Gustavo Nunez-Moron v. Eric Holder
702 F.3d 353
| 7th Cir. | 2012Background
- Nunez-Moron, a Mexican citizen, entered illegally in 1992 and sought cancellation of removal, waiver of inadmissibility, and adjustment based on I-130 petitions from wife (US citizen) and father (LPR).
- In 1999 he was convicted of misdemeanor battery; record indicates expedited removal occurred after he arrived at the border with false ID, and he was removed under expedited removal provisions.
- Nunez re-entered the United States on December 1, 1999.
- He filed asylum and related applications, which were withdrawn; he then sought cancellation of removal or voluntary departure; IJ denied cancellation due to not meeting 10-year presence, granted voluntary departure.
- Board remanded for record issues, then reinstated dismissal of his appeal; Nunez argued for adjustment under §1255(i) and sought nunc pro tunc relief; Board rejected these arguments and held he was ineligible for cancellation due to lack of continuous presence and for adjustment due to expedited removal.
- Nunez petitions for review; the Seventh Circuit affirms, ruling against his adjustment and cancellation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adjustment eligibility despite §1255(i) | Nunez contends §1255(i) allows adjustment or a retroactive waiver, conflicting with §1182(a)(9)(C)(i)(II). | Board follows Briones/Torres-Garcia, denying adjustment when inadmissible under §1182(a)(9)(C). | §1182(a)(9)(C)(i)(II) precludes adjustment; Briones/Torres-Garcia deferentially controlling. |
| Expedited removal and adjustment interplay | Expedited removal may not bar adjustment or nunc pro tunc relief if not reinstated. | Torres-Garcia forecloses nunc pro tunc relief to avoid §1182(a)(9)(C)’s bar. | Court declines reconsideration of nunc pro tunc relief; adjustment barred. |
| Cancellation of removal and continuous presence | Nunez asserts continuous presence was not severed because removal was not a full departure beyond 90 days. | September 24 expedited removal order severed continuous presence under governing Board precedent. | Expedited (and actual) removal severed continuous physical presence; Nunez did not qualify for cancellation. |
| Reinstatement of prior removal order and §1231(a)(5) impact | DHS reinstatement status could affect eligibility for adjustment. | Court need not decide given alternative grounds affirm the Board. | Not reached; affirmed on other grounds. |
Key Cases Cited
- In re Briones, 24 I. & N. Dec. 355 (BIA 2007) (controls interplay between §1182(a)(9)(C) and §1255(i))
- In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006) (precludes adjustment under §1255(i) when inadmissible under §1182(a)(9)(C))
- Gonzalez-Balderas v. Holder, 597 F.3d 869 (7th Cir. 2010) (deferred to Briones/Torres-Garcia on nunc pro tunc relief)
- Torres-Garcia (Gonzalez-Balderas citation used elsewhere in opinion), 23 I. & N. Dec. 866 (BIA 2006) (see above)
- Reyes-Sanchez v. Holder, 646 F.3d 493 (7th Cir. 2011) (recognizes severance of continuous presence for cancellation under Board approach)
- In re Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005) (expedited removal can terminate continuous presence)
- In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (departure under threat of removal constitutes break in physical presence)