FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA MATILDE CARRILLO DE
PALACIOS, No. 09-72059
Petitioner, Agency No.
v. A026-630-010
ERIC H. HOLDER JR., Attorney ORDER AND
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 11, 2011—Seattle, Washington
Filed December 1, 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.
20597
20600 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.
ORDER
The opinion filed on June 21, 2011, 651 F.3d 969, is with-
drawn. A superseding opinion will be filed concurrently with
this order. Accordingly, the pending petition for rehear-
ing/petition for rehearing en banc (Docket No. 40) is
DENIED as moot, without prejudice to refiling a subsequent
petition for rehearing and/or petition for rehearing en banc
with respect to Section II only.
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
CARRILLO DE PALACIOS v. HOLDER 20601
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 being
“ordered removed under . . . any . . . provision of law, and . . .
enter[ed] or attempt[ed] to reenter the United States without
being admitted,” which renders her inadmissible under 8
U.S.C. § 1182(a)(9)(C)(i)(II). The BIA also correctly con-
cluded 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
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
20602 CARRILLO DE PALACIOS v. HOLDER
for adjustment 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
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,
CARRILLO DE PALACIOS v. HOLDER 20603
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
[2] 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
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.
2
In Garfias-Rodriguez v. Holder, 649 F.3d 942, 948 (9th Cir. 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 inad-
missible 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 abro-
gated 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 inadmissible under § 1182(a)(9)(C)(i)(II). We have further held
that the holdings of Briones and Torres-Garcia, and our decisions defer-
ring to those holdings, may be applied retroactively. Garfias-Rodriguez,
649 F.3d at 949; Morales-Izquierdo, 600 F.3d at 1088-90.
20604 CARRILLO DE PALACIOS v. HOLDER
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)(II). We need not address the
arguments regarding § 1182(a)(9)(C)(i)(I), and we express no
opinion regarding the BIA’s analysis of that provision.
[3] The statutory text is straightforward: an alien is inad-
missible if she “has been ordered removed under . . . any . . .
provision of law, and . . . enter[ed] or attempt[ed] to reenter
the United States without being admitted.” 8 U.S.C.
§ 1182(a)(9)(C)(i)(II). Thus, inadmissibility under this provi-
sion requires two elements: (1) an order of removal, and (2)
subsequent illegal entry or attempted reentry.
[4] As to the first requirement, the BIA found that Carrillo
de Palacios was “deported from the United States on Decem-
ber 20, 1984,” and was therefore “previously removed” for
purposes of § 1182(a)(9)(C)(i)(II).3 Ample evidence in the
3
It is undisputed that 8 U.S.C. § 1182(a)(9)(C)(i)(II) applies to orders of
removal that were issued before the April 1, 1997 effective date of the
statute. See Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076,
1079 (9th Cir. 2010) (finding alien inadmissible because of a September
14, 1994 order of removal). Moreover, federal immigration agencies have
long interpreted this provision as applying “to those aliens ordered
removed before or after April 1, 1997, and who enter or attempt to reenter
the United States unlawfully any time on or after April 1, 1997.” Memo-
randum by Paul W. Virtue, Acting Executive Assoc. Comm’r, Immigra-
tion and Naturalization Service, June 17, 1997, reprinted at 74 No. 25
Interpreter Releases 1033 (emphasis added).
CARRILLO DE PALACIOS v. HOLDER 20605
record supports this finding. Carrillo de Palacios conceded to
the BIA that she “was deported over twenty years ago” pursu-
ant to “an order of deportation in her name from 1984,” and
her deportation warrant states that “an order has been duly
made that the alien CARILLO de Palacios, Matilde [sic] . . .
is subject to deportation under . . . [INA § ] 241(a)(2).”
Carrillo de Palacios contends that she voluntarily departed
the country in early 1984 and should not have been ordered
deported in December 1984. However, her argument ignores
both the BIA’s factual findings and the abundant evidence in
the record that she was indisputably removed under an order
of deportation. See Ramirez-Juarez v. INS, 633 F.2d 174,
175-76 (9th Cir. 1980) (per curiam) (“[A]n alien cannot col-
laterally attack an earlier exclusion or deportation at a subse-
quent deportation hearing, in the absence of a gross
miscarriage of justice at the prior proceedings.”). Moreover,
“courts lack jurisdiction to review factual determinations
underlying adjustment-of-status decisions,” and it is therefore
too late for Carrillo de Palacios to dispute the BIA’s conclu-
sions. Morales-Izquierdo, 600 F.3d at 1084.
[5] As to the second requirement, the BIA properly deter-
mined that Carrillo de Palacios entered the United States
without being admitted. Substantial evidence supports the
conclusion that she last illegally entered in September 1997.
Moreover, in her briefs in this case, Carrillo de Palacios
acknowledged her September 1997 return to the United
States.
[6] In sum, because Carrillo de Palacios was ordered
removed and then entered the United States without permis-
sion, she is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II).
III. Exception to Inadmissibility under 8 U.S.C.
§ 1182(a)(9)(C)(ii)
Because Carrillo de Palacios is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II), she may only seek adjustment of status
20606 CARRILLO DE PALACIOS v. HOLDER
under § 1255(i) if she qualifies under the exception to inad-
missibility set forth in § 1182(a)(9)(C)(ii). Garfias-Rodriguez,
649 F.3d at 945; 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).
[7] 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.)
[8] 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
CARRILLO DE PALACIOS v. HOLDER 20607
United States more than ten years” before applying to the Sec-
retary. Gonzales, 508 F.3d at 1231.4 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.
[9] 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.
4
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)).
20608 CARRILLO DE PALACIOS v. HOLDER
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, 649 F.3d at 946.
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.
[10] 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).
CARRILLO DE PALACIOS v. HOLDER 20609
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.
[11] 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.5
CONCLUSION
[12] Carrillo de Palacios is inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II), 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.
5
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.