United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 9, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60234
JESUS MORTERA-CRUZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before GARWOOD, JONES and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant Jesus Mortera-Cruz (Mortera) appeals the decision of
the Board of Immigration Appeals (BIA) dismissing his petition for
adjustment of status under 8 U.S.C. § 1255(i)(1)(A)(i) on the
ground that he is inadmissible to the United States under 8 U.S.C.
§ 1182(a)(9)(C)(i)(I). We affirm.
Facts and Proceedings Below
Mortera is a native and citizen of Mexico. He entered the
United States illegally for the first time in November of 1996.
On March 28, 2001, he married Margarita Mortera, who was then a
lawful permanent resident and has since become a naturalized
citizen. Shortly after their marriage, Mrs. Mortera filed a
petition with the Immigration and Naturalization Service (INS)
for an immigrant visa for her husband. This petition was
received by the INS on April 28, 2001.
At some undetermined point after November 1996, Mortera left
the United States and illegally reentered on June 10, 2001.
Nearly a year later, on April 16, 2002, Mortera was convicted, on
his guilty plea, by the United States District Court for the
Northern District of Texas, of violating 8 U.S.C. § 1325(a) by
illegally entering the United States without inspection on June
10, 2001. On May 10, 2002, the Immigration and Customs
Enforcement (ICE)1 agency of the Department of Homeland Security
(DHS) served Mortera with a Notice to Appear (NTA), alleging that
he was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an
alien present in the United States without having been admitted
1
On March 1, 2003, the INS ceased to exist. Its duties were
assigned to two agencies within the newly created Department of
Homeland Security (DHS): Immigration and Customs Enforcement
(ICE) and Citizenship and Immigration Services. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471(a), 116 Stat.
2135, 2205 (Nov. 25, 2002).
2
or paroled.2
In response to the NTA, Mortera appeared before an
immigration judge (IJ) on September 25, 2002. Mortera maintained
that the NTA was in error insofar as it alleged that he illegally
entered the United States on June 10, 2001. Through counsel, he
contended that his first and only illegal entry occurred in late
1996 and his plea to the contrary before the district court was
inadvertent. With the consent of the DHS, the IJ amended the NTA
by interlineation to reflect Mortera’s representation that the
operative date should be in 1996, not 2001. The IJ then found
Mortera subject to removal in light of his admission that he had
in fact entered illegally in 1996. Mortera then requested
2
Section 1182(a)(6)(A)(i) provides:
Ҥ 1182. Inadissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter,
aliens who are inadmissible under the following
paragraphs are ineligible to receive visas and
ineligible to be admitted to the United States:
. . .
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In General
An alien present in the United
States without being admitted or
paroled, or who arrives in the
United States at any time or place
other than as designated by the
Attorney General, is inadmissible.”
3
permission to adjust his status under 8 U.S.C. § 1255(i)(1)(A)(i)
to that of a lawful permanent resident on the basis of his wife’s
pending visa application for him. The IJ granted Mortera a
recess to pursue that option.
Mortera next appeared before the IJ on August 29, 2003, this
time with a valid spousal visa, which ICE had approved on March
27, 2003. The DHS contended that Mortera was not eligible to
adjust his status under section 1255(i)(1)(A)(i) because he was
inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). Section
1182(a)(9)(C)(i)(I) states that aliens are inadmissible if they
have more than one year of unlawful presence in the United States
and thereafter illegally enter or reenter the United States
without being admitted.3 Mortera, the DHS argued, fell under
3
Section 1182(a)(9)(C) provides:
Ҥ 1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter [8
U.S.C. §§ 1101-1537], aliens who are inadmissible under
the following paragraphs are ineligible to receive
visas and ineligible to be admitted to the United
States:
. . .
(C) Aliens unlawfully present after previous
immigration violations
(i) In general
Any alien who –
4
section 1182(a)(9)(C)(i)(I) because he entered illegally in
November of 1996, and then reentered illegally on June 10, 2001,
after he had accumulated more than one year of illegal presence.
The DHS took the position before the IJ that an alien subject to
section 1182(a)(9)(C)(i)(I) was ineligible to adjust his status
under section 1255(i)(1)(A)(i) to that of a lawful permanent
resident.
Mortera responded once again stating that his 2002
conviction did not accurately reflect his conduct because he only
once entered the United States illegally and that entry occurred
(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 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
Attorney General has consented to
the alien’s reapplying for
admission.”
5
in 1996,so he was not subject to section 1182(a)(9)(C)(i)(I)
because he did not enter the United States without being admitted
after he had been unlawfully present in the United States for
more than one year. The IJ, now faced with an objection from the
DHS, was no longer willing to credit Mortera’s account of the
facts, and ruled that Mortera was collaterally estopped from
denying the truth of the material allegations underlying his
conviction. The IJ then ruled in favor of the DHS, concluding
that Mortera was inadmissible under section 1182(a)(9)(C)(i)(I)
and, as a consequence, was ineligible to adjust his status under
section 1255(i) to that of a lawful permanent resident. The IJ
also denied Mortera the opportunity to remove himself
voluntarily, deciding he was untrustworthy because he had
fraudulently used someone else’s green card to obtain work.
Mortera then appealed to the BIA, which, on March 5, 2004,
affirmed the decision of the IJ and dismissed the appeal. In
affirming the IJ, the BIA drew two important conclusions of law:
(1) 8 U.S.C. § 1255(i)(1)(A)(i), which allows certain physically
present aliens “who entered the United States without inspection”
to adjust their status to that of a lawful permanent resident,
applies only to aliens whose sole statutory ground of
inadmissibility is established merely by their having made a
single entry without inspection (e.g., those who are rendered
inadmissible only by § 1182(a)(6)(A)(i), see note 2 supra); and
6
(2) the “[e]xcept as otherwise provided” clause of 8 U.S.C. §
1182(a) does not waive the inadmissibility created by section
1182(a)(9)(C)(i)(I) (see note 3, supra) and thereby permit such
an inadmissible alien to adjust his or her status under section
1255(i)(1)(A)(i). It is from this disposition that Mortera now
appeals.4
Standard of Review
The BIA’s conclusions of law are reviewed de novo, “although
with the usual deference to the [BIA’s] interpretation of
ambiguous portions of the Act in accordance with Chevron U.S.A.
Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).”
4
Before the BIA Mortera also argued that the IJ had erred
in finding that Mortera had entered the United States without
being admitted in June 2001 or at any time other than his initial
entry into the United States in November 1996, and that, because
Mortera’s only entry into the United States was his entry
(without inspection) in November 1996, he did not enter the
United States without admission after having been unlawfully
present therein for more than one year and accordingly he was not
within the terms of § 1182(a)(9)(C)(i)(I). This contention was
rejected by the BIA which found that the IJ correctly determined
that Mortera had entered without admission in November 1996, and
after remaining unlawfully present in the United States for more
than one year, had reentered without admission in June 2001. In
his appeal to this court, Mortera does not challenge this
determination of the BIA, and we accordingly accept it.
Mortera does not fall within the exception to §
1182(a)(9)(C)(i) provided for in § 1182(a)(9)(C)(ii) respecting
an alien who has been outside the United States more than 10
years since his or her last departure and has, prior to
attempting to be readmitted from a foreign contiguous territory,
received the Attorney General’s consent to reapply for admission
(see note 3 supra). Nor has Mortera ever contended otherwise.
7
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). To
warrant deference, the BIA’s interpretation of ambiguities in the
law must be reasonable. Lopez-Gomez v. Ashcroft, 263 F.3d 442,
444 (5th Cir. 2001). In applying this standard, we are mindful
that the Attorney General’s construction of immigration law is
entitled to considerable respect. Gonzalez v. Reno, 212 F.3d
1338, 1349 n. 12 (11th Cir.) (“The authority of the executive
branch in immigration matters stems from the primacy of the
President and other executive officials (such as the INS) in
matters touching upon foreign affairs. Respect for the authority
of the executive branch in foreign affairs is a well-established
theme in our law.”) (citing INS v. Aguirre-Aguirre, 119 S. Ct.
1439, 1445 (1999) and United States v. Curtiss-Wright Export
Corp., 57 S. Ct. 216, 221 (1936)), reh’g denied, 215 F.3d 1243,
cert. denied, 120 S. Ct. 2737 (2000).
Discussion
I.
Mortera wants to adjust his status under 8 U.S.C. §
1255(i)(1)(A)(i) from that of an illegal alien to that of a
lawful permanent resident. Section 1255(i), titled “Adjustment
of status of certain aliens physically present in United States,”
provides in relevant part:
“(1) Notwithstanding the provisions of subsections (a)
and (c) of this section, an alien physically present in
the United States –
8
(A) who –
(i) entered the United States without
inspection; or
(ii) is within one of the classes
enumerated in subsection (c) of this section; and
(B) who is the beneficiary [of a spousal visa
issued under 8 U.S.C. § 1153(d)]
may apply to the Attorney General for the adjustment of
his or her status to that of an alien lawfully admitted
for permanent residence.”5
The Attorney General may then grant the application if, inter
alia, “the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence[.]” 8
5
8 U.S.C. § 1255(a) provides:
Ҥ 1255. Adjustment of status of nonimmigrant to that
of person admitted for permanent residence
(a) Status as person admitted for permanent residence
on
application and eligibility for immigrant visa
The status of an alien who was inspected
and admitted or paroled into the United
States may be adjusted by the Attorney
General, in his discretion and under such
regulations as he may prescribe, to that of
an alien lawfully admitted for permanent
residence if (1) the alien makes an
application for such adjustment, (2) the
alien is eligible to receive an immigrant
visa and is admissible to the United States
for permanent residence, and (3) an immigrant
visa is immediately available to him at the
time his application is filed.”
8 U.S.C. § 1255(c) (entitled “Alien crewmen, aliens
continuing or accepting unauthorized employment, and aliens
admitted in transit without visa”) provides that “Subsection (a)
of this section shall not be applicable to (1) an alien crewman;
. . . [listing seven other sets of aliens within the general
categories stated in subsection (c)’s title].”
9
U.S.C. § 1255(i)(2)(A) (emphasis added).
The Government does not dispute that Mortera is physically
present in the United States or that he is the beneficiary of a
valid spousal visa. The Government maintains, however, that the
Attorney General cannot lawfully adjust Mortera’s status because,
as the BIA determined, section 1182(a)(9)(C)(i)(I) renders him
inadmissible to the United States.
The BIA concluded, as the Government now argues, that
Mortera is indeed inadmissible under section 1182(a)(9)(C)(i)(I).
Section 1182(a)(9)(C), titled “Aliens unlawfully present after
previous immigration violations,” states that any alien who “has
been unlawfully present in the United States for an aggregate
period of more than 1 year, . . . and who enters or attempts to
reenter the United States without being admitted is
inadmissible.” 8 U.S.C. § 1182(a)(9)(C)(i)(I) (emphasis added)
(see note 3 above). The Government contends that the BIA, in
ruling Mortera inadmissible, was simply applying the law in a
manner consistent with its plain language because Mortera had
accumulated more than one year of unlawful presence and he
thereafter committed an illegal reentry on June 10, 2001.
Mortera does not contend that section 1182(a)(C)(i)(I) does
not apply to him – he in effect concedes that it does – but
rather argues that the “except as otherwise provided” prefatory
language in 8 U.S.C. § 1182(a) (see note 3 above) implicitly
10
waives this ground of inadmissibility for purposes of rendering
him eligible for an adjustment of status under section
1255(i)(1)(A)(i). Section 1182(a) states at the outset that
“[e]xcept as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to
receive visas and ineligible to be admitted to the United
States.” (emphasis added). This “except as otherwise provided”
language, Montera contends, was inserted by Congress to instruct
courts that conflicts between section 1182(a) and any other
provision of the Immigration and Nationality Act (INA), 8 § 1101-
1537, should be resolved in favor of the other provision. See,
e.g., BLACK’S LAW DICTIONARY 1344 (7th ed. 1999) (defining a savings
clause as a “statutory provision exempting from coverage
something that would otherwise be included.”). Mortera contends
that just such a conflict exists in this case because section
1255(i)(1)(A)(i) provides for the adjustment of status by a
physically present illegal alien like himself who “entered the
United States without inspection” whereas section
1182(a)(9)(C)(i) defines him as inadmissible and therefore
disqualifies him from adjusting his status. He argues that in
this context the savings clause acts as a waiver of his
inadmissibility under section 1182(a)(9)(C)(i), thereby giving
effect to the otherwise conflicting provision of section
1255(i)(1)(A)(i).
11
II
The general thrust of Montera’s argument has some force, as
applied to the ground of inadmissibility specified in 8 U.S.C. §
1182(a)(6)(A)(i) (entry without inspection; see note 2, supra),
as the Government has recognized. If being inadmissible by
virtue of section 1182(a)(6)(A)(i) – entry without inspection –
of itself precluded an alien from applying for adjustment of
status under section 1255(i)(1)(A)(i) – allowing such application
by aliens who “entered the United States without inspection” –
then section 1255(i)(1)(A)(i) would be a wholly inoperative
nullity. In an effort to avoid treating section 1255(i)(1)(A)(i)
as a nullity, the INS implemented a policy under which an alien’s
inadmissibility under section 1182(a)(6)(A)(i) would not of
itself render the alien ineligible to apply for adjustment of
status under section 1255(i)(1)(A)(i). The Ninth Circuit
recently summarized the history and rationale of this policy:
“The INS itself has recognized the contradiction
created by the statutory terms in [8 U.S.C. §§
1182(a)(6)(A) and 1255(i)]. In a legal opinion issued
by the INS's Office of General Counsel on February 19,
1997, the agency found that [section 1182(a)(6)(A)] did
not create a statutory bar to adjustment of status,
stating that,
Based on our review of the relevant
legislative history of section [1255(i)], it
is our opinion that Congress's goals in
enacting section [1255(i)] of the Act would
not be achieved were the Service to deem
entrants without inspection inadmissible when
they otherwise qualify for adjustment of
status under section [1255(i)] of the Act.
Gen. Couns. Mem. (Feb. 19, 1997), "Request for Legal
12
Opinion: The Impact of the 1996 Act on Section 245(i)
of the Act," quoted in 74 No. 11 Interpreter Releases
499, 501, INS General Counsel Issues Important Opinion
on EWI Eligibility for Adjustment, March 24, 1997. The
legal opinion reached this result by focusing on the
"savings clause" to [section 1182(a)], which precedes
the list of classes of inadmissible aliens by stating
that the following classes are inadmissible "[e]xcept
as otherwise provided in this chapter." [section
1182(a)] (emphasis added). This INS legal opinion
suggests that [section 1182(a)(6)(A)] does not bar
illegal entrants from receiving adjustment of status as
a matter of law.
The INS confirmed the applicability of this
interpretation in a guidance memorandum issued to all
field directors and officers by the INS Associate
Commissioner. See Memorandum by Louis D. Crocetti,
Jr., INS Assoc. Comm'r (May 1, 1997), reprinted in 2
Bender's Immigration Bulletin 450, 452 (June 1, 1997)
("this new ground of inadmissibility[§ 212(a)(6)(A) ]
does not disqualify aliens present in the United States
without admission or parole from adjustment of status
under section 245(i) of the Act"); see also Immigration
Law and Procedure, Vol. 4, § 51.01[2][b], 51-15 n. 41
[section 1182(a)(6)(A)] "is trumped by a [section
245(i)] filing where it is permissible").
Thus, [section 1182(a)(6)(A)] is not a ground of
inadmissibility that would categorically bar
[Petitioner]'s application for adjustment of status.”
Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 791 (9th Cir. 2004);
see also 74 NO. 11 Interpreter Releases 499 (March 24, 1997) & 74
NO. 25 Interpreter Releases 1033 (July 7, 1997) (explaining the
legislative purpose and histories of section 1182's various
subsections).
The BIA essentially took this position in denying adjustment
of status to Mortera, stating that section 1255(i)(1)(A)(i) “was
meant to provide a one-time waiver for aliens who entered without
inspection [i.e. aliens who are inadmissible under section
13
1182(a)(6)(A)(i)], not for aliens with multiple illegal entries
as described under section 212 [1182](a)(9)(C)(i)(I) of the
Act.”6
The precise reach of section 1255(i)(1)(A)(i) is an implicit
statutory ambiguity the executive branch is authorized to fill.
When Congress has left an implicit ambiguity such as this one,
the question before us is simply “whether the [decision of the
BIA] is based on a permissible construction of the statute.”
Chevron, 104 S. Ct. at 2782. In answering this question, we
consider only whether the decision is arbitrary, capricious, or
manifestly contrary to the Immigration and Nationality Act. Id.
We may not substitute our own preference for a reasonable
alternative formulated by the BIA. Id; Nat’l R.R. Passenger
Corp. v. Boston & Me. Corp., 112 S. Ct. 1394, 1401 (1992)
(“Judicial deference to reasonable interpretations by an agency
of a statute that it administers is a dominant, well-settled
principle of federal law.”) (citations omitted). The specific
Chevron issue in this case is whether the BIA was acting
arbitrarily when it refused to apply section 1255(i)(1)(A)(i) to
6
While the BIA refers to “multiple” illegal entries, that
was the context of the case before it. As the BIA recognized, §
1182(a)(9)(C)(i) “also requires” that there be an entry or
reentry after “an unlawful presence in the United States for more
than 1 year.” The more than one year unlawful presence
requirement does not itself require an illegal entry, as it can
arise, for example, by overstaying a visa. Here, however, it
arose by presence following the initial illegal entry.
14
Mortera’s inadmissibility under section 1182(a)(9)(C)(i)(I) in
the same way it would have applied section 1255(i)(1)(A)(i) to
him if he were inadmissible only by reason of section
1182(a)(6)(A)(i).
To answer this question, it is useful to review the history
of these three provisions. Section 1255(i) was enacted in 1994.
Pub. L. 103-317, § 506(b), Oct. 1, 1994. Under the version of
section 1182 then effective, an alien who was physically present
in the United States pursuant to an entry without inspection
could adjust his or her status under section 1255(i)(1)(A)(i) to
that of a lawful permanent resident because section 1182 did not
define such an alien as being inadmissible.7 See 8 U.S.C. § 1182
prior to April 1, 1997 when Pub. L. 104-208, § 301(c)(1) became
effective; 74 NO. 11 Interpreter Releases 499 (March 24, 1997),
Appendix II at 3. This changed on April 1, 1997 when the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996 took effect and amended 8 U.S.C. § 1182(a)(6)(A)(i) into its
present form, which does define aliens who have entered without
inspection as inadmissible. Pub. L. 104-208, § 301(c)(1). The
INS reasoned that the “except as otherwise provided” clause of
section 1182(a) allowed 1255(i)(1)(A)(i) to continue to apply to
7
However, § 1255(a), as it presently exists, and as it has
existed ever since many years prior to 1994, provides for
adjustment of status only as to “an alien who was inspected and
admitted or paroled into the United States” and who “is
admissible to the United States.” See note 5, supra.
15
aliens who had merely entered without inspection because to
conclude otherwise would mean that Congress, in amending section
1182(a)(6)(A), intended to render section 1255(i)(1)(A)(i)
superfluous and thereby work a major change in federal
immigration policy by excluding all aliens who had entered
without inspection from adjusting their status.
It is doubtful that this was what Congress intended because,
tellingly, Congress did not repeal section 1255(i)(1)(A)(i) when
it amended section 1182(a)(6)(A) on September 30, 1996 as part of
IIRIRA and in fact, as part of an omnibus appropriations bill,
revised it on the same day in small ways such as reformulating
the surcharge for adjusting status. See Pub. L. 104-208, §
376(a)(1), September 30, 1996 (substituting “$1,000" in 8 U.S.C.
§ 1255(i)(1) for “five times the fee required for the processing
of applications under this section.”). In addition, the
legislative history establishes that the rationale for the
amendment to section 1182(a)(6)(A) was to eliminate certain
procedural advantages some aliens acquired by entering illegally
rather than taking the lawful route. 74 NO. 11 Interpreter
Releases 499 (March 24, 1997), Appendix II at 5 (citing, inter
alia, Matter of Patel, 20 I. & N. Dec. 368, 370 (BIA 1991) and
Matter of Estrada-Betancourt, 12 I. & N. Dec. 191, 194 (BIA
1967)). The purpose of the IIRIRA change to section
1182(a)(6)(A), in other words, was not to preclude all aliens who
16
had entered without inspection from adjusting their status.
After careful consideration of IIRIRA’s implications, the INS
steered a middle course, adopting the position that the “except
as otherwise provided” clause of section 1182(a) in effect waived
the ground of inadmissibility created by section 1182(a)(6)(A).
As a consequence of this waiver, some aliens who had entered
without inspection, who had been eligible to adjust their status
after 1994 and prior to the IIRIRA amendment, would still be able
to adjust their status post-IIRIRA.
Mortera contends that the BIA, which rendered its decision
in accordance with this policy, was acting arbitrarily when it
refused to treat section 1255(i) as a waiver of his
inadmissibility under section 1182(a)(9)(C)(i)(I), which was
created by IIRIRA and has no pre-IIRIRA analogue. He in effect
argues that there is no salient distinction between sections
1182(a)(6)(A) and (a)(9)(C)(i), and reasons that if, through
section 1182(a)’s “except as otherwise provided” clause, section
1255(i)(1)(A)(i) waives the inadmissibility created by section
1182(a)(6)(A)(i), then it should ipso facto also waive the
admissibility created by section 1182(a)(9)(C)(i).
Mortera finds support for his position in the Ninth
Circuit’s recent Perez-Gonzalez decision. The Perez-Gonzalez
court considered, inter alia, whether aliens inadmissible under
section 1182(a)(9)(C)(i) may avail themselves of section
17
1255(i)(1)(A)(i) in the same way that aliens inadmissible under
section 1182(a)(6)(A) may do so. This was a novel question and,
unlike the extensive treatment the INS had given section
1182(a)(6)(A), there is no similar extensive official literature
on the interplay between sections 1255(i) and 1182(a)(9)(C)(i).
To the extent the INS had addressed this issue, it was in
conclusory terms, see Memorandum by Louis D. Crocetti, Jr., INS
Assoc. Comm’r (May 1, 1997), reprinted in 2 Bender’s Immigration
Bulletin 450, 452 (June 1, 1997), which the panel rejected.
Perez-Gonzalez, 379 F.3d at 792-93. The court held that an alien
inadmissible under section 1182(a)(9)(C)(i)(II) may adjust his or
her status under section 1255(i) because “[n]othing in the
statutory provisions regarding adjustment of status, nor in the
discussion of its purposes, suggests that aliens who have been
previously deported or removed are barred from this form of
relief.” Id. at 793.
The Tenth Circuit also recently addressed the same basic
question and expressly declined to follow Perez-Gonzalez.
Berrum-Garcia v. Comfort, 390 F.3d 1158, 1166-1168 (10th Cir.
2004); see also Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir.
2004) (stating, while considering somewhat different facts, “we
have grave doubts about the correctness of the Perez-Gonzalez
court’s conclusion.”). Contrary to the Perez-Gonzalez court, and
contrary to the position Mortera takes before us, the Tenth
18
Circuit distinguished the inadmissibility created by different
subsections of section 1182(a). The Berrum-Garcia court
concluded that the distinction between applying section 1255(i)
to “one-time” illegal entrants (under section 1182(a)(9)(B)) but
not those with multiple illegal entries under section
1182(a)(9)(C)(i) did not abrogate Berrum-Garcia’s due process
rights because the statutes make it clear that Congress
considered the conduct at issue in section 1182(a)(9)(C)(i) more
serious than that described in section 1182(a)(9)(B). 390 F.3d
at 1167-1168. The court focused in particular on the fact that
illegal aliens falling under the more severe section
1182(a)(9)(C)(i), to which Mortera is subject, face a lifetime
ban on admissibility,8 whereas those under section 1182(a)(9)(B)
are inadmissible only for certain discrete periods based on the
amount of illegal presence they accumulate. This observation led
the court to conclude that “Congress did not consider those who
reenter the United States in defiance of a prior deportation
order to be qualified for section 1255(i).” Id. at 1167-68.9
8
The alien subject to this lifetime ban may, after ten
years, apply to the Attorney General to have the ban lifted. 8
U.S.C. § 1182(a)(9)(C)(ii).
9
In the instant case, the basis for Mortera’s
inadmissibility is § 1182(a)(9)(C)(i)(I), which involves an
illegal reentry after accumulating more than one year of illegal
presence, whereas Berrum-Garcia was inadmissible under §
1182(a)(9)(C)(i)(II). For the purposes of our analysis, this is
a distinction without a difference because both provisions are
subject to the same default penalty of lifetime inadmissibility.
19
We agree with the Tenth Circuit that the conduct proscribed
by section 1182(a)(9)(C)(i) is both different from and more
culpable than the conduct of a one-time illegal alien subject to
inadmissibility under 1182(a)(9)(B)(i) and, by extension, more
culpable than the conduct of an alien who is inadmissible only
under section 1182(a)(6)(A)(i).10 The extent of the
inadmissibility created by different immigration violations
demonstrates that Congress intended to treat different violations
differently. In our view, the policy developed by the executive
branch, as expressed in the BIA’s opinion, is a rational approach
to reconciling the apparent tension in the statutes and in a
reasonable way implements the intent of Congress that some, but
not all, illegal aliens may adjust their status to that of a
lawful permanent resident. Unlike section 1182(a)(6)(A)(i),
application of section 1182(a)(9))C)(i) to preclude eligibility
for adjustment of status under section 1255(i)(1)(A)(i) does not
render section 1255(i)(1)(A)(i) a nullity. Not all aliens
covered by section 1255(i)(1)(A)(i) are rendered inadmissible by
Also, the two provisions ((I) and (II)) have the same single
subject (“Any alien who”) and are but alternate predicates to the
same single operative phrase, “who enters or attempts to reenter
the United States without being admitted is inadmissible.” See
note 3 supra.
10
Compare 8 U.S.C. § 1182(a)(6)(A)(i), under which
inadmissibility is predicated on entry without parole or
admission, and 8 U.S.C. § 1182(a)(9)(B)(i), under which
inadmissibility is based on unlawful presence. Under neither
provision is a second illegal entry an issue.
20
section 1182(a)(9)(C)(i). We hold, therefore, that the decision
of the BIA is entitled to Chevron deference because the Board was
not acting arbitrarily when it ruled that Mortera, who is
inadmissible under section 1182(a)(9)(C)(i)(I), is not eligible
to adjust his status under section 1255(i)(1)(A)(i).
Conclusion
For the foregoing reasons, the decision of the BIA is
AFFIRMED.
21