651 F.3d 969
9th Cir.2011Background
- Carrillo de Palacios, a Mexican citizen, faced removal proceedings in 2005 for unlawful entry, seeking adjustment under 8 U.S.C. §1255(i).
- She had been deported in December 1984 and later reentered the United States in 1992 and 1997 without admission.
- BIA, in 2009, concluded she was inadmissible under 8 U.S.C. §1182(a)(9)(C)(i) and ineligible for the 10-year exception in §1182(a)(9)(C)(ii).
- The IJ initially granted adjustment, but the BIA reversed, denying status under §1255(i).
- The Ninth Circuit defers to BIA interpretations and ultimately holds the 10-year bar requires ten years outside the U.S. before applying, which Palacios did not satisfy, leading to denial of the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1182(a)(9)(C)(i)(II) renders Palacios inadmissible | Palacios argues the issue is not fully addressed; she contends she complied with requirements. | BIA held she was order-removal and unlawfully reentered, hence inadmissible. | Yes; Palacios inadmissible under §1182(a)(9)(C)(i)(II). |
| Whether Palacios qualifies for the §1182(a)(9)(C)(ii) 10-year bar | Last departure 1992; application filed 2007; over ten years elapsed before applying. | Ten-year bar requires ten years outside before applying; she left for five years before returning in 1997. | No; she did not satisfy the ten-year absence requirement and thus not eligible for the waiver. |
| Interpretation of the ten-year requirement and Chevron deference to BIA | Precedents suggesting ten-year absent should apply to her circumstances. | Agency precedent requires ten years outside; circumvention by earlier reentry is inadequate. | Ten years must elapse outside the U.S. before applying; Palacios failed to meet this. |
Key Cases Cited
- Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) (defers to BIA on inadmissibility and 10-year waiver aspects)
- Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010) (de novo review of legal questions under REAL ID Act; 8 U.S.C. §1252(a)(2)(D))
- Torres-Garcia, 23 I. & N. Dec. 866, (B.I.A. 2006) (BIA 2006) (held that aliens cannot obtain waiver to circumvent the 10-year limit by unlawful reentry)
- Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011) (abrogated Acosta; affirmed that adjustment under §1255(i) requires admissibility unless §1182(a)(9)(C)(ii) applies)