Palacios v. Holder Jr.
662 F.3d 1128
9th Cir.2011Background
- Carrillo de Palacios is a Mexican citizen who sought adjustment of status under INA § 245(i).
- She was deported in December 1984 and later entered the United States without admission in 1992 and again in 1997.
- The BIA issued an adverse decision in 2009 denying adjustment under § 1255(i) and deeming her inadmissible under § 1182(a)(9)(C)(i)(II).
- The petition for review was pursued under the REAL ID Act framework for review of final orders of removal.
- The court held that the alien’s 1997 return violated the § 1182(a)(9)(C)(i)(II) requirement of unlawful reentry after a prior removal, rendering her inadmissible.
- The court rejected the § 1182(a)(9)(C)(ii) ten-year exception because she did not spend ten years outside the United States before returning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| inadmissibility under § 1182(a)(9)(C)(i)(II) | Carrillo argued improper application of inadmissibility after prior removal. | BIA correctly found order of removal and unlawful entry after departure. | Carrillo inadmissible under § 1182(a)(9)(C)(i)(II). |
| eligibility for the § 1182(a)(9)(C)(ii) ten-year exception | Last departure 1992, readmission sought after more than ten years; argued exemption should apply. | Ten-year bar requires ten years absent before applying outside the United States; return after five years fails. | No eligibility under § 1182(a)(9)(C)(ii); ten years not satisfied. |
| interpretation of ten-year requirement and related case law | Argues Torres-Garcia et al. allow relief despite different timing. | Adopts BIA interpretation that ten-year period must elapse before applying and must be spent outside the U.S. | Court defers to and upholds BIA interpretation; ten-year requirement applies as interpreted. |
| retroactive application of prior panel decisions | Not explicitly raised in explicit form here. | Precedents are properly applied retroactively per Garfias-Rodríguez and Morales-Izquierdo. | Not dispositive to outcome; applicable as part of statutory interpretation. |
Key Cases Cited
- Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) (defers to BIA on 10-year waiver interpretation)
- Garfias-Rodríguez v. Holder, 649 F.3d 942 (9th Cir. 2011) (abrogated Acosta; clarifies inadmissibility bars and adjustment limits)
- Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010) (REAL ID Act review; de novo review of questions of law)
- Torres-Garcia v. INS, 23 I. & N. Dec. 866 (BIA 2006) (ten-year limitation on § 1182(a)(9)(C)(ii) waivers)
- Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004) (ten-year period requirement discussed in context of waivers)