Sarango v. Attorney General of United States
2011 U.S. App. LEXIS 13356
| 3rd Cir. | 2011Background
- Sarango, Ecuadorian citizen, first entered the U.S. illegally in 1991 and was ordered deported; she departed after voluntary departure and later reentered in 2000.
- She married a U.S. citizen and pursued adjustment of status; she also applied for nunc pro tunc consent to reapply for admission under § 1182(a)(9)(C)(ii).
- In 2001-2004, INS granted conditional LPR status and later denied consent to reapply; she ultimately adjusted to unconditional LPR status in 2004.
- In 2006 DHS discovered her prior deportation order, leading to removal proceedings; an IJ found her inadmissible/removable and she was ordered removed.
- Sarango appealed to the BIA; the BIA dismissed her petition, holding the IJ lacked jurisdiction to entertain a nunc pro tunc consent request under § 1182(a)(9)(C)(ii).
- She petitioned for review in the Third Circuit, challenging the BIA’s jurisdictional ruling and removal findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ has jurisdiction to consider nunc pro tunc consent under § 1182(a)(9)(C)(ii). | Sarango contends the IJ can consider consent to reapply under § 1182(a)(9)(C)(ii). | DHS argues the Secretary of Homeland Security, not the IJ, has exclusive authority to consider § 1182(a)(9)(C)(ii) consent. | IJ lacks jurisdiction; DHS has exclusive authority. |
Key Cases Cited
- In re Briones, 24 I. & N. Dec. 355 (B.I.A. 2007) (inadmissibility leads to ineligibility for § 245(i) adjustment absent waiver)
- In re Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006) (retroactive permission to reapply cannot be granted where inadmissible under § 1182(a)(9)(C))
- In re Ruiz-Massieu, 22 I. & N. Dec. 833 (B.I.A. 1999) (Congressional division of authority limits IJ review in certain federal determinations)
- Khouzam v. Att'y Gen. of the United States, 549 F.3d 235 (3d Cir. 2008) (interchangeable use of deportation/removal terminology)
- Aguirre-Aguirre v. INS, 526 U.S. 415 (1999) (deference to reasonable BIA interpretations of INA statutorily grounded authority)