactment occupied a particular status,
viz. the status of a person who has done the things enumer-
ated. A statute is not made retroactive merely because it
draws upon antecedent facts for its operation.”).
[7] Here, the legal “disability” (inadmissibility) arises from
the alien’s post-IIRIRA act of unlawfully entering the coun-
try, not the alien’s pre-IIRIRA accrual of unlawful presence.
Fernandez-Vargas, 548 U.S. at 45. The alien’s prior unlawful
presence is merely an “antecedent fact[ ]” that limits the scope
of § 1182(a)(9)(C)(i)(I)’s post-IIRIRA application. Landgraf,
511 U.S. at 269 n.24 (internal quotation marks omitted). In
other words, § 1182(a)(9)(C)(i)(I) applies on account of “the
alien’s choice to [reenter the country] after the effective date
of the new law,” not on account of “a past act,” such as prior
unlawful presence, “that he is helpless to undo up to the
moment the Government finds him out.” Fernandez-Vargas,
548 U.S. at 44. Because the relevant conduct was Carrillo de
8416 CARRILLO DE PALACIOS v. HOLDER
Palacios’s reentry “without being admitted” in September
1997 (after IIRIRA became effective), not her “unlawful[ ]
presen[ce] . . . for an aggregate period of more than 1 year”
in the early 1980s, § 1182(a)(9)(C)(i)(I) does not have a retro-
active effect. 8 U.S.C. § 1182(a)(9)(C)(i)(I); see also United
States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir. 1994)
(rejecting retroactivity challenge to criminal reentry statute
and stating that, “[f]or purposes of analyzing repeat offender
statutes and statutes increasing penalties for future crimes
based on past crimes, the relevant ‘offense’ is the current
crime, not the predicate crime”); accord United States v.
Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999) (en banc) (“The
Supreme Court and this court uniformly have held that recidi-
vist statutes do not violate the Ex Post Facto Clause if they are
on the books at the time the present offense was committed.”
(alteration and internal quotation marks omitted)).4
III. Exception to Inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C)(ii)
Because Palacios is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I), she may only seek adjustment of status
under § 1255(i) if she qualifies under the exception to inad-
4
Having independently analyzed the relevant statutes and case law, we
reject Carrillo de Palacios’s argument that we should defer to agency
interpretations of § 1182(a)(9)(C)(i)(I). “Because a statute that is ambigu-
ous with respect to retroactive application is construed under our prece-
dent to be unambiguously prospective, there is, for Chevron purposes, no
ambiguity in such a statute for an agency to resolve.” St. Cyr, 533 U.S. at
320 n.45 (citation omitted).
Under the less-deferential Skidmore analysis, we find Carrillo de Pala-
cios’s administrative authorities to be unpersuasive. See Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944). Carrillo de Palacios relies entirely on
agency dicta and conclusory, ipse dixit assertions. We decline to defer to
these statements under Skidmore, as they lack the “thoroughness evident
in [their] consideration, the validity of [their] reasoning,” or any of the
other typical “factors which give [them] power to persuade.” Skidmore,
323 U.S. at 140.
CARRILLO DE PALACIOS v. HOLDER 8417
missibility set forth in § 1182(a)(9)(C)(ii). Garfias-Rodriguez,
2011 WL 1346960, at *6; 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).
[8] 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 permis-
sion until ten years have elapsed since his [or her] last depar-
ture 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 read-
mission.”).
Carrillo de Palacios argues that these precedents are inap-
posite to her case. She notes that the prior cases involved peti-
tioners 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
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.)
[9] 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 Sec-
8418 CARRILLO DE PALACIOS v. HOLDER
retary. 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.
[10] Carrillo de Palacios’s argument places undue weight
on one portion of the relevant clause, while ignoring the sur-
rounding 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 satis-
fies 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 con-
tiguous territory.” Id. Although the statute is subject to differ-
ent 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 “reem-
bark[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.
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 depar-
ture”); 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. Com-
fort, 390 F.3d 1158, 1167 (10th Cir. 2004)).
CARRILLO DE PALACIOS v. HOLDER 8419
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 con-
curred with that view. Garfias-Rodriguez, 2011 WL 1346960,
at *5. The BIA has added that § 1182(a)(9) generally “seek[s]
to compound the adverse consequences of immigration viola-
tions.” In re Rodarte-Roman, 23 I. & N. Dec. 905, 909 (B.I.A.
2006). By requiring repeat immigration offenders to 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.
[11] 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 Pala-
cios’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, retro-
actively or prospectively, without regard to the 10-
year limitation set forth at [§ 1182](a)(9)(C)(ii).
8420 CARRILLO DE PALACIOS v. HOLDER
23 I. & N. Dec. at 876. This reasoning applies directly to Car-
rillo 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.
[12] Our prior discussions of § 1182(a)(9)(C)(ii) are there-
fore 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 inad-
missibility.6
CONCLUSION
Carrillo de Palacios is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I), and does not qualify for the
§ 1182(a)(9)(C)(ii) exception to inadmissibility. The BIA cor-
rectly 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 stat-
utory 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.