TORRES-GARCIA

Cite as 23 I&N Dec. 866 (BIA 2006) Interim Decision #3524

In Re Honorio TORRES-GARCIA, Respondent
File A93 421 569 - Dallas
Decided January 26, 2006
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) An alien who reenters the United States without admission after having previously
been removed is inadmissible under section 212(a)(9)(C)(i)(II) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i)(II) (2000), even if the alien obtained the
Attorney General’s permission to reapply for admission prior to reentering unlawfully.
(2) An alien is statutorily ineligible for a waiver of inadmissibility under the first sentence
of section 212(a)(9)(C)(ii) of the Act unless more than 10 years have elapsed since the
date of the alien’s last departure from the United States.

FOR RESPONDENT: Joshua Turin, Esquire, Dallas, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Andrea W. Rentie, Assistant
Chief Counsel

BEFORE: Board Panel: OSUNA, Acting Vice Chairman; FILPPU and PAULEY, Board
Members.

PAULEY, Board Member:

The respondent appeals from an Immigration Judge’s January 21, 2004,
decision finding him inadmissible to the United States under section
212(a)(9)(C)(i)(II) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(9)(C)(i)(II) (2000), and pretermitting his application for adjustment
of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000). The
appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 30-year-old native and citizen of Mexico who entered
the United States without inspection in 1987. In 1997 he married a United
States citizen, but in November 1998 he was removed from the United States
to Mexico by the former Immigration and Naturalization Service (“INS,” now

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the Department of Homeland Security (“DHS”)), pursuant to an in absentia
order of removal issued by an Immigration Judge.1
In December 1998, while in Mexico, the respondent filed an application
with the DHS requesting permission to reapply for admission after removal.
On a Form I-212 (Application for Permission to Reapply for Admission Into
the United States After Deportation or Removal), which appears to have been
completed by his wife, the respondent explained that he had United States
citizen family members and that he wished to pursue a visa petition that would
allow him to obtain lawful permanent resident status in the United States. In
February 2000, while the respondent was still in Mexico, the DHS approved
his request for permission to reapply for admission. Rather than seeking
admission, however, the respondent reentered the United States without being
admitted or paroled in May 2000.
In early 2001 the respondent’s wife filed a visa petition on his behalf with
the DHS. After this visa petition was approved in March 2002, the
respondent filed an application for adjustment of status pursuant to
section 245(i) of the Act, and he and his wife attended an adjustment of status
interview with a DHS officer in March 2003. When the DHS officer
conducting the interview discovered that the respondent had previously been
removed and had reentered the United States without being admitted or
paroled, he denied the respondent’s application for adjustment of status, took
the respondent into custody, and served him a copy of a Notice to Appear
(Form I-862), which charged him with being removable as an alien present in
the United States without having been admitted or paroled. See
section 212(a)(6)(A)(i) of the Act. In May 2003 the Notice to Appear was
filed in the Immigration Court in Dallas, Texas, initiating these removal
proceedings.
During proceedings before the Immigration Judge, the respondent conceded
that he was removable as charged and sought to renew his application for
adjustment of status. The Immigration Judge pretermitted the application,
however, concluding that the respondent was ineligible for adjustment of
status because his unlawful reentry in May 2000 had rendered him
inadmissible to the United States under section 212(a)(9)(C)(i)(II) of the Act.
The Immigration Judge further concluded that the respondent was not eligible
for any waiver of that ground of inadmissibility and that his prior request for

1
On March 1, 2003, the functions of the Immigration and Naturalization Service were
transferred to the Department of Homeland Security pursuant to Title IV of the Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2177 (“HSA”). See Matter of
D-J-, 23 I&N Dec. 572, 573 n.1 (A.G. 2003). To avoid possible confusion, the former INS
will be referred to in this decision as the DHS.

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permission to reapply for admission after removal, which had been approved
by the DHS in February 2000, was also not effective to waive his
inadmissibility. The respondent appealed the Immigration Judge’s decision.

II. ISSUE
This appeal presents the question whether the respondent, who reentered the
United States without admission after having previously been removed, is
inadmissible under section 212(a)(9)(C)(i)(II) of the Act where, prior to
reentering unlawfully, he had obtained the Attorney General’s permission to
reapply for admission after removal.

III. RELEVANT STATUTORY PROVISION
Among other things, this appeal requires us to explain the circumstances
under which an alien may become inadmissible to the United States under
section 212(a)(9)(C) of the Act.2 That section renders ineligible for admission
to the United States, with certain exceptions, any alien who enters or attempts
to enter the United States after specified previous immigration violations.
Section 212(a)(9)(C) provides, in pertinent part, as follows:
(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 235(b)(1), section 240, or any other
provision of law,
and who enters or attempts to reenter the United States without being admitted is
inadmissible.

2
Section 212(a)(9) of the Act was created by section 301(b) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110
Stat. 3009-546, 3009-576 (“IIRIRA”). It includes three subsections: subsection (C), which
is directly at issue in this case; subsection (A), discussed later at greater length, which
provides for the inadmissibility of any alien who has been removed, tying the inadmissibility
period to the alien’s status at the time of removal; and subsection (B), which provides for
the temporary inadmissibility of aliens who seek admission after having departed the United
States subsequent to a prior period of unlawful presence, and which is not at issue in this
case.

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(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 Attorney General has consented to the alien’s
reapplying for admission.

(Emphasis added.)

IV. DISCUSSION
The respondent wants to adjust his status under section 245(i) of the Act
from that of an alien present in the United States without having been
admitted or paroled to that of an alien lawfully admitted for permanent
residence. Section 245(i)(1) of the Act provides that “an alien physically
present in the United States . . . who . . . entered the United States without
inspection” and who is the beneficiary of an immigrant visa petition filed on
or before April 30, 2001, may apply to the Attorney General for adjustment
of status upon payment of $1,000.3 Upon receiving the alien’s application and
the required sum, the Attorney General is authorized to adjust the alien’s
status to that of a lawful permanent resident if, among other things, “the alien
is eligible to receive an immigrant visa and is admissible to the United States
for permanent residence.” Section 245(i)(2)(A) of the Act.
The approval notice issued by the DHS with respect to the respondent’s visa
petition reflects that the respondent’s “priority date” was April 20, 2001,
indicating that the visa petition was “filed” prior to the April 30, 2001,
deadline set forth at section 245(i)(1)(B)(i) of the Act. See 8 C.F.R.
§ 1245.1(g)(2) (2005) (providing that the priority date of an applicant seeking
the allotment of an immigrant visa number on the basis of an approved visa
petition is fixed by the date on which the visa petition was filed).
The Immigration Judge determined that the respondent was not “admissible
to the United States for permanent residence,” within the meaning of
section 245(i)(2)(A) of the Act, because he had unlawfully reentered the
United States after having previously been removed, an act that ostensibly
rendered him inadmissible under section 212(a)(9)(C)(i)(II) as an alien who
“has been ordered removed under . . . section 240 . . . and who enters . . . the
United States without being admitted.”

3
Pursuant to the Homeland Security Act, the reference to the Attorney General in
section 245(i) of the Act is now deemed to refer to the Secretary of Homeland Security as
well. See HSA, § 1517, 116 Stat. at 2311 (codified at 6 U.S.C. § 557 (Supp. II 2002)).

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We emphasize at the outset that the respondent does not dispute on appeal
that inadmissibility under section 212(a)(9)(C)(i)(II) would have the effect of
making him ineligible for adjustment of status under section 245(i). See
Mortera-Cruz v. Gonzales, 409 F.3d 246, 255-56 (5th Cir. 2005) (extending
administrative deference to a Board decision concluding that section 245(i)
adjustment was unavailable to aliens inadmissible under section
212(a)(9)(C)(i)), cert. denied, 126 S.Ct. 733 (2005).4 Instead, he argues more
narrowly that he is not, in fact, inadmissible under section 212(a)(9)(C)(i)(II)
of the Act because, by the time of his unlawful reentry in May 2000, the DHS
had already approved his earlier request for permission to reapply for
admission after removal. In essence, he maintains that the DHS’s approval of
his request for permission to reapply for admission had the effect of insulating
him against any allegation of inadmissibility that might subsequently arise in
connection with his unlawful reentry. In support of this argument the
respondent relies on the rationale of Perez-Gonzalez v. Ashcroft, 379 F.3d 783
(9th Cir. 2004), motion to reconsider denied, 403 F.3d 1116 (9th Cir. 2005),
in which the United States Court of Appeals for the Ninth Circuit held that an
alien who was inadmissible under section 212(a)(9)(C)(i) of the Act could

4
In other cases, aliens have argued that inadmissibility under section 212(a)(9)(C) is no
impediment to adjustment of status under section 245(i), which by its terms makes relief
available to aliens who “entered the United States without inspection.” The official position
of the DHS is that section 245(i) adjustment is available to aliens who are inadmissible
under section 212(a)(6)(A)(i) of the Act on account of their presence in the United States
without having been admitted or paroled, but it is unavailable to recidivist immigration
violators described by section 212(a)(9)(C). See Memorandum from Louis D. Crocetti, Jr.,
Associate Commissioner, Office of Examinations, to INS officials (May 1, 1997), reprinted
in 2 Bender’s Immigr. Bull. 450, 452 (June 1, 1997). Yet the issue has led to some
disagreement among the United States Courts of Appeals. Compare Mortera-Cruz v.
Gonzales, supra (affirming a Board decision that espoused the DHS position in a case
involving an alien inadmissible under section 212(a)(9)(C)(i)(I)), and Berrum-Garcia v.
Comfort, 390 F.3d 1158, 1166-67 (10th Cir. 2004) (holding that an alien inadmissible under
section 212(a)(9)(C)(i)(II) for having illegally reentered the United States after being
removed was ineligible for any waiver of inadmissibility and could not adjust status under
section 245(i)), with Padilla-Caldera v. Gonzales, 426 F.3d 1294, 1300-01 (10th Cir. 2005)
(holding that an alien inadmissible under section 212(a)(9)(C)(i)(I) for having illegally
reentered the United States after a prior period of unlawful presence was not barred from
applying for adjustment of status under section 245(i), but distinguishing Berrum-Garcia
v. Comfort, supra, as addressing a different issue, i.e., whether an alien inadmissible under
section 212(a)(9)(C)(i)(II) for having illegally reentered after execution of a prior order of
removal can adjust status under section 245(i)). While we note the issue and acknowledge
its potential importance, it has not been raised or briefed by the parties in connection with
the present appeal, and we therefore have no occasion to address it.

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apply for adjustment of status under section 245(i) in conjunction with a
request that the Attorney General retroactively consent to his reapplying for
admission. For the following reasons, we reject the respondent’s arguments.

A. Inadmissibility Under Section 212(a)(9)(C) of the Act

The respondent was removed from the United States to Mexico in
November 1998 pursuant to an in absentia order of removal issued by an
Immigration Judge, and we have received no indication that the respondent
has requested, much less secured, rescission of that order.5 In May 2000 the
respondent reentered the United States without being admitted or paroled.
Because the respondent reentered the United States without admission after
having previously been removed, he is inadmissible pursuant to the plain
language of section 212(a)(9)(C)(i)(II) of the Act.

B. Effect of the Grant of Permission To Reapply for Admission on
Inadmissibility Under Section 212(a)(9)(C)

The respondent argues that because the DHS had granted him permission to
reapply for admission after removal in February 2000, his subsequent
unlawful reentry in May 2000 did not render him inadmissible under section
212(a)(9)(C)(i)(II) of the Act. The respondent’s assertion in this regard is
erroneous and appears to be grounded on a misconception regarding the effect
of a grant of permission to reapply for admission.
Once the respondent was removed in November 1998, he became
inadmissible to the United States under section 212(a)(9)(A)(ii) of the Act,
which provides in pertinent part:
Any alien . . . who—
(I) has been ordered removed under section 240 or any other provision of law . . .
and who seeks admission within 10 years of the date of such alien’s departure or
removal (or within 20 years of such date in the case of a second or subsequent
removal or at any time in the case of an alien convicted of an aggravated felony) is
inadmissible.

5
In any event, applicable regulations provide that “[a] motion to reopen . . . shall not be
made [in Immigration Court] by or on behalf of a person who is the subject of removal . . .
proceedings subsequent to his or her departure from the United States.” 8 C.F.R.
§ 1003.23(b)(1) (2005); cf. Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003).

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After the relevant inadmissibility period has elapsed, an alien’s prior
removal no longer stands as a bar to reapplication for admission. Moreover,
the Attorney General may permit a previously removed alien to reapply for
admission at any point during the relevant inadmissibility period if that request
for permission is made prior to the alien’s attempt to return to the United
States. Section 212(a)(9)(A)(iii) of the Act.6 It was this type of permission
that the respondent received when the DHS consented to his reapplying for
admission in February 2000.
Contrary to the respondent’s apparent understanding, the fact that he was
given permission to reapply for admission as of February 2000 did not mean
that he was authorized to be admitted in fact, and it certainly did not authorize
him to reenter without admission. To be admitted to the United States, an
alien must possess a valid visa, reentry permit, border crossing identification
card, or other valid entry document. See section 212(a)(7)(A) of the Act. An
approved request for permission to reapply for admission is not a visa or entry
document; it is merely evidence of the Government’s judgment that
section 212(a)(9)(A)(ii) of the Act need no longer be an obstacle to the alien’s
acquisition of such a document. Thus, after the respondent received the
Attorney General’s permission to reapply for admission, he was obliged to
follow lawful procedures governing the acquisition of an immigrant visa,
presumably through his wife. Upon issuance of such a visa, the respondent
would have been admissible as an immigrant and, upon admission, would
thereafter have been a lawful permanent resident of the United States. Rather
than obtaining such a visa and seeking lawful admission, however, the
respondent surreptitiously crossed the border in May 2000, making him
inadmissible under section 212(a)(9)(C)(i)(II) of the Act.7

6
Section 212(a)(9)(A)(iii) provides that the bars in sections 212(a)(9)(A)(i) and (ii) to
seeking readmission for specified periods of time after departure or removal “shall not apply
to an alien seeking admission within [such] a period if, prior to the date of the alien’s
reembarkation at a place outside the United States or attempt to be admitted from foreign
contiguous territory, the Attorney General has consented to the alien’s reapplying for
admission.” Pursuant to the HSA, the Attorney General’s statutory authority to grant a
request for permission to reapply for admission is now vested in the DHS.

7
The respondent maintains that his unlawful reentry in May 2000 was justified because his
wife was seriously ill and both she and their children needed his help. We sympathize with
his predicament, but there is nothing in the language of section 212(a)(9)(C)(i) of the Act
that would except the respondent from inadmissibility based on the nature of his motives for
unlawfully reentering the United States. Furthermore, given his family circumstances and
the fact that he had been granted permission to reapply for admission, it is possible that the
respondent could have been lawfully admitted into the United States temporarily as a

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Section 212(a)(9)(C)(i) differs significantly from section 212(a)(9)(A)(ii) in
that it incorporates no temporal limitations on inadmissibility; an individual
who has reentered or attempted to reenter the United States after removal or
prior unlawful presence is permanently inadmissible. Also, while an alien
inadmissible under section 212(a)(9)(A) may request permission to reapply for
admission at any time during the relevant inadmissibility period, an alien
inadmissible under section 212(a)(9)(C)(i) may only request permission to
reapply for admission if the alien is “seeking admission more than 10 years
after the date of the alien’s last departure from the United States.”
Section 212(a)(9)(C)(ii) of the Act. A request for a waiver of the section
212(a)(9)(C)(i)(II) ground of inadmissibility that is made less than 10 years
after the alien’s last departure from the United States simply cannot be
granted. Because the respondent’s request for permission to reapply for
admission was made less than 10 years after he departed the United States in
November 1998, it could have no effect on his inadmissibility under
section 212(a)(9)(C)(i)(II).

C. Permission To Reapply for Admission Under 8 C.F.R. § 212.2

In Perez-Gonzalez v. Ashcroft, supra, at 793, the Ninth Circuit concluded
that the DHS regulation set forth at 8 C.F.R. § 212.2 (2004) permitted an alien
who was present in the United States but inadmissible under section
212(a)(9)(C)(i) of the Act to seek retroactive permission to reapply for
admission in conjunction with an application for adjustment of status under
section 245(i). According to the respondent, if the alien in Perez-Gonzalez
could qualify for section 245(i) adjustment on the basis of a retroactive waiver
of the section 212(a)(9)(C)(i) ground of inadmissibility, it must surely follow
that he–who received a waiver prospectively–would likewise be eligible to
adjust. With all due respect, we believe the Ninth Circuit’s analysis regarding
the availability of a retroactive waiver of the ground of inadmissibility set
forth at section 212(a)(9)(C)(i) contradicts the language and purpose of the
Act and appears to have proceeded from an understandable, but ultimately
incorrect, assumption regarding the applicability of 8 C.F.R. § 212.2.
The sole DHS regulation addressing consent to reapply for admission after
removal is 8 C.F.R. § 212.2. Among other things, the regulation sets forth the
general rule that a previously removed alien is inadmissible for either 5 or 20
years (depending on whether the alien was convicted of an aggravated felony)

nonimmigrant pursuant to section 212(d)(3)(B) of the Act or granted parole under
section 212(d)(5) of the Act. See also 8 C.F.R. §§ 212.4(b), 212.5 (2000). There is no
indication in the record that he sought such lawful admission or parole.

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and specifies that an alien seeking admission prior to the completion of the
requisite 5- or 20-year absence must first obtain permission to reapply for
admission. 8 C.F.R. § 212.2(a). The regulation also provides that an alien
who is present in the United States may seek permission to reapply for
admission retroactively, in conjunction with an application for adjustment of
status. 8 C.F.R. §§ 212.2(e), (i)(2).
As the language, structure, and regulatory history of 8 C.F.R. § 212.2 make
clear, the regulation was not promulgated to implement current section
212(a)(9) of the Act. Instead, it was published in response to significant
legislative changes brought about by the Immigration Act of 1990, Pub. L.
No. 101-649, 104 Stat. 4978 (“IMMACT”). See Consent to Reapply for
Admission After Deportation, Removal or Departure at Government Expense,
56 Fed. Reg. 23,212 (May 21, 1991). Specifically, section 601(a) of the
IMMACT, 104 Stat. at 5067, 5073, had repealed former section 212(a)(17)
of the Act, 8 U.S.C. § 1182(a)(17) (1988), which had been in effect since
1952, and replaced it in substantially modified form with new sections
212(a)(6)(A) and (B), 8 U.S.C. §§ 1182(a)(6)(A) and (B) (Supp. II 1990).
During its relatively brief existence, former section 212(a)(6)(B) of the Act
provided, in pertinent part, as follows:
Any alien who—
(i) has been arrested and deported . . .
and who seeks admission within 5 years of the date of such deportation or removal (or
within 20 years in the case of an alien convicted of an aggravated felony) is
excludable, unless before the date of the alien’s embarkation or reembarkation at a
place outside the United States or attempt to be admitted from foreign contiguous
territory the Attorney General has consented to the alien’s applying or reapplying for
admission.

The regulation at 8 C.F.R. § 212.2(a), with its references to temporary 5- and
20-year periods of inadmissibility for previously removed aliens, bears an
obvious relationship to former section 212(a)(6)(B) of the Act, but it does not
correspond to any provision of current section 212(a)(9). Specifically, while
former section 212(a)(6)(B) imposed a general 5-year excludability period on
deported aliens, with a 20-year period for aliens convicted of an aggravated
felony, current section 212(a)(9)(A)(ii)(II) imposes a general 10-year
inadmissibility period and renders aliens convicted of aggravated felonies
inadmissible permanently. This significant statutory change is nowhere
reflected in the language of 8 C.F.R. § 212.2.
Furthermore, while 8 C.F.R. §§ 212.2(e) and (i)(2) authorize aliens who are
unlawfully present in the United States to seek permission to reapply for
admission retroactively in conjunction with an application for adjustment of
status, the very concept of retroactive permission to reapply for admission,

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i.e., permission requested after unlawful reentry, contradicts the clear language
of section 212(a)(9)(C), which in its own right makes unlawful reentry after
removal a ground of inadmissibility that can only be waived after the passage
of at least 10 years. See Berrum-Garcia v. Comfort, supra, at 1167 (holding
that aliens subject to section 212(a)(9)(C) are ineligible for a waiver under
8 C.F.R. § 212.2 because, “as a result of having illegally reentered after
previously being formally removed, [they] are by default inadmissible for life
[and their] disability may be waived only after the alien has been outside the
United States for ten years”).8 Thus, we conclude that 8 C.F.R. § 212.2,
which implements statutory provisions that were repealed by the IIRIRA,
cannot reasonably be construed as implementing the provision for consent to
reapply for admission at section 212(a)(9)(C)(ii).
Even were we to assume that 8 C.F.R. § 212.2 did govern implementation
of section 212(a)(9)(C)(ii), however, we could not interpret that regulation in
a manner that is inconsistent with the plain language of the Act.
Section 212(a)(9)(C)(ii), which is written in unambiguous language, clearly
specifies the conditions under which waivers of inadmissibility may be
granted. It extends no discretion to the Attorney General or the Secretary of
Homeland Security to augment those conditions or to create other less
restrictive waivers by regulation. As noted previously, a section
212(a)(9)(C)(ii) waiver is not available to all aliens inadmissible under
section 212(a)(9)(C)(i); rather, it is available only to that subset of
inadmissible aliens who are “seeking admission more than 10 years after the
date of the alien’s last departure from the United States.” Congress has given
the Attorney General no authority to grant an alien a waiver of the
section 212(a)(9)(C)(i) ground of inadmissibility, either retroactively or
prospectively, prior to the end of this 10-year period. Perez-Gonzalez v.
Ashcroft, 403 F.3d at 1117-20 (9th Cir. 2005) (Gould, J., dissenting).

8
As previously noted, section 212(a)(9) of the Act was created as part of the
comprehensive reorganization of the immigration laws effectuated by the IIRIRA in 1996.
Although 8 C.F.R. § 212.2 has been amended twice since 1996, both of these changes were
purely technical. See Adjustment of Status for Certain Nationals of Nicaragua and Cuba,
65 Fed. Reg. 15,846, 15,854 (Mar. 24, 2000); Adjustment of Status for Certain Nationals
of Haiti, 64 Fed. Reg. 25,756, 25,766 (May 12, 1999). In light of the fact that the DHS has
never amended 8 C.F.R. § 212.2 to implement any provision of the IIRIRA, it is
understandable that the Perez-Gonzalez court might assume, albeit incorrectly, that the
regulation remained effective as to aliens in removal proceedings. But see Lattab v.
Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004) (remarking that “we find it difficult to accept the
[Perez-Gonzalez court’s] heavy reliance on regulations that antedate IIRIRA” in interpreting
the scope of a statutory provision that was created by the IIRIRA).

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In Perez-Gonzalez, the Ninth Circuit concluded that an alien who was
inadmissible under section 212(a)(9)(C)(i) of the Act could apply for a waiver
under 8 C.F.R. § 212.2 even though the alien’s last departure from the United
States occurred in 1999, considerably less than 10 years prior to the date of his
request for consent to reapply for admission. In coming to this conclusion,
the court determined that the statutory 10-year limitation “would not cover the
class of aliens under 8 C.F.R. § 212.2, who have been previously removed and
are currently in this country prior to seeking permission to reapply.”
Perez-Gonzalez v. Ashcroft, 379 F.3d at 794 n.10. We respectfully disagree.
As discussed above, 8 C.F.R. § 212.2 does not purport to implement
section 212(a)(9)(C)(ii) of the Act. Even if the regulation were applicable,
however, we could not interpret it in a manner that would allow an alien to
circumvent the statutory 10-year limitation on section 212(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 section
212(a)(9)(C)(i) applicable in the first place. In effect, Perez-Gonzalez allows
an alien to obtain a section 212(a)(9)(C)(ii) waiver nunc pro tunc even though
such a waiver would have been unavailable to him had he sought it
prospectively, thereby placing him in a better position by asking forgiveness
than he would have been in had he asked permission. Such an interpretation
contradicts the clear language of section 212(a)(9)(C)(ii) and the legislative
policy underlying section 212(a)(9)(C) generally. We find that the more
reasonable interpretation of the statutory framework discussed above is that
an alien may not obtain a waiver of the section 212(a)(9)(C)(i) ground of
inadmissibility, retroactively or prospectively, without regard to the 10-year
limitation set forth at section 212(a)(9)(C)(ii).

V. CONCLUSION

The respondent reentered the United States without admission after having
previously been removed. Accordingly, he is inadmissible to the United
States under section 212(a)(9)(C)(i)(II) of the Act. Furthermore, because the
respondent’s last departure from the United States occurred in November
1998, less than 10 years ago, he is not eligible for a waiver of inadmissibility
under section 212(a)(9)(C)(ii) of the Act. Moreover, although the respondent
obtained permission to reapply for admission after removal in February 2000,
such permission merely authorized him to seek admission without regard to
the otherwise-applicable ground of inadmissibility set forth at section
212(a)(9)(A)(ii) of the Act. It did not authorize him to be admitted in fact or
to enter without admission, and it does not insulate him from inadmissibility
under section 212(a)(9)(C)(i). Because we agree with the Immigration Judge
that the respondent is inadmissible to the United States under section

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212(a)(9)(C)(i) of the Act and is ineligible for a section 212(a)(9)(C)(ii)
waiver, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart from
the United States, without expense to the Government, within 60 days from
the date of this order or any extension beyond that time as may be granted by
the DHS. See section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2000);
8 C.F.R. §§ 1240.26(c), (f) (2005). In the event the respondent fails to so
depart, the respondent shall be removed as provided in the Immigration
Judge’s order.
NOTICE: If the respondent fails to depart the United States within the
time period specified, or any extensions granted by the DHS, the respondent
shall be subject to a civil penalty of not less than $1,000 and not more than
$5,000, and shall be ineligible for a period of 10 years for any further relief
under section 240B and sections 240A, 245, 248, and 249 of the Act, 8 U.S.C.
§ 1229c, 1255, 1258, and 1259 (2000). See section 240B(d) of the Act.

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