United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 21, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-60894
_____________________
DAVID CASTILLO-AVALOS,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
__________________________________________________________________
Petition for Review
of an Order of the Board of Immigration Appeals
Agency Number A75 234 172
_________________________________________________________________
Before REAVLEY, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:1
This petition for review requires us to decide a close
question of statutory interpretation: Whether David Castillo-
Avalos (“Castillo”), who entered this country without inspection,2
is eligible to apply for an adjustment of his immigration status
under the Immigration and Nationality Act (“INA”), 8 U.S.C. §
1255(i). His eligibility is problematical because he is
inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I), which provides
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
For purposes of this opinion, we treat as synonymous the
phrases “entry without inspection”, “unlawful entry”, and “entry
without having been admitted or paroled.”
for inadmissibility if entry into this country without inspection
occurred after having been present in this country unlawfully for
more than one year. We are persuaded that § 1255(i), which cures
inadmissibility simply based on an alien’s entry without
inspection, does not apply to Castillo because under §
1182(a)(9)(C)(i)(I) he is inadmissible not merely because he
entered the country without inspection, but because he illegally
entered after he had accrued more than one year of unlawful
presence in the United States.
I
Castillo is a native and citizen of Mexico. He alleges that
he has lived in the United States since 1992, but conceded that he
has never had legal status in this country. In 1996, he married
Sandra Barajas Castro, then a lawful permanent resident of the
United States. She filed a relative immigrant visa petition on
behalf of Castillo, which was approved in October 1997. The
Castillos have a United States citizen son, born in Beaumont, Texas
in 1998.
In March 1999, Castillo had a minor run-in with the law, which
apparently led the Immigration and Nationality Service (“INS”)
agents to apprehend him, based on his entry without inspection.3
3
The INS ceased to exist on March 1, 2003. The newly created
Department of Homeland Security assumed the functions of the INS.
In this opinion, we will refer to the agency as the INS because the
actions relevant to this case took place before the transfer of
these functions to the Department of Homeland Security.
2
He was granted voluntary departure. He soon reentered the United
States without inspection on or about May 27, 1999. On August 31,
2000, the INS served Castillo with a Notice to Appear, charging him
with being subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as
an alien present in the United States without having been admitted
or paroled. In January 2001, Castillo appeared before an
Immigration Judge (“IJ”) and conceded that he was removable. The
IJ, however, granted a continuance to allow Castillo to apply for
an adjustment of status. Castillo submitted his application to the
immigration court, seeking adjustment pursuant to 8 U.S.C §
1255(i), which allows an alien, who is otherwise admissible, to
remain in the United States while adjusting his immigration status,
if he pays a fee. The IJ denied Castillo’s application, holding
that Castillo was inadmissible, and consequently ineligible for an
adjustment of his immigration status, under § 1182(a)(9)(C)(i)(I)
because he had been unlawfully present in the United States for an
aggregate period of more than one year after April 1, 1997 and had
then re-entered the country without inspection. The Board of
Immigration Appeals (“BIA”) affirmed the IJ’s decision without a
written opinion.
II
Thus, the question presented is whether Castillo’s
inadmissibility under § 1182(a)(9)(C)(i)(I) precludes adjustment of
3
his immigration status pursuant to § 1255(i).4 Section 1255(i)
authorizes the Attorney General, for a fee of $1,000, to adjust the
status of an alien who is physically present in the United States,
but who was not inspected at the border, if: 1) the alien is
eligible to receive a visa, 2) the visa is immediately available,
and 3) the alien is admissible into the United States for permanent
residence.
It is undisputed that at the time of his final hearing before
the IJ, Castillo was eligible to receive a visa, and the visa was
immediately available. Thus, the remaining question as to
Castillo’s eligibility is whether, under the relevant statutory
provisions, Castillo may be considered admissible into the United
4
Castillo also argues that § 1182(a)(9)(C) violates his
substantive due process rights and his equal protection rights.
Neither of these arguments has merit. It is well-established that
neither Castillo nor his family is constitutionally entitled to
have Castillo remain in the country in violation of the immigration
laws. See Bright v. Parra, 919 F.2d 31, 34 (5th Cir. 1990).
Furthermore, Congress may make classifications of aliens as long as
it has a facially legitimate reason for making the distinction.
See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 308 (5th Cir.
1999). Here, it seems clear that Congress has rationally chosen to
distinguish individuals who have effected multiple illegal entries
into this country or who have accrued significant unlawful presence
here from those who have entered illegally only a single time.
Next, Castillo argues that § 1182(a)(9)(C) is invalid because
it conflicts with Article 17 of the International Covenant on Civil
and Political Rights (“ICCPR”), which requires that no one shall be
subjected to arbitrary or unlawful interference with his or her
family. This argument is meritless because, among other reasons,
the ICCPR was ratified before the relevant statutory sections were
passed. “[W]hen a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of conflict
renders the treaty null.” Breard v. Greene, 523 U.S. 371, 376
(1998).
4
States. Section 1182 lists several classes of inadmissible aliens.
The statute provides that an alien is inadmissible if he is present
in the United States without having been admitted or paroled. 8
U.S.C. § 1182(a)(6)(A). The statute also provides that an alien is
inadmissible if he “has been unlawfully present in the United
States for an aggregate period of more than 1 year . . . and . . .
enters or attempts to reenter the United States without being
admitted.” 8 U.S.C. § 1182(a)(9)(C)(i). Thus, under the facts of
this case, Castillo is inadmissible under both (6)(A) and
(9)(C)(i)(I).
III
We have recently affirmed, in a factually indistinguishable
case, a BIA decision that, in the light of § 1255(i), §
1182(a)(6)(A) does not preclude an alien from applying for an
adjustment of status. Mortera-Cruz v. Gonzalez, --- F.3d ---, 2005
WL 1076166, at *5 (5th Cir. May 9, 2005). In Mortera-Cruz, we
found that “the conduct proscribed by section 1182(a)(9)(C)(i) is
both different from and more culpable than the conduct of a one-
time illegal alien subject to inadmissibility . . . only under
section 1182(a)(6)(A)(i).” Id. at *7. We then affirmed the BIA’s
dismissal of Mortera-Cruz’s petition for adjustment of status after
noting that the BIA’s ruling was not arbitrary and was therefore
entitled to Chevron deference. Id. at *7.
Because the present case is indistinguishable from Mortera-
Cruz, it is binding precedent in deciding this appeal and,
5
accordingly, we DENY the petition for review on the basis that §
1182(a)(9)(C)(i) precludes eligibility for adjustment of status
under § 1255(i).
PETITION DENIED.
6