PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1176
___________
SHIREESHA REDDY CHERUKU1,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_______________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078-722-997
(U.S. Immigration Judge: Honorable Eugene Pugliese)
______________
Argued May 24, 2011
1
According to the I-485 adjustment of status application, the
petitioner‟s full name is “Shireesha Reddy Cheruku,” not
“Reddy Shireesha” as the IJ and BIA both stated in their
respective decisions. (A.R. 82, 86). We therefore amend the
caption and will refer to the petitioner by her last name,
Cheruku.
Before: McKEE, Chief Judge,
SCIRICA and RENDELL, Circuit Judges.
(Filed: September 22, 2011)
EDWARD J. CUCCIA, ESQUIRE (ARGUED)
Ferro & Cuccia
100 Lafayette Street, Suite 201
New York, New York 10013
Attorney for Petitioner
PATRICK J. GLEN, ESQUIRE (ARGUED)
BENJAMIN ZEITLIN, ESQUIRE
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Reddy Cheruku filed a petition for review of the BIA‟s
decision affirming denial of her application to adjust her
status to that of a lawful permanent resident under the Legal
Immigration Family Equity Act, 8 U.S.C. § 1255(i), because
she was found inadmissible under 8 U.S.C. §
1182(a)(9)(B)(i)(II). We will deny the petition for review.
2
I.
The facts are undisputed. Cheruku, a citizen of India,
entered the United States in 1995 on a B-1 visa, which she
subsequently overstayed. After her visa expired, she accrued
more than one year of unlawful presence in the United States.
In 1998, Cheruku and her employer filed an application for
labor certification that was approved in March 1999. Her
employer then filed a Petition for Alien Worker that was
granted on November 29, 2000. On December 21, 2001,
Cheruku applied to adjust her immigration status to that of a
lawful permanent resident under the Legal Immigration
Family Equity Act, 8 U.S.C. § 1255(i) (LIFE Act).
While her application for adjustment of status was
pending, Cheruku applied for and was granted an advanced
parole.2 The advanced parole document issued to Cheruku
warned that if she accrued more than 180 days of unlawful
presence subsequent to April 1, 1997, and subsequent to
applying for adjustment of status, and then departed the
United States, she “may be found inadmissible under section
212(a)(9)(B)(i) [8 U.S.C.§ 1182(a)(9)(B)(i)] of the Act when
[she] return[s] to the United States to resume the processing
of [her] application.” Notwithstanding this warning, Cheruku
traveled outside the United States and used the advanced
2
Advanced parole permits an alien temporarily to remain in
“the United States pending a decision regarding his
application for admission.” Bamba v. Rile, 366 F.3d 195, 196
n.2 (3d Cir. 2004). When used to enter the United States
initially or after travel, “„this amounts to permission . . . for
ingress into the country but is not a formal “admission”.‟” Id.
(quoting Chi Thon Ngo v. INS, 192 F.3d 390, 392 n.1 (3d Cir.
1999)).
3
parole to be permitted to reenter the United States upon her
return on November 28, 2002.
On April 28, 2004, Cheruku‟s application for
adjustment of status under the LIFE Act was denied because
her travel outside of the country rendered her inadmissible for
a period of ten years under 8 U.S.C. § 1182(a)(9)(B)(i)(II),
commonly referred to as the ten-year bar. She filed a petition
to reopen, which was denied on August 5, 2004. On August
31, 2004, Cheruku was served with a Notice to Appear
charging her with being removable under the ten-year bar, 8
U.S.C. 1182(a)(9)(B)(i)(II), because she had accrued more
than one year of unlawful presence in the United States,
departed the United States, and subsequently sought
admission within ten years of her departure.3
In removal proceedings, Cheruku renewed her
application for adjustment of status. The Immigration Judge
initially held he lacked jurisdiction over the adjustment
application because Cheruku was an arriving alien. In
response, Cheruku appealed to the BIA. The BIA remanded
proceedings to the IJ in light of intervening case law that
permits immigration judges to adjudicate certain adjustment
applications. The IJ denied Cheruku‟s application on
February 27, 2008, and granted her request for voluntary
departure. Cheruku timely appealed to the BIA.
Before the BIA, Cheruku made several arguments:
first, that the LIFE Act waived the statutory bar to
admissibility; second, that the circumstances of her departure
and return were factually distinguishable from those at issue
in prior BIA precedents; third, that the Department of
3
Cheruku concedes she is inadmissible under this provision.
4
Homeland Security (DHS) should be equitably estopped from
finding her inadmissible, or in the alternative, that she should
be afforded retroactive, nunc pro tunc, equitable relief; and
finally, that the grant of an advanced parole should require
DHS to disregard her departure.
The BIA denied Cheruku‟s appeal on December 18,
2009. In its decision, the BIA relied on its opinion In re
Lemus-Losa, 24 I. & N. Dec. 373, 379-80 (BIA 2007), in
which it held aliens inadmissible under § 1182(a)(9)(B)(i)(II)
are ineligible for adjustment of status under the LIFE Act.
The BIA noted the United States Court of Appeals for the
Seventh Circuit had called Lemus-Losa into question, see
Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009), but
reiterated its understanding of the statutes as set forth in
Lemus-Losa, 24 I. & N. Dec. 373. In addition, the BIA
emphasized the advanced parole document issued to Cheruku
explicitly warned that if she were to leave the United States,
she could be found inadmissible upon her return. The BIA
accordingly rejected Cheruku‟s equitable estoppel argument,
finding no misconduct on the part of DHS. The BIA also
rejected Cheruku‟s request for retroactive relief stating it was
precluded by statute from creating a retroactive waiver of
inadmissibility, and it rejected her argument that the advanced
parole document should render her departure a nullity.
Consequently, the BIA affirmed the Immigration Judge‟s
conclusion that Cheruku was ineligible for adjustment of
status, and granted her request for voluntary departure.
Cheruku timely petitioned for review of the BIA‟s
decision and renews her arguments on appeal.
II.
5
The BIA had appellate jurisdiction over Cheruku‟s
removal proceeding under 8 C.F.R. §§ 1003.1(b)(3) and
1240.15. We have jurisdiction to review final orders of
removal under the Immigration and Nationality Act (INA), 8
U.S.C. § 1252(a).
Because the BIA issued a fully reasoned opinion, we
review the BIA‟s opinion as the final agency decision.
Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106 (3d Cir.
2010). We review questions of law, such as the BIA‟s
interpretation of immigration statutes, de novo, “including
both pure questions of law and applications of law to
undisputed facts,” Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d
Cir. 2008), “subject to the principles of deference articulated
in Chevron v. [NRDC, 467 U.S. 837, 844] (1984),” Kaplun v.
Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010).
“The BIA‟s construction of the statute is entitled to
deference and must be accepted by the Court if it is based
upon a permissible construction of the statute.” Filja v.
Gonzales, 447 F.3d 241, 252 (3d Cir. 2006) (citing Chevron,
467 U.S. at 842-43). Such deference is “especially
appropriate in the immigration context where officials
exercise especially sensitive political functions that implicate
questions of foreign relations.” INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (internal quotation omitted).
We conduct a two-part inquiry, first asking “whether
„the statute is silent or ambiguous with respect to the specific
issue‟ before [us].” Id., at 424 (quoting Chevron, 467 U.S. at
843). If the statute‟s language is clear and unambiguous, we
uphold the plain meaning of the statute. See INS v. Cardoza-
Fonseca, 480 U.S. 421, 432-33 & n.12 (1987). But if the
statute is silent or ambiguous, “„the question for the court [is]
6
whether the agency's answer is based on a permissible
construction of the statute.‟” Aguirre-Aguirre, 526 U.S. at
424 (quoting Chevron, 467 U.S. at 843). When the ambiguity
is implicit, “if the [BIA‟s] construction is reasonable,
Chevron requires a federal court to accept the agency‟s
construction of the statute, even if the agency‟s reading
differs from what the court believes is the best statutory
interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 980 (2005).
III.
A.
On appeal, Cheruku challenges the BIA‟s
determination that her inadmissibility under 8 U.S.C. §
1182(a)(9)(B)(i)(II) precludes her adjustment of status under
the LIFE Act, 8 U.S.C. § 1255(i). In support, she contends
the LIFE Act waives the statutory ten-year bar to
admissibility. Conversely, the Government contends the
conflict between the provisions of the LIFE Act and certain
grounds for inadmissibility introduces ambiguity into the
statutory scheme and, consequently, that we owe deference to
the BIA‟s reasonable statutory interpretation.
1.
Our first task is to determine whether the statutory
scheme is ambiguous. Aguirre-Aguirre, 526 U.S. at 424. In
1994, Congress amended the INA by adding a new section—
245(i), codified as 8 U.S.C. § 1255(i)—otherwise known as
the LIFE Act. In re Briones, 24 I. & N. Dec. 355, 358-61
(BIA 2007). The LIFE Act was enacted to permit certain
aliens unlawfully present in the United States to apply to
7
adjust their statuses to that of lawful permanent residents
without having to undergo consular inspection and admission
abroad.4 See Briones, 24 I. & N. Dec. at 359-61. On its face,
4
In relevant part, § 1255(i) reads:
(i) Adjustment in status of certain aliens
physically present in United States
(1) Notwithstanding the provisions of
subsections (a) and (c) of this section, an
alien physically present in the United
States—
(A) who—
(i) entered the United States without
inspection; or
(ii) is within one of the classes
enumerated in subsection (c) of this
section;
(B) who is the beneficiary (including a
spouse or child of the principal alien, if
eligible to receive a visa under section
1153(d) of this title) of—
(i) a petition for classification under
section 1154 of this title that was filed
with the Attorney General on or
before April 30, 2001; or
(ii) an application for a labor
certification under section
1182(a)(5)(A) of this title that was
filed pursuant to the regulations of the
Secretary of Labor on or before such
date; and
(C) who, in the case of a beneficiary of a
petition for classification, or an
8
§ 1255(i)(2)(A) of the LIFE Act requires an alien to be
“admissible” to the United States in order to qualify for
adjustment.
In 1997, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), Pub. L.
No. 104-208 § 301, 110 Stat. 3009-546, 3009-577-78 (1997),
application for labor certification,
described in subparagraph (B) that was
filed after January 14, 1998, is physically
present in the United States on December
21, 2000;
may apply to the Attorney General for the
adjustment of his or her status to that of an alien
lawfully admitted for permanent residence
....
(2) Upon receipt of such an application and
the sum hereby required, the Attorney
General may adjust the status of the alien to
that of an alien lawfully admitted for
permanent residence if—
(A) the alien is eligible to receive an
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.
....
Congress later amended the section, extending its expiration
date, and adding additional requirements. See Padilla-
Caldera v. Holder, 637 F.3d 1140, 1148 n.7 (10th Cir. 2011).
9
which, among other things, added several statutory provisions
to the INA rendering certain groups of aliens inadmissible.
See Briones, 24 I. & N. Dec. at 358. Section 1182(a)(6)(A)(i)
of the INA, added by IIRIRA, generally renders inadmissible
those who are “present in the United States without being
admitted or paroled, or who arrive[] in the United States at
any time or place other than as designated by the Attorney
General.” Congress also added other, more specific, bars to
admissibility when it enacted IIRIRA. The provisions of §
1182(a)(9)(C) render inadmissible aliens having certain prior
immigration violations, and the provisions of § 1182(a)(9)(B)
render inadmissible for a period of time aliens who have
accrued a period of unlawful presence.
The adjustment provisions of § 1255(i) are clearly in
tension with the bars to admissibility set forth in §
1182(a)(6)(A)(i). Further complicating matters, the prefatory
language of § 1182(a) states that “[e]xcept as otherwise
provided in this chapter, aliens who are inadmissible . . . are
ineligible to be admitted to the United States.” Unless this
“savings clause” is applied, a straightforward application of §
1182(a)(6)(A)(i) would render the LIFE Act a nullity by
barring from adjustment any individual not admitted or
paroled. See Mora v. Mukasey, 550 F.3d 231, 237-38 (2d Cir.
2008). Because we are “unable to infer from the statutory
language the way in which 1255(i) implicitly waives unlawful
presence as a ground for inadmissibility,” we join with our
sister circuits in finding the statute ambiguous. Herrera-
Castillo v. Holder, 573 F.3d 1004, 1008 (10th Cir. 2009),
cert. denied, 130 S. Ct. 3505 (2010); see also Garfias-
Rodriguez v. Holder, No. 09-72603, --- F.3d ----, 2011 U.S.
App. LEXIS 7406, at *15 (9th Cir. Apr. 11, 2011); Padilla-
Caldera v. Holder, 637 F.3d 1140, 1148 (10th Cir. 2011);
10
Ramirez v. Holder, 609 F.3d 331, 336 (4th Cir. 2010);
Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th Cir.
2010); Villanueva v. Holder, 615 F.3d 913, 915 (8th Cir.
2010); Mora, 550 F.3d at 237-38; Ramirez-Canales v.
Mukasey, 517 F.3d 904, 908 (6th Cir. 2008); Mortera-Cruz v.
Gonzales, 409 F.3d 246, 253 (5th Cir. 2005).
2.
Having found the statute to be ambiguous, we evaluate
whether the BIA‟s interpretation of the statutes is reasonable.
See Brand X Internet Servs., 545 U.S. at 980. The BIA has
read § 1255(i) as an implicit waiver of inadmissibility under §
1182(a), but only for those aliens who are inadmissible under
§ 1182(a)(6)(A)(i). See Briones, 24 I. & N. Dec. at 365.
According to the BIA, “[LIFE Act] adjustment remains
available to aliens inadmissible under [1182(a)(6)(A)(i)] only
because a contrary interpretation would render the language
of [the LIFE Act] so internally contradictory as to effectively
vitiate the statute, an absurd result that Congress is presumed
not to have intended.” Id. (citing Demarest v. Manspeaker,
498 U.S. 184, 190-91 (1991)).
The BIA has not, however, found the more specific
bars to admissibility, added by IIRIRA, to be waived by the
LIFE Act. In Briones, the BIA also held that adjustment of
status under the LIFE Act is unavailable to recidivist
immigration violators barred from admission under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I). See id. at 371. Every circuit court of
appeals to review the Briones decision has upheld it as a
reasonable interpretation of the statutory scheme. See
Garfias-Rodriguez, 2011 U.S. App. LEXIS 7406, at *15;
Padilla-Caldera, 637 F.3d at 1152; Ramirez, 609 F.3d at 337;
Renteria-Ledesma, 615 F.3d at 908; Villanueva, 615 F.3d at
11
915; Mora, 550 F.3d at 239; Ramirez-Canales, 517 F.3d at
910.
In Lemus-Losa, the BIA considered the provision at
issue here, which renders inadmissible any alien who “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.”5 8 U.S.C. § 1182(a)(9)(B)(i)(II). The BIA held
aliens who are inadmissible under this provision are ineligible
for adjustment of status under the LIFE Act absent the grant
of a waiver. See Lemus-Losa, 24 I. & N. Dec. at 378.
The BIA offered several reasons in support of its
interpretation. Notably, the BIA distinguished the specific
inadmissibility provisions of § 1182(a)(9)(B)(i)(II) from the
more general inadmissibility provision of § 1182(a)(6)(A)(i).
Id. at 378. It reaffirmed its conclusion that the general
provisions of § 1182(a)(6)(A)(i) would render the LIFE Act a
nullity, but it concluded application of the inadmissibility
provisions of § 1182(a)(9)(B)(i)(II) would not lead to such an
absurd result. Id. Rather, the BIA explained that unlike §
1182(a)(6)(A)(i), which simply punishes those who enter the
country without inspection, the ten-year bar of §
1182(a)(9)(B)(i)(II) “punishes aliens who seek admission . . .
after having previously accrued a period of unlawful status.”
Id. at 379. Consequently, the BIA concluded its
interpretation was consistent with the “overall purpose of
5
“Departure” has been read to include any departure, Lemus-
Losa, 24 I. & N. Dec. at 376-77, and Cheruku does not appear
to challenge BIA‟s construction of “departure.” In fact,
Cheruku does not contest her inadmissibility under this
provision at all.
12
[1182(a)(9)] to compound the adverse consequences of
immigration violations by making it more difficult for
individuals who have left the United States after committing
such violations to be lawfully admitted thereafter.” Id.
(quotation omitted).
The BIA also noted that whenever Congress has
“extended eligibility for adjustment of status to inadmissible
aliens, it has done so unambiguously.” Id. at 378. In support,
the BIA observed Congress had expressly provided a waiver
of inadmissibility under § 1182(a)(9)(B) for aliens seeking
adjustment of status under the Nicaraguan Adjustment and
Central American Relief Act, Pub. L. No. 105-100, 111 Stat.
2193 (1997), and the Haitian Refugee Immigration Fairness
Act, Pub. L. No. 105-277, 112 Stat. 2681-538 (1992). Lemus-
Losa, 24 I. & N. Dec. at 378 & n.5.
The two circuit courts of appeals to have reviewed the
BIA‟s decision in Lemus-Losa have reached opposite results.
The Tenth Circuit found the statute to be ambiguous and
upheld the BIA‟s interpretation of the statutory scheme as
reasonable. See Herrera-Castillo, 573 F.3d at 1009. A few
weeks later, the Seventh Circuit considered the same issue. It
observed that § 1182(a)(9)(C)(i)(I),6 the provision at issue in
6
This section provides:
(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
13
Briones, and § 1182(a)(9)(B)(i)(II)7 “both are triggered by an
initial sojourn in the United States that was unlawful,” but
enters or attempts to reenter the United States
without being admitted is inadmissible.
(ii) Exception Clause (i) shall not apply to an
alien seeking admission 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 has consented to the alien‟s
reapplying for admission.
8 U.S.C. § 1182(a)(9)(C)(i).
7
This section provides:
(i) In general Any alien (other than an alien
lawfully admitted for permanent residence)
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
(whether or not pursuant to section 1254a(e) of
this title) 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.
14
that (C)(i)(I) applies to aliens “who enter[] or attempt[] to
reenter the United States without being admitted,” while
(B)(i)(II) applies to aliens “who again seek[] admission
within ten years of the alien‟s departure or removal from the
United States.” Lemus-Losa, 576 F.3d at 757 (quotations and
emphasis omitted). Consequently, in its view, §
1182(a)(9)(B)(i)(II) should be treated analogously to §
1182(a)(6)(A)(i) because “if someone is „seeking admission‟
to the United States on that second occasion and has thus
demonstrated that he is willing to play by the rules, he is no
different from the alien who is physically present in the
United States „without inspection‟ but who is entitled to apply
for LIFE Act relief.” Lemus-Losa, 576 F.3d at 761.
Accordingly, it held the BIA erred because it “did not pay
sufficient heed to the difference between § (B)(i)(II), . . . and
§ (C)(i)(I),” granted the petition for review, and remanded the
case to the BIA for further proceedings.8 Id.
3.
Cheruku urges us to adopt the Seventh Circuit‟s
position that, on the balance, § 1182(a)(9)(B)(i)(II) is
distinguishable from § 1182(a)(9)(C)(i)(I), and should be read
analogously to § 1182(a)(6)(A)(i), which the BIA reads as
being implicitly waived by the LIFE Act.9 Relying on
8 U.S.C. § 1182(a)(9)(B)(i)(II)(footnote omitted).
8
Although the Seventh Circuit noted Chevron controlled its
analysis, Lemus-Losa, 576 F.3d at 755-56, it does not appear
to have applied that framework. It neither explicitly found
the statute to be ambiguous, nor explicitly held the BIA‟s
interpretation of the statute to be unreasonable.
9
Cheruku appears to contend in the alternative that Lemus-
Losa is distinguishable because, unlike the petitioner in
15
Lemus-Losa, she stresses that, by applying for and being
granted advanced parole, she “demonstrated [she] is willing
to play by the rules.” The Seventh Circuit‟s view regarding
harsher treatment for those who do not play by the rules has
considerable appeal and were we not constrained by Chevron
we might agree. But principles of deference require a
different result.
The BIA reasonably concluded the general
inadmissibility provision of § 1182(a)(6)(A)(i) is
distinguishable from the more specific provision of §
1182(a)(9)(B)(i)(II). Lemus-Losa, 24 I. & N. Dec. at 378.
Unlike the bar to admissibility in § 1182(a)(6)(A)(i),
application of the ten-year bar does not render the LIFE Act a
nullity. Id. The group of aliens barred by § 1182(a)(6)(A)(i)
simply because they are unlawfully present is not coextensive
with the smaller group of aliens barred under §
1182(a)(9)(B)(i)(II) because they accrue a period of unlawful
presence, depart, and subsequently return seeking lawful
admission within ten years of the departure. An interpretation
upholding the § 1182(a)(6)(A)(i) bar would make unlawful
presence “„both a qualifying and a disqualifying condition for
adjustment of status,‟” Herrera, 573 F.3d at 1007 (quoting
Briones, 24 I. & N. Dec. at 362); see also Lemus-Losa, 24 I.
& N. Dec. at 378, but the same cannot be said for §
1182(a)(9)(B)(i)(II). Thus, no implicit waiver is required to
Lemus-Losa, who departed the United States and returned
through an illegal border crossing, Cheruku traveled on a duly
issued advanced parole before seeking admission into the
United States. This argument is unavailing. Regardless of
the circumstances of departure and return, both petitioners are
inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II).
16
give effect to the words of the statute. Under the BIA‟s
interpretation of the interplay between the ten-year bar and
the LIFE Act, the prohibition on departure is a
straightforward rule with which aliens seeking adjustment of
status must comply—a rule displayed on advanced parole
documents such as those issued to Cheruku.
We acknowledge that aliens inadmissible under §
1182(a)(9)(C)(i)(I) who attempt to enter or reenter without
being admitted may be more culpable than those under §
1182(a)(9)(B)(i)(II) who are seeking admission, but we do not
think this difference undermines the BIA‟s reasoning that the
provisions are similar. Both are specific bars to admissibility
as distinguished from the more general provision of §
1182(a)(6)(A)(i). Nor do we think the difference in relative
culpability absolves those barred by § 1182(a)(9)(B)(i)(II) of
all culpability or leads to the inevitable conclusion that
Congress implicitly intended to waive inadmissibility for
those aliens. While we may question whether the policy
choices furthered by the BIA‟s interpretation of the statutory
scheme are wise, we remain mindful that “the place to resist
unwise or cruel legislation touching aliens is the Congress,
not th[e] [c]ourt[s].” Harisiades v. Shaughnessy, 342 U.S.
580, 598 (1952) (Frankfurter, J., concurring).
We believe the BIA‟s interpretation of the statutory
scheme is reasonable and consistent with Congress‟s intent.
See Herrera-Castillo, 573 F.3d at 1009. Under the ten-year
bar, an alien with a one-year period of unlawful presence in
the U.S. would not be eligible for consular admission and
inspection at all during the applicable bar period without a
waiver of inadmissibility. As explained by the BIA, the
provisions of § 1182(a)(9), including the ten-year bar, were
intended to deter aliens who had accrued unlawful presence
17
and then left the United States from later seeking admission.
Lemus-Losa, 24 I. & N. Dec. at 379. But the LIFE Act still
permits adjustment for an eligible alien who has accrued a
period of unlawful presence provided he or she does not
depart the United States before seeking admission. Although
this may sometimes lead to a harsh result, Congress has
provided some relief by granting the Attorney General
discretion to waive inadmissibility to accommodate family
unity in certain circumstances. 8 U.S.C. § 1182(a)(9)(B)(v).
We accord deference to the BIA‟s conclusion that “the
language and structure of the relevant statutes[,] along with
Congress‟s specific waivers in certain instances,” Herrera-
Castillo, 573 F.3d at 1009, best effectuates IIRIRA‟s goals,
Lemus-Losa, 24 I. & N. Dec. at 379, as well as the LIFE
Act‟s remedial purposes of lifting administrative burdens by
facilitating processing of aliens physically present in the
United States, and of promoting family unity, Briones, 24 I.
& N. Dec. at 360-61; Lemus-Losa, 24 I. & N. Dec. at 378.
Therefore we defer to the BIA‟s interpretation of the statutory
scheme.
B.
Cheruku also contends the DHS is equitably estopped
from denying her admission, or in the alternative, the BIA
erred in determining equitable retroactive relief was
unavailable to mitigate the harsh result of this case. Neither
argument has merit.
Cheruku contends the DHS should be estopped from
denying her admission because she was deceived into
believing the advanced parole would immunize her against a
later finding of inadmissibility. To prevail, Cheruku must
show that the DHS made a misrepresentation upon which she
18
reasonably relied to her detriment, and that the DHS engaged
in affirmative misconduct. See Mudric v. Att’y Gen., 469
F.3d 94, 99 (3d Cir. 2006). Regardless of how Cheruku
interpreted the advanced parole document, the words on the
document clearly stated:
If, after April 1, 1997, you were unlawfully
present in the United States for more than 180
days before applying for adjustment of status,
you may be found inadmissible under section
212(a)(9)(B)(i) of the Act when you return to
the United States to resume the processing of
your application. If you are found inadmissible,
you will need to qualify for a waiver of
inadmissibility in order for your adjustment of
status application to be approved.
The document explicitly warned Cheruku that by traveling on
the advanced parole, she may render herself inadmissible.10
Accordingly, she has failed to demonstrate any
misrepresentation or affirmative misconduct by DHS.
Cheruku was mistaken concerning the consequences of
departing the United States under her advanced parole. While
regrettable, this cannot form the basis of an equitable estoppel
claim.
10
Cheruku also appears to argue that the BIA should treat
travel on an advanced parole as if the travel never occurred.
The advanced parole clearly anticipates travel, as well as
possible effects on an alien‟s admissibility as a result of
travel. Cheruku cites no authority in support of her assertion,
and there is no basis for us to conclude that travel on an
advanced parole should be excused.
19
Nor can we say the denial of retroactive equitable
relief was in error. Retroactive relief, often referred to as
nunc pro tunc relief, has “long [been] employed by the
immigration authorities, based on what they believe to be
implied statutory authority to provide relief from the harsh
provisions of the immigration laws in sympathetic cases.”
See Gonzalez-Balderas v. Holder, 597 F.3d 869, 870 (7th Cir.
2010) (citing Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir.
2005); Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004)).
But the BIA has generally limited the grant of orders nunc
pro tunc to a few limited circumstances. It appears to have
granted such retroactive relief only to permit the exercise of
discretion to allow an alien to reapply for admission, to apply
the law as it existed when the alien violated the immigration
laws, Ramirez-Canales, 517 F.3d at 910, or to correct an error
in immigration proceedings, Edwards, 393 F.3d at 309.
Here, the BIA concluded nunc pro tunc relief was
unavailable based on its decision in In re Torres-Garcia, 23 I.
& N. Dec. 866, 876 (BIA 2006). In Torres-Garcia, the BIA
held that because the statutory provisions of § 1182(a)(9) of
the INA clearly delineate the limited conditions under which
the DHS has the discretion to grant waivers of
inadmissibility, grant of a de facto waiver not specified by
statute would be inconsistent with congressional intent. Id. at
874-76. Specifically, Torres-Garcia rejected the contention
that the waiver provision of 8 C.F.R. § 212.2 granted
discretion to waive inadmissibility under § 1182(a)(9)(C)(i).11
Id. at 876. This interpretation has been affirmed by circuits
that have considered the issue. See Gonzalez-Balderas, 597
11
As noted, §§ 1182(a)(9)(B) & (C) were both added to the
INA when Congress enacted IIRIRA.
20
F.3d at 869-71; Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir.
2008); Gonzales v. DHS, 508 F.3d 1227, 1241-42 (9th Cir.
2007).
Cheruku does not contend the regulations in 8 C.F.R. §
212.2 authorize the grant of a waiver. Nor does she contend
her case falls within any of the traditional categories for
which the BIA has granted nunc pro tunc relief. Rather, she
simply contends without support that the BIA could have
exercised equitable relief. But “[a] court may not award
equitable relief in contravention of the expressed intent of
Congress.” Edwards, 393 F.3d at 309 (citing INS v.
Pangilinan, 486 U.S. 875, 883-85 (1988)). As noted,
Cheruku was found inadmissible under § 1182(a)(9)(B)(i)(II).
Section 1182(a)(9)(B)(i)(II)(iii) delineates exceptions to
inadmissibility, and § 1182(a)(9)(B)(v) expressly sets forth
the conditions under which the DHS may waive
inadmissibility, which pertain exclusively to family unity.
Cheruku is not eligible for any statutory waiver to
inadmissibility since her adjustment application relies on her
work status rather than on any family connection.
Accordingly, because Congress clearly delineated the
situations in which the Attorney General may exercise
discretion to grant a waiver to inadmissibility under this
section, the BIA did not err in holding equitable nunc pro
tunc relief is foreclosed by the plain language of the statute.12
See Gonzalez-Balderas, 597 F.3d at 870 (“The statute is clear
and the Board‟s ruling correct . . . .”); Ramirez, 609 F.3d at
337 n.7 (rejecting without discussion petitioner‟s arguments
12
We note that even if there were ambiguity on this point, we
would find the BIA‟s interpretation to be reasonable.
21
that remand should be granted to remedy the BIA‟s denial of
nunc pro tunc relief).
IV.
For the foregoing reasons, we will affirm the judgment
of the BIA and deny the petition for review.
22
McKee, Chief Judge, concurring.
Although I agree that Cheruku is inadmissible for
adjustment of status under a strict interpretation of 8 U.S.C. §
1182(a)(9)(B)(i)(II) as explained by my colleagues, I write
separately because the result we must reach is as unjust as it
is unreasonable.1
Cheruku is an educated software engineer who is
employed and her employer is trying to help her remain in the
United States. (A.R. 66, 333). She is a highly skilled
professional who, according to her employer, is engaged in
“research, design, and develop[ment] [of] software and
programs for high tech medical, industrial, scientific,
financial business applications, lead[ing] teams of
programmers and systems analysts in projects,” and
“develop[ing] and direct[ing] systems testing procedures,
programming and documentation.” (A.R. 258). She has no
criminal record, nor can she be characterized as the type of
“recidivist immigration violator” that Congress appropriately
seeks to exclude from this country. 8 U.S.C. §
1182(a)(9)(C)(i).
Moreover, nothing on this record suggests that
Cheruku has done anything other than pay all applicable taxes
while employed here, and she clearly has a demonstrated skill
in a highly specialized field that this country needs to be
competitive in several important industries. (A.R. 263-69).
In addition, Cheruku’s continued presence in this country
does not portend any drain on social resources. In short, as
her employer’s affidavit suggests, she appears to be exactly
the kind of person the United States should welcome. (A.R.
258).
Cheruku did not enter the United States illegally.
Rather, she arrived on a visitor’s visa, and then re-entered the
country in 2002 pursuant to a grant of advanced parole.
1
According to the I-485 adjustment of status application, the
petitioner’s full name is “Shireesha Reddy Cheruku,” not
“Reddy Shireesha” as the IJ and BIA both stated in their
respective decisions. (A.R. 82, 86). We will therefore refer
to the petitioner by her last name, Cheruku.
1
Although she overstayed her original visa, she later made a
concerted effort to “play by the rules” by applying for
advanced parole with the assistance of counsel.
Ironically, it seems quite likely that Cheruku only left
the country in the first place because the United States gave
her permission to return. The Government now seeks to
remove her because she left the country after she applied for,
and received, a document from the Government explicitly
allowing her to leave. As the Immigration Judge quite
correctly observed, the advanced parole document she was
given was “at best a schizophrenic document,” because on
one hand “[i]t says we’re going to allow you to do something,
but then we might change our mind and not allow you to do it
or something like that. You can always leave, but you might
not be able to get back.” (A.R. 76).
Yet, as my colleagues explain, the statute says what it
says and it is not our job to rewrite what Congress has
decreed unless a literal application of the statute would “lead
to a patently absurd result that no rational legislature could
have intended.” Barrios v. Att'y Gen. 399 F.3d 272 (3d Cir.
2005). Although I do not think that is the general case here
and therefore do not dissent from the majority opinion, I
nevertheless think that as applied to Cheruku, the result we
reach today suggests the wisdom of Charles Dickens’
condemnation of the law that was uttered by Mr. Bumble in
Oliver Twist.2
The majority correctly points out that Cheruku was
technically placed on notice that her immigration status could
be in jeopardy if she left the country because of the warning
on her advanced parole document. That warning states:
NOTICE TO APPLICANT:
Presentation of this authorization will
permit you to resume your application
for adjustment of status upon your
2
Mr. Bumble is the despicable character in Oliver Twist who
said: “if the law supposes that, then the law is [absurd].”
Bumble’s actual quote is far more expressive and irreverent.
2
return to the United States. If your
adjustment application is denied, you
will be subject to removal proceedings
under section 235(b)(1) or 240 of the
Act. If after April 1, 1997, you were
unlawfully present in the United
States for more than 180 days before
applying for adjustment of status, you
may be found inadmissible under
section 212(a)(9)(B)(i) of the Act
when you return to the United States
to resume the processing of your
application. If you are found
inadmissible, you will need to quality
for a waiver of inadmissibility in order
for your adjustment of status
application to be approved.
I am not at all sure that someone who is born in the
United States and is fluent in English could comprehend this
warning. I am far less certain that someone in Cheruku’s
situation could. The language is confusing and ambiguous as
the Immigration Judge explained. The phrase: “presentation
of this authorization will permit you to resume your
application,” (emphasis added), leads one to believe that
Cheruku should indisputably have been able to pick up where
she left off with her adjustment of status application once she
returned to the United States. However, the warning then
states, “you may be found inadmissible” (emphasis added).
The latter implies that Cheruku may not be admissible under
some unknown statute, but just as equally implies that she
may very well be found admissible. The fact that “will”
precedes “may” could easily mislead a person to believe that
his/her adjustment of status would not be adversely affected
by a departure. The situation is further complicated by the
fact that there is no explanation of what section 235(b)(1) or
240 of the Act or section 212(a)(9)(B)(i) mean. Nor is there
any information about how these statutes could impact a
person’s adjustment of status application. As a matter of law,
Cheruku is, of course, charged with understanding the
convoluted and hyper technical language on the form she
received, but Mr. Bumble’s proclamation summarizes the
reality of the situation.
3
Nevertheless, although I am troubled by our decision
today, I am cautiously optimistic that our decision may not
foreclose Cheruku’s ability to remain here nor deprive this
country of her talents. On August 18, 2011, the Department
of Homeland Security issued a letter and accompanying
guidelines announcing that it plans to better focus its limited
resources on deporting a more select (and appropriate) group
of aliens. See DHS Letter to Senators Regarding Shift In
Policy on Immigration Enforcement (Aug. 18, 2011),
available at
http://www.ilw.com/immigrationdaily/news/2011,0819-
prosecutorialdiscretion.pdf. Cheruku is not in the class of
aliens that the Government's immigration efforts will be
focused on. Rather, DHS will now concentrate its resources
on “enhancing border security and identifying and removing
criminal aliens, those who pose a threat to public safety and
national security, repeat immigration law violators and other
individuals prioritized for removal.” Id. at 1. As part of this
new strategy, DHS has initiated an interagency working
group to “execute a case-by-case review of all individuals
currently in removal proceedings to ensure that they
constitute our highest priorities.” Id. at 2. I can only hope
that Cheruku will be afforded such review and that the result
will be favorable to her.
My optimism in that regard is buttressed by a
memorandum issued by U.S. Immigration and Customs
Enforcement proving guidance to “ICE” law enforcement
personnel and attorneys for the exercise of discretion in
removing aliens. See Memorandum Regarding Exercising
Prosecutorial Discretion Consistent with the Civil
Immigration Enforcement Priorities of the Agency (June 1,
2011), available at http://www.ice.gov/doclib/secure-
communities/pdf/prosecutorial-discretion-memo.pdf. Some
of the discretionary factors that ICE will consider include the
person’s criminal history or lack thereof, whether the person
is otherwise likely to be granted temporary or permanent
status or other relief from removal, and the person’s length of
presence in the United States. Although it is certainly not our
place to tell an administrative agency how to apply its
policies, I do note that it appears that Cheruku would qualify
for a favorable exercise of discretion under the new policy
4
given her lack of criminal background, her employer’s desire
that she continue working as a software engineer, and her
residence in the United States for the last 16 years.
As early as 1875, the Supreme Court discussed the
value that immigrants bring to this country’s work force. The
Court explained, “[i]n addition to the wealth which some of
them bring, they bring still more largely the labor which we
need to till our soil, build our railroads, and develop the latent
resources of the country in its minerals, its manufactures, and
its agriculture.” Henderson v. Mayor of City of New York, 92
U.S. 259, 270 (1875). Of course, times have changed greatly
since then. The time for building railroads has come and
gone and the need for manual labor is now dwarfed by the
need for expertise in the scientific and technological
disciplines.
Nevertheless, the Court’s original premise is just as
true today as it was 130 years ago. Indeed, given the rise of
the “global village,” the interdependent nature of “national”
economies, and the global competition in the marketplace, the
need for highly specialized expertise is perhaps even greater
now than the need for manual labor was when the Court made
its observation in Henderson.
Given the finite resources of law enforcement and
immigration officials, as well as overburdened immigration
dockets, it is my hope that the Department of Justice may yet
decide that Cheruku can remain in the United States and
continue to function as a contributing member of this society.
5