Ronaldo Marques v. Loretta Lynch, 2016 U.S. App. LEXIS 15296

Background

Ronaldo De Lima Marques, a Brazilian national, entered the U.S. lawfully as a nonimmigrant (B‑2, later student) in 2001 and married a U.S. citizen in 2005, then applied for adjustment to lawful permanent resident (LPR) status based on that marriage; his I‑485 was approved in 2006.
DHS investigated a marriage‑fraud ring tied to the spouse; the spouse pleaded guilty to visa‑fraud conspiracy and admitted her marriage to Marques was fraudulent; Marques divorced her in 2008.
DHS issued a Notice to Appear charging Marques removable under 8 U.S.C. § 1227(a)(1)(A) as inadmissible at time of adjustment under 8 U.S.C. § 1182(a)(7)(A)(i)(I) (no valid unexpired immigrant visa) and § 1182(a)(6)(C)(i) (marriage fraud); the fraud charge was later withdrawn.
The IJ found Marques removable for lacking a valid unexpired immigrant visa at the time of adjustment; the BIA affirmed and denied a motion to reopen; Marques petitioned for review in the Fifth Circuit.
The Fifth Circuit analyzed whether (1) § 1182(a)(7)’s documentation requirement (which applies “at the time of application for admission”) applies to post‑entry adjustments of status, and (2) whether Chevron deference to the BIA’s contrary interpretation was appropriate.
The court concluded § 1182(a)(7) does not apply to aliens previously validly admitted who apply for adjustment of status, vacated the BIA’s removal order, and denied as moot the petition challenging denial of reopening.

Issues

Issue	Marques' Argument	Government's Argument	Held
Whether § 1182(a)(7)(A)(i)(I) documentation requirement applies to post‑entry adjustment of status	§ 1182(a)(7) applies only to an "application for admission" and not to an in‑country adjustment	An adjustment of status is effectively an application for admission (or a recorded admission), so § 1182(a)(7) applies; BIA’s interpretation merits Chevron deference	Held: § 1182(a)(7) does not apply to aliens who were previously validly admitted and seek adjustment of status; BIA not entitled to Chevron deference on this point
Whether § 1227(a)(1)(A)’s cross‑reference incorporates timing/limitations of the referenced inadmissibility provision	Implicit in above: if § 1182(a)(7) doesn’t apply to adjustments, § 1227(a)(1)(A) cannot render Marques removable on that ground	§ 1227(a)(1)(A) contemplates inadmissibility at entry or adjustment; cross‑reference supports BIA view	Held: § 1227(a)(1)(A) does not override timing limits in referenced statutes; no ambiguity justifying deference
Whether Chevron deference applies to BIA’s interpretation equating adjustment with admission	N/A (Marques argues statute clear)	Agency interpretation reasonable and should be deferred to under Chevron	Held: No Chevron deference because statutory text and context resolve issue; prior circuit precedent disfavors equating adjustment with physical admission
Whether Martinez (and related caselaw re: § 1182(h)) compels treating adjustment as admission for other INA provisions	Marques relies on Martinez and other circuit decisions treating "admission" as physical entry post‑inspection, not adjustment	Government argues other INA provisions and §1255(b) support deeming adjustment a recorded admission	Held: Martinez and circuit authority show Congress and courts distinguish adjustment from physical admission; that authority supports rejecting BIA’s contrary view

Key Cases Cited

Majd v. Gonzales, 446 F.3d 590 (5th Cir.) (discussing review of BIA decisions)
Zhu v. Gonzales, 493 F.3d 588 (5th Cir.) (scope of appellate review over IJ and BIA)
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for agency deference)
Martinez v. Mukasey, 519 F.3d 532 (5th Cir.) (holding ‘‘admission’’ means physical entry after inspection; adjustment ≠ prior admission for § 1182(h) waiver bar)
Nino v. Holder, 690 F.3d 691 (5th Cir.) (analysis of what cross‑referencing INA provisions adopt)
Paz Calix v. Lynch, 784 F.3d 1000 (5th Cir.) (treatment of cross‑references in the INA)
Ortiz‑Bouchet v. U.S. Attorney Gen., 714 F.3d 1353 (11th Cir.) (holding § 1182(a)(7) applies to applicants for admission, not post‑entry adjustments)
Pei‑Chi Tien v. INS, 638 F.2d 1324 (5th Cir.) (predecessor circuit view on documentary requirements and adjustment of status)
Orellana‑Monson v. Holder, 685 F.3d 511 (5th Cir.) (Chevron analysis and agency deference guidance)