In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3735
T OMAS B. T ORRES-R ENDON,
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. A038-873-715
A RGUED M AY 12, 2011—D ECIDED A UGUST 23, 2011
Before B AUER, FLAUM and E VANS , Circuit Judges.
B AUER, Circuit Judge. Petitioner Tomas B. Torres-Rendon
was born in Mexico and came to the United States to
find employment; his wife and children remained in
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-3735
Mexico. In 1982, Torres-Rendon purported to marry
an American woman while still married to his wife in
Mexico, and was admitted to the United States as a
lawful permanent resident in 1984. In 1987, Torres-
Rendon was convicted of delivery of a controlled sub-
stance, and in 1988, Immigration and Naturalization
Services (“INS”) issued him a Notice to Appear charging
that he was removable as an alien convicted of a con-
trolled substance offense. The removal proceedings
were suspended until 2009, when Torres-Rendon was
apprehended by the Department of Homeland Security
(“DHS”) while returning from a trip to Mexico. Torres-
Rendon conceded deportability as a controlled sub-
stance violator, but he applied for waivers of deporta-
tion under former § 241(f) and former § 212(c) of
the Immigration and Nationality Act (“INA”) and for
suspension of deportation pursuant to former INA
§ 244(a)(2). An immigration judge denied the waivers
and suspension of deportation; the Board of Immigration
Appeals (“BIA”) affirmed. For the following reasons,
we deny Torres-Rendon’s petition for review.
I. BACKGROUND
Torres-Rendon was born on March 3, 1954 in Puebla,
Mexico and is a native and citizen of Mexico. In Octo-
ber 1977, Torres-Rendon entered the United States
without inspection to find employment to support his
pregnant wife, Guillermina Gonzalez, and their daughter,
who both remained in Mexico. In the summer of 1978,
INS officials caught Torres-Rendon working without
No. 10-3735 3
authorization and ordered him to return to Mexico. In
1979, Torres-Rendon re-entered the United States with-
out inspection for a second time, this time with his wife.
Their third child was born in 1980, and in 1981,
Ms. Gonzalez returned to Mexico while Torres-Rendon
continued to work in Chicago and support his family
in Mexico.
In 1982, Torres-Rendon met and began dating an Ameri-
can woman, Phyllis Ash. Ms. Ash became pregnant
that year and Torres-Rendon married her while still
married to Ms. Gonzalez. Shortly after this second mar-
riage, Torres-Rendon returned to Mexico to visit his
children and Ms. Gonzalez, the woman he told Ms. Ash
was his ex-wife. Torres-Rendon returned to the United
States in March 1983, and Ms. Ash gave birth to a
child just a month later. Shortly after, Ms. Ash filed a
Form I-130, Petition for Alien Relative, on behalf of
Torres-Rendon, based on their (unbeknownst to her)
bigamous marriage. The petition was granted, and on
March 7, 1984, Torres-Rendon entered the United States
as a lawful permanent resident.
Later, Torres-Rendon separated from, and later
divorced, Ms. Ash. Ms. Gonzalez and their children
returned to the United States and were informed of
Torres-Rendon’s bigamous marriage. Torres-Rendon
began drinking heavily and using drugs and before long
began having encounters with the police. In 1987, Torres-
Rendon was convicted of delivery of a controlled sub-
stance and sentenced to six years of imprisonment;
he appealed the verdict.
4 No. 10-3735
On March 14, 1988, the INS ordered Torres-Rendon to
appear before an immigration judge to answer why he
should not be deported from the United States under
§ 241(a)(4) for having committed a crime involving
moral turpitude within five years of entry and under
§ 241(a)(11) for violating a law related to a controlled
substance based on his 1987 drug crime. At the initial
deportation hearing on July 19, 1988, Torres-Rendon’s
representative moved to administratively close proceed-
ings because of the ongoing direct appeal of his drug
conviction in state court; the motion was granted.
On July 13, 1990, a state appellate court overturned
Torres-Rendon’s drug conviction and remanded for a
new trial. On December 30, 1991, Torres-Rendon pleaded
guilty to delivery of cocaine and received two years
of imprisonment with credit for time already served.
The deportation proceedings were not re-opened.
Torres-Rendon subsequently resumed his life with
Ms. Gonzalez and their four children, seemed completely
rehabilitated, and began his own successful roofing
business. The family continued to visit relatives in
Mexico for short periods of time on a yearly basis. During
inspection at a port of entry upon Torres-Rendon’s
return to the United States from Mexico in 2009, a DHS
official discovered Torres-Rendon’s 1991 guilty plea
for his 1987 drug crime, which caused the DHS to re-
calendar the previously suspended deportation proceed-
ings.
Though somewhat lengthy, the history of Torres-
Rendon’s proceedings within the immigration court is
No. 10-3735 5
necessary. At the renewed deportation hearing on
August 19, 2009, the DHS amended the original order
and charged Torres-Rendon with deportability pursuant
to INA § 241(a)(4) for committing a crime involving
moral turpitude and deportability pursuant to INA
§ 241(a)(11) for violating a law related to a controlled
substance, based on his 1991 guilty plea for the 1987 drug
crime. Torres-Rendon filed for waivers of deportation
pursuant to former INA § 241(f), 8 U.S.C. § 1251(f) (we
will refer to this as the “§ 241(f) waiver”), and former
INA § 212(c), 8 U.S.C. § 1182(c) (we will refer to this as
the “§ 212(c) waiver”), and for suspension of deporta-
tion pursuant to former INA § 244(a)(2), 8 U.S.C.
§ 1254(a)(2). The immigration judge found that Torres-
Rendon was not eligible for a § 241(f) waiver because
his 1991 drug conviction rendered him not “otherwise
admissible” at the time of entry, that is, when he was
apprehended in 2009. The BIA also denied the § 241(f)
waiver, but found Torres-Rendon’s admissibility at the
time of his 2009 entry irrelevant and the immigration
judge’s decision on that issue misplaced. Instead, the
BIA found the § 241(f) waiver inapplicable to Torres-
Rendon by its own language. The immigration judge
further found Torres-Rendon ineligible for suspension
of deportation, and the BIA adopted the finding. Torres-
Rendon filed a petition for review with this court.
II. DISCUSSION
A. Waiver of Deportation
Torres-Rendon concedes his deportability as a con-
trolled substance offense violator under INA § 241(a).
6 No. 10-3735
He nevertheless contends that he has two potential
paths toward relief from deportation. First, prior to
April 1996, a § 212(c) waiver could be granted at the
discretion of the Attorney General to a lawful
permanent resident returning from abroad who could
establish that he was lawfully admitted for permanent
residence, that he has had a lawful and unrelinquished
domicile in the United States for seven consecutive
years, and that he merits a favorable exercise of discre-
tion, unless that individual had been convicted of one
or more aggravated felonies and had served a term of
imprisonment of at least five years. This relief is theoreti-
cally possible for Torres-Rendon, who pleaded guilty
in 1991 to delivery of a controlled substance.1 However,
Torres-Rendon was never a “lawful permanent resident”;
he obtained that status by way of a bigamous marriage
to Ms. Ash. Torres-Rendon attempted to remedy this
issue by seeking a § 241(f) waiver, which could give Torres-
Rendon permanent resident status and enable him to
meet the eligibility requirements of the § 212(c) waiver.2
1
Enacted on September 30, 1996, the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”) repealed
§ 212(c) in its entirety. The Supreme Court has since held
that § 212(c) relief remains available for aliens “whose con-
victions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible
for § 212(c) relief at the time of their plea under the law then
in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001).
2
In Matter of Sosa-Hernandez, 20 I. & N. Dec. 758, 760-61 (BIA
1993), the BIA held that a § 241(f) waiver waives not only
(continued...)
No. 10-3735 7
(Former § 241(f) waives removal of individuals who
were inadmissible at the time of entry because of fraud
or misrepresentation in the procurement of visas or
other documentation.3 )
So the threshold issue is whether Torres-Rendon is
eligible for a § 241(f) waiver, thus validating his “lawful
permanent resident” status and making him potentially
eligible for the § 212(c) waiver. The BIA wrote its own
rationale on this issue; we review only the BIA’s decision
on this issue. Kone v. Holder, 620 F.3d 760, 763 (7th Cir.
2010). But, where the BIA adopts and affirms the rea-
soning of the immigration judge, we look to the immigra-
tion judge’s opinion. Ursachi v. INS, 296 F.3d 592, 594
(7th Cir. 2002). We review legal conclusions de novo
and accord judicial deference to reasonable interpreta-
tions of the Immigration and Nationality Act. Gattem v.
Gonzales, 412 F.3d 758, 763 (7th Cir. 2005); Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
Torres-Rendon contends that the BIA’s finding that he
is statutorily ineligible for the § 241(f) and § 212(c)
2
(...continued)
deportability but also the underlying fraud, thereby
validating the applicant’s lawful permanent resident status
and making him theoretically eligible for a § 212(c) waiver.
3
An alien who had been admitted to the United States as a
lawful permanent resident but was actually excludable at the
time of entry due to fraud and who was placed in deportation
proceedings prior to the enactment of the Immigration Act
of 1990 (“IMMACT 90”) is eligible for a § 241(f) waiver.
8 No. 10-3735
waivers is a violation of his due process rights under
the Fifth Amendment. To the contrary, we agree
with the BIA that Torres-Rendon is not eligible for the
§ 241(f) form of relief and is thus ineligible for the § 212(c)
waiver as well. The relevant § 241(f) provision reads
in its entirety:
(1)(A) The provisions of this section relating to the
deportation of aliens within the United States on the
ground that they were excludable at the time of entry
as aliens who have sought to procure or have
procured visas or other documentation, or entry
into the United States, by fraud or misrepresenta-
tion, whether willful or innocent, may, in the discre-
tion of the Attorney General, be waived for any
alien (other than an alien described in subsection
(a)(19) of this section) who—
(i) is the spouse, parent, or child of a citizen of
the United States or of an alien lawfully admitted
to the United States for permanent residence; and
(ii) was in possession of an immigrant visa
or equivalent document and was otherwise ad-
missible to the United States at the time of such
entry except for those grounds of inadmissibility
specified under paragraphs (14), (20), and (21) of
section 1182(a) of this title which were a direct
result of that fraud or misrepresentation.
INA § 241(f) (1988).
We agree with the BIA that Torres-Rendon does not
qualify for this waiver by the plain language of the
statute. The waiver applies to “aliens within the United
No. 10-3735 9
States on the ground that they were excludable at the time
of entry as aliens who have sought to procure or
have procured visas or other documentation, or entry
into the United States, by fraud or misrepresentation.”
INA § 241(f)(1)(A) (emphasis added). Torres-Rendon
has never been charged or found deportable on grounds
based on fraud; he was charged only on grounds based
on his controlled substance offense. Although it is true
that Torres-Rendon’s lawful permanent resident status
was obtained by way of fraud, the DHS made the deci-
sion not to charge Torres-Rendon on those grounds.4
Since the DHS chose not to bring charges on those
grounds and the immigration judge likewise failed to
find Torres-Rendon deportable on those grounds, we
cannot review the ruling on this petition.5
4
The DHS was not made aware of Torres-Rendon’s bigamous
marriage and his fraudulent status until fairly late in the
immigration court proceedings against Torres-Rendon. Torres-
Rendon revealed his bigamous marriage during the pro-
ceedings in October 2009, after the DHS had already amended
the charging document and Torres-Rendon had conceded
deportability on the controlled substance ground. When this
information came to light, the DHS did not further amend
the charging document.
5
Our case law with regard to former INA § 212 supports this
conclusion. When INA § 212 was repealed in its entirety, the
Supreme Court’s decision in INS v. St. Cyr, supra note 1, was
codified, and the statutory counterpart rule was created. See 8
C.F.R. § 1212.3(f)(5) (providing that § 212(c) relief is available
to lawful permanent resident aliens who pleaded guilty
(continued...)
10 No. 10-3735
Torres-Rendon argues that his case is identical to
Matter of Sosa-Hernandez and urges us to adopt that case’s
reasoning and holding. In Sosa-Hernandez, the alien was
issued an order to show cause charging him with
deportability under INA § 241(a)(11) as an alien
convicted of a controlled substance violation based on a
conviction for possession with intent to distribute a
controlled substance. The alien conceded deportability
on those grounds, and the immigration judge also
5
(...continued)
before § 212(c) was repealed, but only if they satisfy the statu-
tory counterpart test). The statutory counterpart rule provides
that a removable alien is eligible for a § 212(c) waiver if
the ground for removability has a statutory counterpart or
comparable ground of inadmissibility under INA § 212(a).
This circuit has repeatedly indicated in statutory counterpart
cases that what the DHS could have charged as grounds for
removal is irrelevant. Frederick v. Holder, No. 09-2607, 2011
WL 1642811, at *4 (7th Cir. May 3, 2011) (finding that “under
[its] case law, what [the DHS] could have charged as grounds
for removal is irrelevant” in determining whether an alien is
eligible to apply to a former § 212(c) waiver, and what
matters is what the DHS actually chose to charge) (emphasis
in original); Zamora-Mallari v. Mukasey, 514 F.3d 679, 692 (7th
Cir. 2008) (stating, “an approach that focuses on the ground
that forms the actual basis for deportation is most appro-
priate given that the courts have already expanded the scope
of § 212(c) beyond its expressed coverage. . . . We decline to
further expand § 212(c) to look beyond the actual charges
of removability for purposes of determining comparability.”).
See also Reid v. INS, 420 U.S. 619, 623 (1975).
No. 10-3735 11
found the alien deportable under INA § 241(a)(1) as an
alien who was excludable at the time of entry. The BIA
affirmed that the alien was correctly found deportable
under both these sections. Sosa-Hernandez, 20 I. & N.
Dec. at 759 (“The respondent has not challenged his
deportability on appeal, and we find that the re-
spondent’s deportability under sections 241(a)(1) and
(11) of the Act has been established by clear, unequivocal,
and convincing evidence.”). The BIA held that the
alien could apply for a § 241(f) waiver to waive the fraud
at the time of entry to render him a lawful permanent
resident so that he may be eligible for a § 212(c) waiver
to cover his drug trafficking offense.
Torres-Rendon ignores a critical distinguishing factor
between himself and the alien in Sosa-Hernandez. In Sosa-
Hernandez, the immigration judge made a finding of
deportability under INA §§ 241(a)(1) and (11)
established by clear, unequivocal, and convincing evi-
dence, and the BIA affirmed this decision. In this case,
neither the immigration judge nor the BIA made a
finding regarding a charge of deportability based on
fraud. Torres-Rendon cannot request that he be charged
with additional grounds for deportability simply so that
he can take advantage of a waiver unavailable to him
otherwise. He is being deported for his drug offense.
Because we find that the § 241(f) waiver is not available
to him, we need not address Torres-Rendon’s remaining
§ 241(f) waiver arguments nor his arguments regarding
a § 212(c) waiver, which is likewise unavailable to him.
12 No. 10-3735
B. Suspension of Deportation
Torres-Rendon’s second avenue of relief from deporta-
tion is his application for suspension of deportation
under former INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1995)
(we will refer to this as “§ 244(a)(2)”). Under § 244(a)(2),
the Attorney General has discretion to suspend deporta-
tion of an alien lawfully admitted for permanent
residence who has been found deportable under INA
§ 241(a) if the individual (1) has been physically present
in the United States for a continuous period of not less
than ten years immediately following the commission of
the deportable act, (2) proves he is a person of good moral
character, and (3) whose deportation would result in
exceptional and extremely unusual hardship to him or
to his citizen or lawful permanent resident spouse, parent,
or child.
The immigration judge found that Torres-Rendon
could not establish ten years of physical presence because
INA § 240A(d), 8 U.S.C. § 1229b(d)(1), referred to as the
stop-time rule, precludes it; the BIA adopted this deci-
sion. Under the stop-time rule, the period of continuous
presence ends on the earliest date of (1) when the alien is
served a notice to appear, or (2) when the alien
has committed an offense under INA § 212(a)(2), 8 U.S.C.
§ 1182(a)(2), that renders him inadmissible or removable.
INA § 240A(d)(1). Furthermore, “service of a notice to
appear or an Order to Show Cause is not simply an in-
terruptive event that resets the continuous physical
presence clock, but is a terminating event, after which
continuous physical presence can no longer accrue.”
No. 10-3735 13
Matter of Mendoza-Sandino, 22 I. & N. Dec. 1236, 1241
(BIA 2000).
Torres-Rendon contends that the stop-time rule does
not apply to relief applications under § 244(a)(2), like
his own, and that it applies merely under § 244(a)(1).6
This argument is without merit; both the BIA and other
courts apply the stop-time rule to all applications for
suspension of deportation. In re Nolasco-Tofino, 22 I. & N.
Dec. 632, 641 (BIA 1999) (holding that the stop-time
rule applies to all suspension of deportation applica-
tions generally); see Angel-Ramos v. Reno, 227 F.3d 942 (7th
Cir. 2000). While the BIA and other courts defer to
Mendoza-Sandino, Torres-Rendon argues that we should
follow the split decision in Okeke v. Gonzales, 407 F.3d
585 (3d Cir. 2005). In Okeke, the court held that because
the alien lawfully re-entered the United States after
committing a controlled substance offense, the continuous
physical presence period should recommence. 7 Torres-
6
In Mendoza-Sandino, the BIA addressed the stop-time rule
as it applied to the 7-year suspension of deportation under
§ 244(a)(1) and did not speak to its application of the 10-year
suspension of deportation under § 244(a)(2).
7
The Okeke decision has been called into question and the
Third Circuit has declined to extend the decision in subse-
quent cases. See Briseno-Flores v. Atty. Gen. U.S., 492 F.3d 226 (3d
Cir. 2007) (finding that the alien stopped accruing time of
continuous physical presence when he committed his first
offense and noting: “we conclude that the BIA’s interpreta-
tion of § 1229b(d)(1) in Mendoza is reasonable, even though
(continued...)
14 No. 10-3735
Rendon contends this rationale should be found ap-
plicable to his situation. Even if we were to follow
Okeke, which we do not, Torres-Rendon overlooks a
key distinguishing factor—that his subsequent entries
into the United States were unlawful because he was
never a lawful permanent resident, having obtained
his status by way of a bigamous marriage.
The period of continuous physical presence ended at
the time Torres-Rendon committed his drug crime in
1987, or, in the alternative, when an Order to Show
Cause was issued to him in 1988. He cannot restart the
clock and accrue time for purposes of establishing his
continuous physical presence and thus cannot establish
10 years of continuous physical presence. Giving defer-
ence to the immigration court’s reasonable interpretation
of the INA, we affirm the decision that Torres-Rendon
is not eligible for suspension of deportation pursuant
to former INA § 244(a)(2).
7
(...continued)
others may disagree with it. Therefore, under Chevron, that
interpretation is entitled to deference.”).
No. 10-3735 15
III. CONCLUSION
For the reasons set forth above, Torres-Rendon’s petition
for review is D ENIED.
8-23-11