Lead Opinion
ORDER; Dissent by Judge GOULD.
ORDER
The government’s Motion to Reconsider filed on February 7, 2005, is hereby DE
SO ORDERED.
Dissenting Opinion
dissenting from the order denying motion to reconsider:
I would follow the holding of the Tenth Circuit in Berrum-Garcia v. Comfort,
The majority offers two reasons for looking to 8 C.F.R. § 212.2 instead of INA § 212(a)(9)(C)(ii) in assessing whether Perez-Gonzalez’s application for an 1-212 waiver was valid. The majority first asserts that it is necessary for us to regard 8 C.F.R. § 212.2 as controlling because this is the only way we can reconcile alleged conflicts between INA § 245(i) and INA § 212. See
I disagree because there is no necessary conflict between INA § 245(i) and § 212(a)(9)(C), which is the subsection of § 212 that specifically covers “Aliens previously removed,” like Perez-Gonzalez, who have “crossed the border and are currently living in the country without lawful status.”
A straightforward application of these two provisions, which can rationally be read together without conflict, leads to the
In my view, the conflict we must address is that between INA § 212 and 8 C.F.R. § 212.2, when the regulation is given the unduly broad interpretation urged by the majority. It is well-settled that a “regulation cannot be interpreted independently of the statute under which i[t] was promulgated,” and that “[wjhile regulations may impose additional or more specific requirements, they cannot eliminate statutory requirements.” Hunsaker v. Contra Costa County,
When one considers that INA § 212(a)(9)(C)(ii) states that aliens previously removed or deported must apply for waivers from inadmissibility prior to “reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory,” the incongruity of interpreting 8 C.F.R. § 212.2 to permit such aliens to obtain a waiver under more lax procedures is apparent. The majority erroneously treats 8 C.F.R. § 212.2 as an independent authority for 1-212 waivers, separate from INA § 212 itself, see
In Berrum-Garcia, the Tenth Circuit reconciled 8 C.F.R. § 212.2 with INA § 212 by asserting that the regulation was ambiguous because it “only implies that some aliens illegally present in the United States may apply for an 1-212 waiver without leaving the country; it does not explicitly extend that privilege to aliens who have illegally reentered the country after a prior deportation or removal.”
I conclude that the Tenth Circuit’s narrowing construction of the regulation is reasonable, and prefer its moderate approach to the more drastic alternative of invalidating the regulation because it conflicts with the plain language of the statute it is meant to implement. See Portland Audubon Soc’y v. Endangered Species Comm.,
The Tenth Circuit’s approach is appropriate because the government never challenged 8 C.F.R. § 212.2’s validity, but rather argued that the majority had erred in interpreting the regulation too broadly. The government pointed out that the regulation predates IIRIRA and the enactment of INA § 212(a)(9)(C), and asserted that the majority’s reading of the regulation
The majority also suggests that its broad reading of 8 C.F.R. § 212.2 is necessary to give weight to Congress’ goal in enacting INA § 245(i) of allowing “spouses, children, parents and siblings of permanent residents or U.S. citizens [to] be able to adjust their status in the Ú.S. and avoid needless separation from their loved ones.”
In considering whether a regulation is permissible in light of the statute it implements, “we look not only at the precise statutory section in question, but analyze the provision in the context of the governing statute as a whole, presuming congressional intent to create a ‘symmetrical and coherent regulatory scheme.’ ” Morales-Izquierdo v. Ashcroft,
Berrum-Garcia approach enables us to read INA § 212 and 8 C.F.R. § 212.2 in a way that reasonably accommodates both of Congress’ policy goals, not just the family unity goal championed by the majority. INA § 212(a)(9)(C) provides that aliens previously removed or deported are inadmissible, thereby paving the way for the government expeditiously to remove them, but at the same time, § 212(a)(9)(C)(ii) sets forth procedures permitting such
I respectfully dissent.
Notes
. INA § 212(a)(9)(C)(ii) states that § 212(a)(9)(C)(i)'s life-time inadmissibility provision, which covers previously removed or deported aliens:
shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission.
. Although the requirements in § 212(a)(9)(C)(ii) are stringent, Congress designed them to be commensurate with the degree of the immigration offense committed by the aliens subject to inadmissibility under subsection (C), which covers the most serious grounds for inadmissibility in INA § 212(a)(9). In contrast, lesser offenders who fall within § 212(a)(9)(A) because they were deported immediately upon their arrival to the United States can apply for the same waiver under § 212 (a) (9) (A) (iii) without having to wait ten years, but even they have to apply for the waiver "prior to [their] reembar-kation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory.”