CHERUKU v. Attorney General of US
662 F.3d 198
| 3rd Cir. | 2011Background
- Cheruku, an Indian citizen, initially entered the U.S. on a B-1 visa in 1995 and overstayed, accruing unlawful presence.
- Her employer's labor certification was approved in 1999, and an immigrant petition followed in 2000; she filed LIFE Act adjustment in 2001.
- While adjustment was pending, she received advanced parole; the document warned that departing could render her inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i).
- Cheruku departed in 2002 using advanced parole; upon return she faced a ten-year bar under § 1182(a)(9)(B)(i)(II) due to unlawful presence and reentry.
- In 2004 her LIFE Act adjustment was denied as inadmissible; removal proceedings followed with continued denial of adjustment.
- BIA denied Cheruku's appeal in 2009, citing Lemus-Losa and rejecting equitability arguments and nunc pro tunc relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LIFE Act §1255(i) waives inadmissibility for §1182(a)(9)(B)(i)(II). | Cheruku argues LIFE Act implicitly waives the ten-year bar. | Góvernment argues ambiguity; LIFE Act does not implicitly waive §1182(a)(9)(B)(i)(II). | Ambiguity found; BIA's interpretation reasonable and accepted. |
| Whether the BIA's interpretation of the LIFE Act and IIRIRA is a permissible construction of the statute. | Cheruku would have the LIFE Act apply like §1182(a)(6)(A)(i) to allow adjustment. | Góvernment asserts BIA correctly distinguishes between general and specific inadmissibility provisions. | BIA's construction deemed reasonable and consistent with statutory structure. |
| Whether DHS equitable estoppel or nunc pro tunc relief is available to Cheruku. | Cheruku seeks estoppel or retroactive relief due to advanced parole assurances. | DHS cannot be estopped; nunc pro tunc relief limited and statutorily foreclosed here. | Equitable estoppel and nunc pro tunc relief denied. |
Key Cases Cited
- Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009) (BIA's Lemus-Losa interpretation of LIFE Act as non-waiver for §1182(a)(9)(B)(i)(II))
- Herrera-Castillo v. Holder, 573 F.3d 1004 (10th Cir. 2009) (ambiguity and LIFE Act interplay with inadmissibility; supports deference to BIA)
- Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011) (LIFE Act and waivers; court upholds BIA interpretation)
- Padilla-Caldera v. Holder, 637 F.3d 1140 (10th Cir. 2011) (discretion and LIFE Act relief in other contexts)
- Ramirez v. Holder, 609 F.3d 331 (4th Cir. 2010) (statutory waivers and LIFE Act purposes)
- Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. 2008) (statutory waivers and discretionary relief context)
- Renteria-Ledesma v. Holder, 615 F.3d 903 (8th Cir. 2010) (structure of inadmissibility provisions and LIFE Act interaction)
- Villanueva v. Holder, 615 F.3d 913 (8th Cir. 2010) (interpretation of inadmissibility and LIFE Act framework)
- Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008) (concerns LIFE Act and IIRIRA interplay; non-nullity concerns)
- Ramirez v. Holder, 609 F.3d 337 (4th Cir. 2010) (discusses nunc pro tunc relief and statutory waivers)