CHERUKU v. Attorney General of US

, Reddy Shireesha CHERUKU1

Petitioner

ATTORNEY GENERAL OF STATES,

the UNITED

Respondent.

No. 10-1176. Appeals,

United States Court of

Third Circuit.

Argued May 2011. Sept.

Filed: According (A.R. 82, respective 86). to the 1-485 of status decisions. We application, petitioner's full name "Shi- caption therefore amend and will refer to Cheruku," Reddy reesha "Reddy Shiree- name, petitioner by her last Cheruku. sha'' as the IJ and BIA both stated in their Cuccia,

Edward Esquire (Argued), J. Cuccia, York, NY, Ferro & New for Peti- tioner. Glen,

Patrick J. Esquire (Argued), Ben- Zeitlin, United, jamin Esquire, States De- Justice, partment of of Immigration Office Litigation, Division, Civil Washington, D.C., Respondent. McKEE,

Before: Judge, Chief RENDELL, SCIRICA and Circuit Judges.

OPINION OF THE COURT SCIRICA, Judge. Circuit Reddy petition Cheruku a filed for re- view the BIA’s affirming decision denial of her application adjust her status to permanent a lawful resident under Legal Immigration Family Act, Equity 1255(1), 8 U.S.C. because she was found inadmissible U.S.C. 1182(a)(9)(B)(i)(II). deny We will petition for review.

I. Cheruku, The facts are undisputed. India, citizen of entered the United States visa, in 1995 B-l on a which she subse- quently overstayed. After her visa ex- pired, year she accrued than one unlawful presence in the United States. employer Cheruku and her filed application for labor certification that States, presence unlawful the United Her em- of in March 1999. approved was States, Alien the United and subse departed Work- then filed Petition ployer 29, 2000. years November sought was admission within ten quently er that 21, 2001, applied to departure.3 On December to that of immigration status adjust her re- proceedings, In removal Legal resident permanent lawful newed her Act, 8 Family Equity U.S.C. Immigration initially Immigration Judge status. (LIFE Act). § 1255® jurisdiction adjust- he over held lacked adjust her for application While was an application ment because Cheruku ap pending, was Cheruku ment of status response, ap- Cheruku arriving alien. an advanced for and was plied The BIA to the BIA. remanded pealed parole document parole.2 The advanced of light to the IJ interven- proceedings if she ac to Cheruku warned that issued ing permits case law that days than of unlawful 180 crued adjudicate adjustment certain judges to 1, 1997, April subsequent to presence ap- Cheruku’s applications. The IJ denied adjustment of for subsequent applying 27, 2008, February grant- on plication status, departed then voluntary request departure. her ed States, “may inadmissible be found she timely appealed to the BIA. 212(a)(9)(B)® [8 U.S.C. section under BIA, Before the Cheruku made several 1182(a)(9)(B)®] when [she] of the Act first, that LIFE Act arguments: States to resume to the United return[s] admissibility; statutory bar to waived application.” of Not [her] processing second, the circumstances of her de- that warning, this trav withstanding factually were distin- parture and return the United States and used eled outside prior BIA guishable from those issue parole permitted to be third, Department that the of precedents; her upon return reenter United States (DHS) Security equi- should be Homeland 28, on November 2002. tably estopped finding her inadmissi- 28, 2004, April Cheruku’s On ble, alternative, or in the that she should the LIFE status under tunc, retroactive, pro nunc afforded be her travel outside denied because Act was relief; grant finally, equitable her inadmissible country of the rendered require DHS parole should of an advanced ten 8 period years for a under U.S.C. disregard departure. 1182(a)(9)(B)(i)(II), commonly referred on appeal BIA Cheruku’s The denied petition filed a ten-year to as the bar. She decision, 18, In its December 2009. 5, August reopen, which was denied In re Lemus- opinion on its 2004, BIA relied 31, Cheruku was August On (BIA Losa, 373, 24 I. & N. Dec. 379-80 charging Appear with a Notice to served 2007), aliens inadmissible in which it held ten- being removable under the her with ineligible 1182(a)(9)(B)(i)(II), bar, be year 8 U.S.C. LIFE status under the year more than one cause she had accrued ” country tempo- but is not a formal "admission”.’ parole permits alien Advanced INS, pending rarily Ngo in “the United States (quoting remain Chi v. Id. Thon regarding application for ad- his 390, (3d Cir.1999)). a decision 392 n. 1 195, Riley, 366 F.3d Bamba v. mission.” (3d Cir.2004). to enter the When used n. 2 she is inadmissible 3. Cheruku concedes “ travel, initially 'this or after United States provision. ingress permission ... for into amounts to ject BIA principles Act. The noted United States to the of deference articu- [NRDC, for the Appeals Court Seventh Circuit lated in Chevron v. 467 U.S. question, into had called Lemus-Losa see S.Ct. 81 L.Ed.2d 694] (7th Holder, (1984),” Gen., Kaplun 576 F.3d 752 v. Att’y Lemus-Losa v. 602 F.3d (3d Cir.2010). Cir.2009), its understanding but reiterated Lemus-Losa, set forth the statutes as “The BIA’s construction of the addition, 373. In I. & N. Dec. BIA statute entitled to deference and must parole emphasized the advanced document accepted by be if Court it is based explicitly warned if issued Cheruku upon permissible construction of the States, she were to leave the United she Gonzales, Filja statute.” upon could found inadmissible her re- Cir.2006) (3d Chevron, (citing 467 U.S. accordingly rejected turn. BIA Che- 842-43, 104 2778). S.Ct. Such deference equitable estoppel argument, ruku’s find- “especially appropriate immigra ing part no on the misconduct DHS. tion context where officials exercise espe rejected The BIA also request Cheruku’s cially sensitive political functions that im for relief stating pre- retroactive it was plicate questions foreign relations.” by statute from creating cluded a retroac- 415, Aguirre-Aguirre, 425, INS v. 526 U.S. inadmissibility, reject- tive waiver of and it (1999) 1439, 119 S.Ct. 143 L.Ed.2d 590 argument ed her that the parole (internal omitted). quotation document should render her departure a nullity. Consequently, the BIA affirmed We two-part inquiry, conduct a Immigration Judge’s conclusion that asking first “whether ‘the statute is silent ineligible Cheruku was ambiguous or respect specific with to the status, request her for volun- Id., 424, issue’ before [us].” 119 S.Ct. tary departure. Chevron, (quoting 843, 467 U.S. at timely petitioned for review of 2778). If S.Ct. language statute’s the BIA’s decision and argu- renews her is clear and unambiguous, we uphold the on appeal. ments plain meaning of the statute. See INS v. Cardoza-Fonseca, 421, 480 U.S. 432-33 & II. 12, 1207, n. 107 S.Ct. 94 L.Ed.2d 434 appellate jurisdiction The BIA had over (1987). But if the statute silent am Cheruku’s removal proceeding under 8 “ biguous, question ‘the for the court [is] 1003.1(b)(3) §§ C.F.R.. and 1240.15. We the agency’s whether answer based on a jurisdiction have to final review orders of ” permissible construction the statute.’ Immigration removal under the and Na- Aguirre-Aguirre, 526 U.S. at (INA), 1252(a). tionality § Act 8 U.S.C. Chevron, 1439 (quoting S.Ct. 467 U.S. at 2778). Because the BIA a fully issued 104 S.Ct. ambiguity When the reasoned opinion, we review the BIA’s is implicit, “if the [BIA’s] construction is opinion as agency reasonable, the final Espi decision. requires Chevron a federal Gen., Att’y nosa-Cortez v. 607 F.3d court to accept agency’s construction (3d Cir.2010). statute, questions We review of of agency’s even if reading law, such interpretation BIA’s differs what the court believes statutes, novo, “including de statutory interpretation.” best Nat’l Cable pure questions both of law and applications & Telecomms. Ass’n v. Brand X Internet facts,” of law to undisputed Servs., v. Att’y 967, 980, Rranci 545 U.S. 125 S.Ct. Gen., 165, 171 (3d Cir.2008), (2005). “sub- 162 L.Ed.2d 820 1255(i)

III. 245(i), as 8 codified U.S.C. —oth- re as the LIFE Act. In erwise known A. (BIA Briones, 24 I. N. Dec. 358-61 & challenges appeal, On 2007). per- The LIFE Act was enacted to her inadmissibili- BIA’s determination unlawfully present mit certain aliens ty under U.S.C. adjust apply to their sta- United States to of status under precludes permanent tuses that of lawful residents 1255(i). Act, In 8 U.S.C. the LIFE having inspec- undergo consular without the LIFE Act she contends support, Briones, See tion and admission abroad.4 statutory ten-year bar ad- waives face, 24 I. N. On its & Dec. 359-61. Conversely, the Government missibility. 1255(i)(2)(A) requires of the LIFE Act provi- the conflict between contends to be “admissible” the United alien grounds Act certain the LIFE sions of qualify adjustment. in order to States ambiguity inadmissibility introduces 1997, Congress Illegal enacted the and, consequent- statutory scheme into the Re- Immigrant Reform and Immigration BIA’s deference ly, that we owe (IIRIRA), 104- Act Pub.L. No. sponsibility statutory interpretation. reasonable 301,110 3009-546, Stat. 3009-577-78 which, (1997), among other added things, statutory provisions the INA several task is determine Our first inadmis- rendering groups certain of aliens ambigu statutory is scheme whether Briones, 24 sible. See 424, I. & N. Dec. at 358. Aguirre-Aguirre, U.S. at 526 ous. 1182(a)(6)(A)(i) INA, added Section of Congress amend 119 S.Ct. 1439. IIRIRA, generally renders inadmissible a new section— by adding INA ed the certification, 1255(i) for described in § tion labor part, reads: 4. In relevant (B) subparagraph that was filed after Jan- (i) Adjustment of aliens in status certain 14, 1998, present uary physically in the is in States physically present United 2000; (1) Notwithstanding provisions United States on December section, (a) (c) of an and this apply Attorney subsections for the to the General present physically alien adjustment his or her status to that of an States— permanent lawfully for resi- admitted alien (A) who— dence (i) the United States without in- entered spection; or (2) Upon receipt application an of such enumerat- is within one of the classes (ii) hereby required, Attor- and sum section; (c) of this ed in subsection may adjust the ney status General (including beneficiary (B) who a is lawfully of an alien admitted alien alien, principal of the if spouse or child if— permanent residence for eligible visa under section to receive a eligible to receive an im- (A) the alien is 1153(d) title) of— of this migrant and admissible to the visa petition sec- a for classification under (i) residence; permanent for United States this that was filed with tion 1154 of title April Attorney on or before General immigrant immediately (B) an visa is 30, 2001; or ap- at the time the available to the alien certifica- application an labor (ii) plication filed. 1182(a)(5)(A) of this section tion under regula- pursuant that was filed title section, extend- Congress amended the later Secretary of Labor on or tions of the date, ing expiration adding additional date; its before such Holder, v. who, requirements. See Padilla-Caldera beneficiary of a of a (C) in the case Cir.2011). (10th classification, 7 applica- n. or petition an Gonzales, (5th v. “present who are the United Cruz those Cir.2005). being paroled, States without admitted or the United States at arrive[ ] who any designated other than as place time or Attorney Congress General.” also Having ambigu found the statute to be other, specific,

added bars admis- ous, we evaluate whether the BIA’s inter sibility it pro- when enacted IIRIRA. The pretation of the statutes is reasonable. 1182(a)(9)(C) § visions of render inadmissi- Servs., See Brand X Internet 545 U.S. at having prior immigration ble certain aliens 980, 125 S.Ct. 2688. The BIA has read violations, provisions of § implicit as an waiver of inadmis 1255© 1182(a)(9)(B) § render inadmissible 1182(a), § sibility only under but for those period of time aliens who have accrued a aliens who are inadmissible period presence. of unlawful 1182(a)(6)(A)©. Briones, I. See 24 & N. BIA, Dec. at According to the adjustment provisions The 1255© “[LIFE Act] remains available clearly are in tension with the bars to aliens inadmissible 1182(a)(6)(A)©. admissibility set forth in [1182(a)(6)(A)© only contrary ] because a matters, complicating prefato Further interpretation would language render the 1182(a) ry language of states that “[e]x LIFE internally [the soAct] contradic cept provided chapter, otherwise tory effectively statute, as to vitiate the aliens who are ... ineligi inadmissible absurd result that Congress presumed ble to be admitted to the United States.” not to have (citing intended.” Id. Demar this “savings applied, Unless clause” is 184, 190-91, est Manspeaker, U.S. straightforward (1991)). S.Ct. L.Ed.2d 608 1182(a)(6)(A)© would render the LIFE not, however, BIA found the by barring Act a nullity specific more bars to admissibility, added any paroled. individual admitted or IIRIRA, by to be waived the LIFE 231, See Mora v. Mukasey, 550 F.3d 237- Briones, Act. In the BIA also held that Cir.2008). (2d 38 Because we are “unable adjustment of status under the LIFE Act statutory to infer from the language the is unavailable immigration to recidivist vio way in implicitly which waives un 1255© lators barred from admission under 8 presence lawful as ground for inadmissi 1182(a)(9)(C)(i)(I). § U.S.C. at See id. 371. bility,” join we with our sister circuits Every circuit appeals court of to review finding ambiguous. the statute Herrera- upheld the Briones decision it as a Holder, 1004, Castillo v. 573 F.3d 1008 interpretation reasonable statutory — (10th Cir.2009), denied, U.S. -, cert. scheme. See Garfias-Rodriguez, 649 F.3d 3505, 130 S.Ct. (2010); 177 L.Ed.2d 1095 948; Padilla-Caldera, at 1152; 637 at F.3d Holder, see also Garfias-Rodriguez v. 649 Ramirez, 337; 609 F.3d at Renteria-Le (9th 942, Cir.2011); F.3d 948 Padilla- desma, Villanueva, 908; 615 at F.3d 615 Holder, Caldera v. 637 F.3d 1148 Mora, 915; 239; F.3d at 550 F.3d at Ra (10th Cir.2011); Holder, v. Ramirez 609 mirez-Canales, 517 F.3d at 910. (4th Cir.2010); Renteria- Holder, (8th Lemus-Losa, Ledesma v. 615 F.3d In the BIA considered the Cir.2010); Holder, here, Villanueva provision 615 F.3d at issue which in- renders (8th Cir.2010); Mora, 550 F.3d at any admissible alien who “has unlaw- been 237-38; Ramirez-Canales v. Mukasey, fully in the present United States for one (6th Cir.2008); 517 F.3d year more, Mortera- again or and who seeks admis- it making violations such years of the date of within sion have left the removal from the difficult for individuals who departure alien’s U.S.C. such committing after viola- States.”5 United States 1182(a)(9)(B)(i)(II). BIA aliens The held lawfully § tions admitted thereafter.” provision omitted). under this are inadmissible (quotation who Id. un- ineligible of status The also that whenever BIA noted Con- of a grant Act absent the the LIFE der eligibility adjust- gress has “extended Lemus-Losa, 24 I. & N. Dec.

waiver. See aliens, it has ment of status to inadmissible at 378. unambiguously.” done Id. 378. so in sup- reasons The BIA offered several Congress support, the BIA observed had Notably, interpretation. of its port of inadmissi- expressly provided waiver specific inadmissi- distinguished BIA 1182(a)(9)(B) § bility for aliens (B)(i)(II) (a)(9) § 1182 provisions of bility seeking adjustment of status inadmissibility pro- general the more Adjustment and Central Nicaraguan 1182(a)(6)(A)(i). at 378. It §of Id. vision Act, 105-100, Pub.L. No. American Relief general conclusion that the its reaffirmed (1997),and Haitian 111 Stat. 2193 Ref- 1182(a)(6)(A)© ren- would provisions Act, Immigration Fairness Pub.L. ugee nullity, Act a but it conclud- the LIFE der (1992). 105-277, 112 No. Stat. 2681-538 inadmissibility provi- ed Lemus-Losa, N. at 378 n. 24 I. & Dec. & 1182(a)(9)(B)(i)(II) §of would not sions Rather, an absurd result. Id. lead to such appeals two circuit courts have explained unlike BIA reviewed the BIA’s decision Lemus- 1182(a)(6)(A)©, punishes simply which results. The opposite Losa have reached country without in- those who enter to be am- Tenth Circuit found statute ten-year bar spection, upheld biguous interpreta- the BIA’s aliens who “punishes statutory as reasonable. tion of the scheme ... having previous- after seek admission Herrera-Castillo, A See ly period of unlawful status.” accrued later, Circuit con- few weeks the Seventh BIA con- Consequently, the Id. at 379. It observed that sidered the same issue. interpretation consistent was cluded its 1182(a)(9)(C)(i)(I),6 [1182(a)(9) provision at issue purpose ] the “overall with 1182(a)(9)(B)(i)(II)7 Briones, compound consequences of to adverse being is inad- "Departure" any ed States without admitted has read to include 5. been Lemus-Losa, 24 I. Dec. missible. departure, & N. at (ii) (i) 376-77, apply Exception shall not to an appear not to chal- Clause and Cheruku does seeking years than alien admission more lenge "departure.” In construction of BIA's departure fact, date last after the of alien's does contest inadmissi- not if, prior to the alien’s from the United Stales provision bility this at all. place outside reembarkation at attempt or to be readmitted from States provides: 6. This section Secretary contiguous territory, of foreign (i) who— general Any alien In Security has consented to Homeland (I) unlawfully present in the Unit- been has reapplying alien’s for admission. aggregate period of ed for an more States 1182(a)(9)(C)(i). § 8 U.S.C. year, than or provides: section 7.This (II) removed under sec- been ordered (other title, (i) 1225(b)(1) general Any than an alien 1229a of alien of this section tion residence) law, permanent title, lawfully admitted for any provision of and or other attempts who— or to reenter Unit- who enters anee, 1182(a)(9)(B)(i)(II) by sojourn § an initial triggered “both are distinguish- is 1182(a)(9)(C)(i)(I), § unlawful,” able from that was but and should United States 1182(a)(6)(A)®, § read (C)(i)(I) analogously to applies enter[ aliens “who ] implicitly which the BIA reads as being reenter attempt[ or the United States ] by waived LIFE Relying Act.9 on Le- (B)(i)(II) admitted,” being without while mus-Losa, that, by applying she stresses applies again to aliens “who admis- seek[ ] being granted for and parole, years depar- sion of the within ten alien’s she willing play “demonstrated [she] from ture or removal the United States.” by rules.” The Seventh Circuit’s view Lemus-Losa, F.3d at 757 (quotations regarding harsher treatment for those who omitted). emphasis Consequently, not play do the rules has considerable 1182(a)(9)(B)(i)(II) view, § its should be appeal and were we not constrained 1182(a)(6)(A)® § analogously treated might agree. Chevron we principles But “if ‘seeking because someone is admission’ require of deference a different result. to the United States on that occa- second The BIA reasonably gen- concluded the sion and has thus he demonstrated that eral inadmissibility provision play rules, willing by the he is no differ- 1182(a)(6)(A)© distinguishable ent from the who is physically pres- alien specific the more provision ent in the inspec- United States ‘without 1182(a)(9)(B)(i)(II). Lemus-Losa, 24 I. apply tion’ but who is entitled to for LIFE N. & Dec. 378. Unlike the bar to Lemus-Losa, Act relief.” 576 F.3d at admissibility 1182(a)(6)(A)©, §in applica- Accordingly, it held the BIA erred because ten-year tion of the bar not does render it pay “did not sufficient heed the differ- the LIFE Act a nullity. Id. group (B)(i)(II), ence between ... 1182(a)(6)(A)© by § aliens barred simply (C)(i)(I),” petition for re- they unlawfully because present is not view, and remanded the case to the BIA with coextensive group smaller proceedings.8 further Id. aliens barred under they period because accrue a of unlawful presence, depart, subsequently return urges us to adopt seeking lawful years admission within ten that, position Seventh Circuit’s bal- departure. of the interpretation An up- (I) 755-56, unlawfully present was appear the United applied it does to have period States for days than explicitly that framework. It neither found year, but less voluntarily departed than 1 ambiguous, the statute to be explicitly nor (whether pursuant the United States or not interpretation held the BIA's of the statute to 1254a(e) title) prior to section of this to the be unreasonable. proceedings commencement of under sec- 1225(b)(1) tion this title section 1229a appears 9. Cheruku contend in the alterna- title, again of this seeks admission tive that distinguishable Lemus-Losa is be- years within 3 of the date of such alien’s cause, Lemus-Losa, petitioner unlike the removal, departure or or departed who the United States and returned (II) present has unlawfully been in the through illegal crossing, an border more, year United States for one or duly a parole traveled on issued advanced again years who seeks within admission seeking before admission into the United of the departure date of such alien’s or argument unavailing. States. This Re- States, removal from the United is inadmis- gardless departure the of circumstances of (foot- 1182(a)(9)(B)(i)(II) § sible. 8 U.S.C. return, petitioners both are inadmissible omitted). note 1182(a)(9)(B)(i)(II). § under U.S.C. Although the Seventh noted Circuit Chevron Lemus-Losa, analysis, controlled its (6)(A)(i) 1182(a) ten-year bar, would an alien with a one- § bar der the holding the “ year presence a in the presence qualify period ‘both of unlawful unlawful make eligible ad be disqualifying a condition for U.S. would not consular ing and ” Herrera-Castillo, status,’ inspection at all the during of admission and justment Briones, 24 I. N. without a of (quoting applicable period & bar waiver at 1007 Lemus-Losa, BIA, by 24 I. & As 362); inadmissibility. explained the Dec. at see also 1182(a)(9), § 378, including but the same cannot the of provisions N. Dec. 1182(a)(9)(B)(i)(II). Thus, bar, no ten-year were intended deter said for presence implicit required give effect aliens who had accrued unlawful waiver BIA’s left the United States from later of the statute. Under then words Lemus-Losa, interplay 24 I. & seeking of the between admission. interpretation Act, the LIFE prohi LIFE N. Dec. at 379. But Act still ten-year bar straightforward permits eligible on alien departure bition period seeking pres- who has accrued unlawful rule with which aliens or not comply displayed provided depart rule ence he she does of status must —a seeking those parole documents such as the United States before admis- Although sion. sometimes lead issued Cheruku. result, Congress provided harsh acknowledge inadmissible that aliens We by granting Attorney some relief Gen- 1182(a)(9)(C)(i)(I) attempt who inadmissibility eral discretion to waive being or reenter without admitted enter family unity in certain cir- accommodate culpable than those may be more 1182(a)(9)(B)(v). cumstances. 8 U.S.C. 1182(a)(9)(B)(i)(II) seeking who are ad- to the BIA’s We accord deference conclu- mission, but do not think this difference we language sion that “the and structure reasoning the BIA’s undermines statutes[,] along relevant with Con- specific are provisions are similar. Both gress’s specific waivers certain instanc- distinguished from admissibility bars to es,” Herrerar-Castillo, 573 F.3d at general provision the more IIRIRA’s goals, best effectuates Lemus- 1182(a)(6)(A)(i). Nor do we think Losa, 24 I. N. Dec. at as well as the & culpability in relative absolves difference purposes lifting LIFE Act’s remedial §by of all those barred pro- facilitating administrative burdens con- culpability or leads to inevitable physically present in the cessing aliens Congress implicitly intended clusion States, family promoting and of inadmissibility to waive for those aliens. Briones, 360-61; unity, 24 I. N. & Dec. may question policy we whether the While Lemus-Losa, 24 I. N. Dec. & at 378. interpreta- the BIA’s choices furthered interpre- Therefore we defer to the BIA’s wise, statutory tion of the scheme we the statutory tation of scheme. place remain mindful that “the to resist legislation touching unwise or cruel aliens B. Congress,

is the th[e] [c]ourt[s].” Shaughnessy, Harisiades v. 342 U.S. equi- also contends the DHS is (1952) 72 S.Ct. 96 L.Ed. 586 tably estopped denying admis- (Frankfurter, J., concurring). sion, alternative, BIA erred determining equitable relief interpretation the BIA’s retroactive We believe mitigate and was the harsh re- statutory scheme reasonable unavailable argument has Congress’s intent. See sult of this case. Neither consistent with Herrera-Castillo, at 1009. Un- merit. 573 F.3d

208 relief, contends pro “long the DHS nunc tunc has em [been] estopped denying be her ad authorities, should ployed by immigration she was deceived into mission because they based on what implied believe to be believing parole advanced would im statutory authority provide relief from against a later of in finding munize her immigration the harsh provisions of prevail, To admissibility. Cheruku must sympathetic laws in cases.” Gonza See that DHS made a misrepresen show Holder, v. 597 lez-Balderas F.3d 870 upon reasonably tation which she relied Cir.2010) (7th Gonzales, (citing Patel v. detriment, her that the DHS en (6th Cir.2005); F.3d Edwards gaged affirmative misconduct. See (2d INS, v. 308-09 Cir. Gen., (3d Att’y Mudric 2004)). generally But BIA has limited Cir.2006). Regardless of how Cheruku grant pro of orders to a nunc tunc few interpreted parole the advanced docu limited It appears circumstances. to have ment, clearly the words on the document per such retroactive relief only stated: mit the exercise discretion allow an If, 1, 1997, you April after were unlaw- admission, alien to reapply to apply the fully present the United States for law as it existed when the alien violated days applying more than 180 before laws, Ramirez-Canales, the immigration status, you may be found 517 F.3d at or to correct an error in 212(a)(9)(B)(i) inadmissible under section Edwards, proceedings, you Act when return to Unit- F.3d at 309. processing ed States to resume the your application. you If inad- found Here, the BIA concluded nunc pro tunc missible, you will qualify need to for a relief was unavailable based on its decision inadmissibility waiver of in order for Torres-Garcia, in In re 23 I. & N. Dec. your adjustment of status to 866, (BIA 2006). Torres-Garcia, approved. be the BIA held that because the statutory explicitly The document warned Cheruku 1182(a)(9) provisions of of the INA clear- by traveling on the advanced parole, ly delineate the limited conditions under she render herself inadmissible.10 which the DHS has grant the discretion to Accordingly, has she failed to demonstrate inadmissibility, waivers of grant of a de any misrepresentation or affirmative mis- specified by facto waiver not statute would conduct DHS. Cheruku was mistaken be with congressional inconsistent intent. concerning consequences departing Specifically, Id. 874-76. Torres-Garcia the United States pa- rejected the contention the waiver regrettable, role. While form cannot provision of C.F.R. 212.2 granted dis- equitable the basis of an estoppel claim. cretion to waive inadmissibility under 1182(a)(9)(C)(i).11 say

Nor can we the denial of ret Id. 876. This in- equitable roactive terpretation relief was in error. been affirmed circuits relief, Retroactive often referred to as that have considered the issue. Gon- See appears argue Cheruku also that the for us to conclude that travel on an advanced parole BIA should treat travel on an advanced parole should excused. ifas the travel never occurred. The advanced travel, parole clearly anticipates as well as noted, 1182(a)(9)(B) (C) As & were both possible admissibility effects an alien’s as a Congress added to the INA when enacted result of authority travel. Cheruku cites no IIRIRA. assertion, support of her and there nois basis

209 IV. zalez-Balderas, 869-71; Del F.3d at (2d 516 F.3d Mukasey, gado v. reasons, foregoing For we will af- DHS, Cir.2008); F.3d v. Gonzales the BIA and judgment deny firm the (9th Cir.2007). 1227, 1241-42 petition for review. not contend does Cheruku 212.2 authorize 8 C.F.R. regulations McKEE, Judge, concurring. Chief she con grant of a waiver. Nor does is Although agree I that Cheruku inad- any of tradi case falls within tend her adjustment of status under a missible for the BIA has categories for which tional interpretation strict U.S.C. Rather, she pro nunc tunc relief. granted explained by my as that the support without simply contends I colleagues, separately relief. write because the equitable BIA have exercised could not may equitable But court award as unjust result we must reach is it is “[a] the expressed relief in contravention of unreasonable.1 Edwards, Congress.” intent of software engi- Cheruku is educated (citing Pangilinan, 486 U.S. at 309 INS employed employer who and her neer is is 875, 883-85, 2210, 100 L.Ed.2d 108 S.Ct. to her trying help remain the United (1988)). noted, was found As 333). (A.R. 66, highly She is a States. 1182(a)(9)(B)(i)(II). inadmissible under who, professional to according skilled 1182(a)(9)(B)(i)(II)(iii) delineates Section “research, employer, engaged design, inadmissibility, and exceptions pro- and development] and software [of] 1182(a)(9)(B)(v) expressly sets forth medical, industrial, high tech grams may which the conditions under DHS scientific, financial applications, business inadmissibility, pertain which exclu waive leading] programmers sys- teams sively unity. is not family analysts projects,” tems and “devel- any statutory inad eligible for waiver to systems oping] directing] testing missibility applica since her than tion on her work status rather programming relies and documenta- procedures, family Accordingly, (A.R. 258). connection. any on has no criminal tion.” She Congress clearly delineated because record, nor can she characterized as the be Attorney in which the General situations violator” type “recidivist grant a waiver exercise discretion to ex- Congress appropriately that seeks section, inadmissibility under this country. this clude from 8 U.S.C. holding equitable BIA err in nunc did not 1182(a)(9)(C)(i). plain relief pro tune is foreclosed Moreover, this sug- record nothing language of the statute.12 See Gonzalez gests anything that Cheruku done (“The Balderas, 597 F.3d at 870 statute pay applicable than all taxes while other correct....”); ruling clear and the Board’s here, employed clearly has dem- she Ramirez, (rejecting n. 7 specialized in a highly onstrated skill field petitioner’s arguments without discussion country competitive needs be remedy remand should relief). (A.R. important nunc tunc in several industries. pro the BIA’s denial of Cheruku,” Reddy "Reddy ambiguity Shiree- that even if were reesha 12. We note there point, inter- on this we would find BIA’s both in their sha” as the IJ BIA stated pretation (A.R. 86). to be reasonable. respective We decisions. will petitioner by her last therefore refer According to 1-485 status name, Cheruku. application, petitioner’s name "Shi- full 263-69). addition, ruku, today Cheruku’s suggests In continued the result we reach country portend in this does not the wisdom of Charles Dickens’ presence condemna- short, any drain social resources. tion of the law that was uttered Mr. on suggests, affidavit she Bumble in Oliver Twist.2 employer’s as her exactly the kind of person appears to be majority correctly The that points out (A.R. United should welcome. States technically was placed on notice 258). that her status could be in jeopardy country not enter the if she Cheruku did United States left because of Rather, warning on a illegally. parole she arrived visitor’s her advanced docu- visa, country warning and then re-entered the ment. That states: pursuant grant pa- to a advanced NOTICE TO APPLICANT: Presenta- Although overstayed origi- role. she her tion of permit you this authorization will visa, nal later made a she concerted effort your to application adjust- resume “play by by applying to the rules” upon your ment of status return to the parole advanced with the assistance your adjustment United States. If ap- counsel. denied, plication you is subject will be to proceedings removal section quite likely it Ironically, seems that Che- 235(b)(1) or 240 of the If April Act. after only country in place ruku left the the first 1, 1997, you unlawfully present were gave because the States per- the United States for more than 180 to return. The mission Government now days applying before seeks to remove her because she left the status, you for, received, may found country she inadmissible applied after 212(a)(9)(B)® section of the Act document from the Government explicit- you when to ly her to return allowing Immigra- leave. As the United States to quite correctly observed, your resume the Judge processing applica- tion you inadmissible, tion. parole document If are found given you she was document,” schizophrenic “at will to quality was best need for a waiver of inad- says missibility because on one hand we’re going your adjustment “[i]t order for you something, allow do but we application approved. then status to be might you our mind change and not allow I am not at all sure that someone who is it or something do like that. You can born the United States and is fluent in always leave, you might but not be able to English could comprehend warning. I (A.R. 76). get back.” am far certain that less someone in Cheru- Yet, my colleagues explain, the stat- ku’s situation language could. The is con- says says job ute what it and it fusing is our ambiguous as the Immigration to rewrite un- Congress Judge what has decreed explained. phrase: “presenta- application less literal of the statute tion of permit you this authorization will patently would “lead to a your absurd result application,” resume (emphasis added), that no in- legislature rational could have leads one to believe Att’y tended.” Barrios v. indisputably Gen. 399 F.3d should pick have been able (3d Cir.2005). Although I do not think up where she left off with her general case here and therefore of status once returned she do not majority opinion, However, dissent from the I the United States. warning states, nevertheless think that as applied “you then Che- be found inadmissi- despicable 2. Mr. quote expressive Bumble character in actual far more and irrev- Oliver supposes Twist who said: "if the law erent. that, then the law is [absurd].” Bumble’s added). in to rently proceedings removal ensure implies The latter (emphasis ble” they highest priori- not constitute our may be admissible that that statute, as just equally only hope at I but Id. can that Che- unknown ties.” some may very well be found that she review that implies ruku will be afforded such and precedes “will” The fact that to her. admissible. the result will be favorable easily person to mislead “may” could in My optimism regard that is but- adjustment of status believe his/her by a by tressed memorandum issued U.S. affected a de- adversely not be would Immigration and Customs Enforcement compli- is further The situation parture. proving guidance to law enforce- “ICE” no explana- that there is by the fact cated personnel attorneys and exer- ment 235(b)(1) or 240 of the of what section tion removing of aliens. cise discretion See 212(a)(9)(B)© mean. Nor is Act or section Exercising Regarding Pros- Memorandum any about how these information there ecutorial Discretion Consistent with the impact person’s adjust- could statutes Immigration Enforcement Priorities Civil As a matter of application. of status ment (June 1, 2011), Agency of available course, law, is, charged of with http://www.ice.gov/doclib/secure-com hyper the convoluted and understanding munities/pdf/prosecutorial-discretion- re- on the form she language technical memo.pdf. discretionary Some of fac- ceived, proclamation Mr. Bumble’s but tors that ICE will consider include the reality of situation. summarizes thereof, history criminal or lack person’s Nevertheless, I am troubled although likely person whether otherwise today, cautiously op- I am by our decision granted temporary permanent status our not fore- timistic that decision removal, and per- or other relief from ability nor to remain here close Cheruku’s length presence in the son’s country her talents. On this deprive certainly Although it is not our States. 18, 2011, Department August agency to tell administrative how place Security a letter and ac- Homeland issued I do note that it apply policies, its it announcing that companying guidelines qualify for a appears that Cheruku would focus limited to better its resources plans under the favorable exercise discretion (and appropri- a more deporting on select given policy her lack of criminal back- new ate) aliens. DHS group of See Letter employer’s desire that she ground, Im- Policy Shift In on Regarding Senators as a working engineer, continue software 2011), (Aug. Enforcement migration her residence the United States http://www.ilw.com/ available years. the last immigrationdaily/news/2011,0819-pr early Supreme As Court osecutorialdiscretiompdf. Cheruku is immigrants bring value that discussed the in the class of aliens Govern- work country’s force. Court will be focused ment’s efforts to the wealth explained, addition “[i]n Rather, will concentrate its DHS now on. they bring, bring some of them still which security “enhancing border resources labor we largely which need removing criminal identifying soil, railroads, and our our devel- till build aliens, pose public a threat those who country the latent resources of op security, repeat immi- safety and national manufactures, minerals, agri- its its its and other individuals gration law violators Mayor City Henderson culture.” part at As for removal.” Id. prioritized York, 259, 270, 23 L.Ed. New 92 U.S. strategy, has initiated an of this new DHS (1875). course, changed Of times have interagency working group “execute building then. The time greatly individuals cur- since case-by-case review of all and gone has come and the need railroads labor now dwarfed

for manual expertise the scientific and

need for

technological disciplines.

Nevertheless, original prem- the Court’s today just years as true as it was 130

ise is Indeed,

ago. given “global the rise of the interdependent nature of “na-

village,” economies, and global competi-

tional” marketplace, high- the need for

tion in

ly expertise perhaps even specialized

greater now than the need for manual Court

labor was when the made its obser-

vation Henderson. of law

Given finite resources en- officials, immigration

forcement and as dockets,

well overburdened my hope Department

it is that the of Jus- may yet

tice decide Cheruku can re-

main in the States United and continue to contributing

function as a member of this

society.

Jeoffrey BURTCH, Chapter L.

Trustee, Factory stores, 2-U

Inc., al., Appellant et FACTORS, INC.; Capital

MILBERG

Factors, Inc.; Group/Com- the CIT Services, Inc.;

mercial GMAC Com- Finance, LLC;

mercial HSBC Busi- (USA), Inc.;

ness Credit Rosenthal &

Rosenthal, Inc.; Sterling Factors Cor-

poration; Fargo Century, Wells Inc.

No. 10-2818. States Court of Appeals,

Third Circuit.

Argued April

Filed: Oct.

Case Details

Case Name: CHERUKU v. Attorney General of US

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 22, 2011

Citation: 662 F.3d 198

Docket Number: 10-1176

Court Abbreviation: 3rd Cir.