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In re Miguel LEMUS-Losa, Respondent
File A98 724 586 – Kansas City
Decided November 29, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien who is unlawfully present in the United States for a period of 1 year, departs the
country, and then seeks admission within 10 years of the date of his departure from the
United States, is inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(2)(B)(i)(II) (2000), even if the alien’s departure was not
made pursuant to an order of removal and was not a voluntary departure in lieu of being
subject to removal proceedings or at the conclusion of removal proceedings.
(2) Adjustment of status under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2000), is
unavailable to an alien who is inadmissible under section 212(a)(9)(B)(i)(II) of the Act.
FOR RESPONDENT: Rekha Sharma-Crawford, Esquire, Overland Park, Kansas
AMICI CURIAE:1
Stephen W. Manning, Esquire; Jessica Boell, Esquire; and Jennifer
Rotman, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Matthew M. Downer, Appellate
Counsel; Jayme Salinardi, Assistant Chief Counsel
BEFORE: Board Panel: COLE, FILPPU, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated December 16, 2005, an Immigration Judge denied the
respondent’s application for adjustment of status under section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2000), based on his
finding that the respondent is inadmissible under section 212(a)(9)(B)(i)(II) of
the Act, 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2000). The respondent has appealed
from that decision and from the Immigration Judge’s January 23, 2006, order
denying reconsideration. The Department of Homeland Security (“DHS”)
opposes the appeal. The appeal will be dismissed.
We acknowledge the very helpful briefs submitted by the parties and by amici curiae,
participating members of the American Immigration Lawyers Association.
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I. FACTUAL AND PROCEDURAL HISTORY
The relevant facts are not in dispute. The respondent, a native and citizen
of Mexico, entered the United States without inspection in 1998 or 1999 and
resided here continuously for approximately 2 years. He returned to Mexico
in 2001 and remained there until 2003. The respondent reentered the
United States, again without inspection, in 2003 and has remained here in
unlawful status since that time.
On March 14, 2005, the DHS placed the respondent in removal proceedings,
charging him with removability under section 212(a)(6)(A)(i) of the Act for
being present without having been admitted or paroled, based on his unlawful
entry into the United States in 2003. On March 30, 1992, the respondent’s
father, a lawful permanent resident of the United States, filed a Petition for
Alien Relative (Form I-130) on the respondent’s behalf, seeking to classify
him as a family-sponsored immigrant in the second-preference category as the
unmarried son of a lawful permanent resident. See section 203(a)(2) of the
Act, 8 U.S.C. § 1153(a)(2) (1988). The visa petition was approved, and the
respondent was given a March 30, 1992, priority date. On September 29,
2005, the respondent filed an Application to Register Permanent Residence or
Adjust Status (Form I-485) with the Immigration Court pursuant to section
245(i) of the Act on the basis of his approved visa petition.
At a hearing on October 19, 2005, the Immigration Judge granted the
respondent a 2-month continuance until December 16, 2005, to enable him to
obtain a current visa priority date. However, the Immigration Judge also
expressed his concern that the respondent was ineligible for adjustment of
status because of his inadmissibility under section 212(a)(9)(B)(i)(II) of the
Act for seeking admission to the United States within 10 years of a departure
from the country following a period of unlawful presence of more than 1 year.
The Immigration Judge indicated that the respondent’s inadmissibility would
be addressed at the subsequent hearing and invited the respondent to seek a
waiver pursuant to section 212(a)(9)(B)(v) of the Act based on any extreme
hardship that his father would face upon his removal.
At the December 16, 2005, hearing, the respondent requested another
continuance because the visa numbers in his preference category had never
become current and, in fact, had retrogressed. The respondent offered no
evidence to support a section 212(a)(9)(B)(v) waiver. The Immigration Judge
denied a second continuance, concluding that even if the respondent was the
beneficiary of an immediately available immigrant visa, he was otherwise
ineligible to adjust his status under section 245(i) because of his
inadmissibility under section 212(a)(9)(B)(i)(II) of the Act. The Immigration
Judge concluded that the specific language of that section rendered the
respondent inadmissible, and he explicitly rejected the respondent’s contention
that based on the title language of section 212(a)(9), section 212(a)(9)(B)(i)(II)
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only applies to individuals who have previously been removed. The
Immigration Judge granted the respondent voluntary departure with an
alternate order of removal to Mexico.
The respondent moved for reconsideration and also timely appealed the
Immigration Judge’s December 16, 2005, decision. On January 23, 2006, the
Immigration Judge denied reconsideration. At our request, the parties filed
supplemental briefs and appeared for oral argument. We have also considered
the amicus curiae brief submitted on behalf of the respondent.
II. ISSUE
The principal issue on appeal is whether an alien who is inadmissible to the
United States under section 212(a)(9)(B)(i)(II) of the Act may obtain
adjustment of status under section 245(i) of the Act.
III. ANALYSIS
As a threshold matter, we agree with the Immigration Judge that the
respondent is inadmissible under section 212(a)(9)(B)(i)(II) of the Act. That
section of the statute provides, in pertinent part, as follows:
§ 1182. Inadmissible 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:
. . . .
(9) Aliens previously removed
. . . .
(B) Aliens unlawfully present
(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)2
prior to the
commencement of proceedings under section 1225(b)(1) of this title or
The reference to section 1254a(e) appears to be a drafting error. Prior to the passage of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of
Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), former section 244(e) of the Act,
8 U.S.C. § 1254(e) (1994), governed applications for voluntary departure in deportation
proceedings. In enacting the IIRIRA, Congress recodified all forms of voluntary departure
at section 240B of the Act, 8 U.S.C. § 1229c (2000), and created the new inadmissibility
ground at issue.
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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.
The respondent is inadmissible under section 212(a)(9)(B)(i)(II) of
the Act because he was unlawfully present in the United States for
2 years, voluntarily returned to Mexico in 2001, and then reentered
the United States without inspection in 2003 before seeking adjustment of
status in 2005. See generally Matter of Rodarte, 23 I&N Dec. 905, 908-10
(BIA 2006) (holding that section 212(a)(9)(B)(i)(II) of the Act applies to
aliens who depart the United States after being unlawfully present for 1 year
or longer and, within 10 years of such departure, again seek admission, either
at the border or from within the United States by means of adjustment of
status). We reject the respondent’s contention that the bar to admissibility in
section 212(a)(9)(B)(i)(II) does not apply to him because the title of
section 212(a)(9) refers to “Aliens previously removed.” In that regard, it is
well settled that the heading of a section cannot limit the plain meaning of the
text, and it is of use only when it sheds light on some ambiguous word or
phrase. See, e.g., Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R.
Co., 331 U.S. 519, 528-29 (1947). While some of the provisions of section
212(a)(9) do explicitly refer to previously removed aliens, see, e.g., sections
212(a)(9)(A)(i), (ii)(I), and (C)(i)(II) of the Act, the plain language of
section 212(a)(9)(B)(i)(II) also renders inadmissible an alien who has at least
1 year of unlawful presence and “who again seeks admission within 10 years
of the date of [his] departure or removal from the United States.”3
Section 212(a)(9)(B)(i)(II) of the Act (emphasis added); see also section
212(a)(9)(C)(i) of the Act (providing that any alien who has been unlawfully
present for an aggregate period of more than 1 year, or who has been ordered
removed, and then enters or attempts to reenter the country without being
admitted is inadmissible).
We reject the respondent’s argument that the term “departure” in this
context necessarily means a “voluntary departure” in lieu of removal. Instead,
we construe the plain language of section 212(a)(9)(B)(i)(II) of the Act to
encompass any “departure” from the United States, regardless of whether it is
a voluntary departure in lieu of removal or under threat of removal, or it is a
We are at a loss to explain the inclusion of the word “again” in both sections
212(a)(9)(B)(i)(I) and (II), since in neither provision is the alien described as having
previously sought admission. Thus, we view the word “again” as an apparent drafting
mistake that has no bearing on the issues presented in this case.
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departure that is made wholly outside the context of a removal proceeding.
We find no indication that Congress intended to limit the plain and ordinary
meaning of the term “departure” in section 212(a)(9)(B)(i)(II) in the manner
the respondent contends. Rather, the use of the term “departure” in that
section appears to be designed as a shorthand means of incorporating both
types of departure (i.e., voluntary departure and all other departures) that are
set forth immediately above in section 212(a)(9)(B)(i)(I). Congress’s use of
the term “departed” in another part of section 212(a)(9) likewise supports a
broad interpretation of the term “departure” in this context. Section
212(a)(9)(A)(i)(II) of the Act (rendering inadmissible aliens who departed the
United States while an order of removal was outstanding, and who seek
admission within certain periods following the date of his or her departure or
removal); see also Cervantes-Ascencio v. U.S. INS, 326 F.3d 83, 85-86 (2d
Cir. 2003) (construing section 212(a)(9)(B)(i)(II) of the Act to impose a
10-year bar to readmission on all aliens who have accumulated the requisite
unlawful presence, irrespective of how they subsequently departed the
United States). Moreover, we agree with the Immigration Judge that the
heading of section 212(a)(9) does not limit the application of the text of
section 212(a)(9)(B)(i)(II). We also find no merit in the respondent’s
contention that section 212(a)(9)(B)(i)(II) does not apply to aliens, like
himself, who are not applying for admission at a foreign consulate. In fact, we
have expressly concluded otherwise. See Matter of Rodarte, supra, at 908.
Based on the foregoing, we conclude that the respondent is inadmissible
under section 212(a)(9)(B)(i)(II) of the Act. We now turn to whether the
respondent may obtain adjustment of status under section 245(i) despite
his inadmissibility under section 212(a)(9)(B)(i)(II). We have this day held
that aliens who are inadmissible under section 212(a)(9)(C)(i)(I)
of the Act are ineligible for adjustment of status under section 245(i). See
Matter of Briones, 24 I&N Dec. 355 (BIA 2007). In so holding, we disagreed
with contrary conclusions reached by the Ninth and Tenth Circuits. See Acosta
v. Gonzales, 439 F.3d 550 (9th Cir. 2006); Padilla-Caldera v. Gonzales, 426
F.3d 1294 (10th Cir.), amended and superseded on reh’g, 453 F.3d 1237 (10th
Cir. 2005).4
4 We note that Matter of Briones, supra, arose in the jurisdiction of the United States Court
of Appeals for the Fifth Circuit; thus, the Ninth and Tenth Circuit’s decisions were not
binding in that case. See Matter of Anselmo, 20 I&N Dec. 25, 31-32 (BIA 1989). We did
not reach the question of the application of our holding in Matter of Briones to subsequent
cases arising in the Ninth and Tenth Circuits in light of National Cable & Telecommunications
Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). See Matter of Briones, supra, at 371
n.9.
377 Cite as 24 I&N Dec. 373 (BIA 2007) Interim Decision #3591
Upon review of the facts of this case, we conclude that much of our
reasoning in Matter of Briones, supra, applies to aliens, like the respondent,
who are inadmissible under section 212(a)(9)(B)(i)(II) of the Act. That is, for
purposes of section 245(i) adjustment, we see no reason to distinguish between
aliens who are inadmissible under section 212(a)(9)(C)(i)(I) of the Act for
making or attempting to make an illegal reentry into the United States
following a prior period of more than 1 year of unlawful presence, and aliens
who, like the respondent, accrued more than 1 year of unlawful presence,
illegally reentered the country, and then sought admission through adjustment
of status within the United States. As we stated in Matter of Briones, the plain
language of section 245(i)(2)(A) of the Act unambiguously requires an
applicant for adjustment of status to prove that he is “admissible to the
United States for permanent residence.” Aliens who are inadmissible under
section 212(a)(9)(B)(i)(II) of the Act necessarily fail to meet that requirement,
absent an available waiver.
We also recognized in Matter of Briones, supra, at 367, that in every case
where Congress has extended eligibility for adjustment of status to
inadmissible aliens, it has done so unambiguously. We therefore find
significant Congress’s failure to expressly provide an exception to the section
212(a)(9)(B)(i)(II) inadmissibility ground for section 245(i) applicants in
section 212(a)(9) or elsewhere. Furthermore, as it did with section
212(a)(9)(C) of the Act, Congress expressly provided for a waiver of the
inadmissibility grounds in section 212(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 (“NACARA”), as amended by Pub. L.
No. 105-139, 111 Stat. 2644 (1997), and the Haitian Refugee Immigration
Fairness Act of 1998, tit. IX, Pub. L. No. 105-277, 112 Stat. 2681-538
(“HRIFA”).5
The fact that Congress deemed it necessary to provide such
waivers for NACARA and HRIFA adjustment applicants bolsters our
conclusion. See Matter of Briones, supra, at 368.
Moreover, based on our reasoning in Matter of Briones, supra, we conclude
that applying the admissibility requirement of section 245(i)(2)(A) of the Act
to aliens who are inadmissible under section 212(a)(9)(B)(i)(II) does not lead
to absurd consequences, as it would if we applied that requirement to aliens
who are inadmissible under section 212(a)(6)(A)(i) for being present in the
United States without having been admitted or paroled–i.e., those who have
5 The waiver was included in the December 2000 LIFE Act Amendments of 2000, Div. B,
tit. XV, Pub. L. No. 105-554, 114 Stat. 2763 (“LIFE Act Amendments”) (effective as if
included in the enactment of the Legal Immigration Family Equity Act, tit. XI, Pub. L. No.
106-553, 114 Stat. 2762 (2000) (“LIFE Act”)).
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“entered without inspection” and therefore are eligible for relief pursuant to
section 245(i)(1)(A). We decline to read an implicit waiver of section
212(a)(9)(B)(i)(II) inadmissibility into section 245(i)(1)(A) merely because
aliens who are inadmissible on that ground and who are seeking admission
through section 245(i) adjustment may have “entered the United States
without inspection.” We note that, like section 212(a)(9)(C)(i)(I), section
212(a)(9)(B)(i)(II) is not coextensive with section 212(a)(6)(A)(i) of the Act
because it does not punish individuals who enter the country without
inspection. Rather, section 212(a)(9)(B)(i)(II) punishes aliens who seek
admission, either by applying for admission at the border or through
adjustment of status from within the United States, after having previously
accrued a period of unlawful presence. See section 212(a)(9)(B)(i)(II) of the
Act; see also Matter of Rodarte, supra, at 909.
We also reiterate that for the reasons we stated in Matter of Briones, supra,
the physical presence requirement in section 245(i)(1)(C) of the Act does not
operate to excuse immigration violations that take place after December 21,
2000, and trigger section 212(a)(9) inadmissibility grounds. In sum, while we
recognize the remedial purposes of section 245(i) that are noted by the parties,
we conclude that making section 245(i) adjustment unavailable to aliens who
are inadmissible under section 212(a)(9)(B)(i)(II), as well as section
212(a)(9)(C)(i)(I), gives effect to the plain language of the Act. It would also
appear to be consistent with the overall purpose of section 212(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,” and is faithful to
Congress’s overall scheme of expressly waiving inadmissibility grounds where
such waivers are intended.6 Matter of Rodarte, supra, at 909. Based on the
We further note that barring individuals who are inadmissible under section
212(a)(9)(B)(i)(II) of the Act from adjusting their status under section 245(i) would appear
to comport with the purpose of the LIFE Act, which extended section 245(i) availability to
reunite families with aliens who have generally “played by the rules.” See 146 Cong. Rec.
S11263, S11265 (daily ed. Oct. 27, 2000), 2000 WL 1608338 (statement of Sen. Hatch).
We note that the House of Representatives report accompanying the LIFE Act Amendments
of 2000 states that “[i]n the absence of section 245(i) . . . aliens must pursue their
visa applications at a U.S. embassy or consulate outside the United States and are potentially
subject to the three and 10 year bars on admissibility instituted by section 301(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.” H.R. Rep. No.
106-1048, at 230 (2001) (report on the activities of the Committee on the Judiciary), 2001
WL 67919. This clear reference to section 212(a)(9)(B) of the Act–i.e., the only provision
added by the IIRIRA discussing 3-year and 10-year bars to admissibility–seems to suggest
that aliens who would otherwise be inadmissible under section 212(a)(9)(B)(i)(II) may
(continued…)
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foregoing, we agree with the Immigration Judge that the respondent is
statutorily ineligible for adjustment of status under section 245(i) of the Act
because of his inadmissibility under section 212(a)(9)(B)(i)(II).
We also reject the respondent’s remaining arguments. Specifically, in light
of our conclusion that the respondent’s inadmissibility under section
212(a)(9)(B)(i)(II) of the Act bars his eligibility for adjustment of status under
section 245(i), any error the Immigration Judge committed in denying the
respondent’s request to continue the proceedings until an immigrant visa
became immediately available is harmless. Further, we decline to remand this
case to allow the respondent to seek a waiver of inadmissibility under section
212(a)(9)(B)(v) of the Act because he has failed to introduce any evidence to
substantiate his claim that if he is refused admission, his lawful permanent
resident father will suffer extreme hardship. See Matter of Coelho,
20 I&N Dec. 464, 471-72 (BIA 1992) (providing that to obtain a remand, a
respondent is required to show the presence of previously unavailable, material
evidence and new evidence that would likely change the result of the case if
the proceedings were reopened). Also, we need not consider whether the
respondent’s failure to pay a voluntary departure bond renders him ineligible
for adjustment of status in light of our decision that he does not qualify for
such relief in any event because of his inadmissibility.
Moreover, we reject the respondent’s alternative argument that the
Immigration Judge should have administratively closed the case upon the
consent of the parties. We are limited in our fact-finding authority and are
therefore unable to speculate as to what conversations may have occurred
off the record on December 16, 2005, between the respondent and the DHS.
8 C.F.R. § 1003.1(d)(3)(iv) (2007). Even if the DHS did consent to
administrative closure, no purpose would be served by administratively closing
this case, given the respondent’s statutory ineligibility for adjustment of status.
Finally, to the extent that the respondent challenges the Immigration Judge’s
January 23, 2006, decision denying reconsideration of his previous order, we
note that the respondent never perfected an appeal from that decision. In any
case, we find that the Immigration Judge committed no error.
(…continued)
qualify for adjustment of status under section 245(i). See IIRIRA § 301(b), 110 Stat. at
3009-577. Nevertheless, we do not construe this single statement as dispositive of the issue
in light of the plain language in section 245(i) requiring aliens to be admissible to the
United States before they may seek penalty-fee adjustment of status. To the extent that any
statements in the legislative history directly conflict with the unambiguous meaning of the
statute, the statute must prevail. See U. S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 506-07
(1993) (rejecting a petitioner’s citation to a single statement in a House of Representatives
report because it was “at odds” with the statute’s plain language).
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IV. CONCLUSION
In light of the foregoing, we agree with the Immigration Judge that the
respondent is ineligible for adjustment of status under section 245(i) of the Act
because of his inadmissibility under section 212(a)(9)(B)(i)(II) of the Act. The
respondent has not demonstrated his eligibility for a waiver of inadmissibility
under section 212(a)(9)(B)(v) of the Act. The respondent has also failed to
establish any other material errors in the proceedings below. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
381