Ramirez v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REYNALDO ANGELES RAMIREZ; 

CATALINA SOLORZANO ARZATE,

Petitioners,

v.  No. 09-1629

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: May 13, 2010

Decided: June 22, 2010

Before NIEMEYER, GREGORY, and SHEDD,

Circuit Judges.

Petition for review denied by published opinion. Judge Shedd

wrote the opinion, in which Judge Niemeyer and Judge Greg-

ory joined.

COUNSEL

ARGUED: Carolyn Ann Killea, DEUTSCH KILLEA &

EAPEN, Washington, D.C., for Petitioners. Liza Murcia,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

2 RAMIREZ v. HOLDER

ton, D.C., for Respondent. ON BRIEF: Morris H. Deutsch,

DEUTSCH KILLEA & EAPEN, Washington, D.C., for Peti-

tioners. Tony West, Assistant Attorney General, Civil Divi-

sion, David V. Bernal, Assistant Director, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

OPINION

SHEDD, Circuit Judge:

Reynaldo Angeles Ramirez and his wife Catalina Solor-

zano Arzate, who is a derivative applicant, petition for review

of the Board of Immigration Appeals’ decision dismissing

their appeal of an immigration judge’s denial of Ramirez’s

application for adjustment of status under 8 U.S.C. § 1255(i).1

We deny the petition.

I

Ramirez and Arzate are Mexican citizens. Ramirez entered

the United States without inspection on at least three occa-

sions. He first entered the country in September 1995, and he

departed in December 1996. He next entered the country in

May 1997, and he departed in April 2000. He again entered

the country in August 2000.

In April 2001, Ramirez’s employer, L.F. Jennings, Inc.,

began the process of seeking adjustment of status for him by

filing a labor certification on his behalf. As we recently

explained:

Aliens who seek to adjust their status based on

employment . . . are . . . required to demonstrate that

1

We hereafter refer to the immigration judge and the Board as "IJ" and

"BIA," respectively.

RAMIREZ v. HOLDER 3

they are eligible for an employment-based visa and

that an employment-based visa is immediately avail-

able. To do so requires the prospective immigrant to

find a job with an employer willing to sponsor him

through the time-consuming application process for

labor certification and issuance of an immigrant visa.

The prospective employer first must apply on behalf

of the alien to the Department of Labor ("DOL") for

a Labor Certification. The DOL’s issuance of a

Labor Certification indicates that the DOL is satis-

fied that (1) sufficient United States workers are not

able, willing, qualified, and available for a particular

job; and (2) employment of a particular alien will not

adversely [affect] the wages and working conditions

of United States workers similarly employed. With

a valid Labor Certification in hand, the prospective

employer then submits a petition (technically speak-

ing, a Form I-140 Immigrant Visa Petition for Alien

Worker) to the USCIS [United States Citizenship

and Immigration Services] for an immigrant work

visa. At that point, the alien . . . can apply to adjust

his status by filing a Form I-485.

Lee v. USCIS, 592 F.3d 612, 616 (4th Cir. 2010) (citations

omitted and internal punctuation altered). If the USCIS grants

the application to adjust status, "then the alien is issued a

‘Green Card’ reflecting his right to live and work in the

United States permanently (assuming he does nothing to

cause his removal)." Id. at 616 n.2.

Ramirez’s labor certification was approved. L.F. Jennings

Inc. thereafter filed an I-140 visa petition on Ramirez’s

behalf, and he filed an I-485 application to adjust his status

based on the I-140 petition. Although the I-140 petition was

subsequently approved, the I-485 application was denied

because Ramirez was deemed inadmissible under 8 U.S.C.

§ 1182(a)(9)(C)(i)(I) for aggregate unlawful presence in the

United States in excess of one year.

4 RAMIREZ v. HOLDER

Ramirez and Arzate were then issued Notices to Appear

charging them with being removable under § 1182(a)(6)(A)(i)

as aliens present in the United States without being admitted

or paroled. In response, they conceded removability but

argued that Ramirez is entitled to adjustment of status under

§ 1255(i) based on the approved labor certification and Form

I-140 petition.

The IJ denied Ramirez’s application for adjustment of sta-

tus, ruling first that he is ineligible under § 1255(i). The IJ

based this ruling on the BIA’s precedential decision of In re

Briones, 24 I. & N. Dec. 355 (BIA 2007). In Briones, the BIA

held that aliens (such as Ramirez) who are inadmissible under

§ 1182(a)(9)(C)(i)(I) because they entered the United States

unlawfully after accruing more than a year of prior unlawful

presence are foreclosed from adjusting their status under

§ 1255(i) on the basis of approved immigrant visa applica-

tions. The IJ also denied Ramirez’s alternative request for dis-

cretionary nunc pro tunc relief.2 The IJ concluded that

Ramirez’s case "does not fall into any of the categories in

which the Board has applied nunc pro tunc relief," and he

denied the application for such relief "based on the applicable

law and in the exercise of discretion." J.A. 64. Because

Ramirez was not entitled to relief, the IJ also denied Arzate’s

application for derivative relief.

Thereafter, the BIA dismissed Ramirez’s and Arzate’s

appeal of the IJ decision and order. In doing so, the BIA con-

cluded that the IJ had properly followed Briones, and it

rejected Ramirez’s argument that the case should be overruled.3

2

"A nunc pro tunc order is an order that has retroactive legal effect."

Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005). Ramirez contends

that his application for adjustment of status should be considered as of

November 1996, before he first departed the United States.

3

Ramirez conceded before the IJ that Briones applies to his case, but he

urged the IJ to follow contrary rulings by the Ninth and Tenth Circuits that

predate Briones. See Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006);

Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. 2006). The IJ

rejected this argument. On appeal, the BIA noted that in Briones it had

"specifically considered" the Ninth and Tenth Circuit opinions "but found

their interpretations to be unpersuasive." J.A. 3.

RAMIREZ v. HOLDER 5

The BIA further declined to grant Ramirez nunc pro tunc

relief, finding that the IJ had properly resolved the issue. This

petition for review followed.

II

Ramirez and Arzate primarily challenge the BIA’s determi-

nation, based on Briones, that Ramirez is ineligible for

§ 1255(i) adjustment of status based on his inadmissibility

under § 1182(a)(9)(C)(i)(I). This is purely a legal question

involving the BIA’s interpretation of immigration statutes.

Therefore, our review is subject to the principles of deference

articulated in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). See Midi v.

Holder, 566 F.3d 132, 136 (4th Cir.), cert. denied, 130 S. Ct.

805 (2009). Under this standard, we initially examine the stat-

utory language, and if Congress has spoken clearly on the pre-

cise question at issue, the statutory language controls;

however, if the statute is silent or ambiguous, we defer to the

BIA’s interpretation if it is reasonable. Id. at 136-37.

Ramirez and Arzate argue that they should prevail under

both prongs of this analysis. Thus, they contend that under the

plain language of § 1255(i), Ramirez is entitled to adjust his

status. Alternatively, they contend that even if the statutory

language is ambiguous, the BIA’s decision in Briones is

unreasonable.

Since Briones was decided, two federal circuit courts have

considered the precise issue before us. See Mora v. Mukasey,

550 F.3d 231 (2d Cir. 2008); Ramirez-Canales v. Mukasey,

517 F.3d 904 (6th Cir. 2008). In both cases, the courts con-

cluded that the pertinent statutory language is ambiguous and

that the BIA’s interpretation in Briones is reasonable and enti-

tled to deference. We agree.

A.

We begin by examining the statutory language. In doing so,

we note that the two statutes, §§ 1182(a) and 1255(i), "serve

6 RAMIREZ v. HOLDER

conflicting goals. Section 1182(a) lists a number of bases that

render an alien inadmissible to this country. Section 1255(i)

allows aliens who entered without inspection but who have

access to a visa . . . to legalize their status without leaving the

country. . . ." Ramirez-Canales, 517 F.3d at 907.

Section 1182(a)(6)(A)(i) provides: "An alien present in the

United States without being admitted or paroled, or who

arrives in the United States at any time or place other than as

designated by the Attorney General, is inadmissible." Having

a more narrow reach, § 1182(a)(9)(C)(i)(I) provides that an

alien who "has been unlawfully present in the United States

for an aggregate period of more than 1 year" and "who enters

or attempts to reenter the United States without being admit-

ted is inadmissible."4 There is no dispute that Ramirez is inad-

missible under both of these statutes.

Ramirez is seeking adjustment of status pursuant to

§ 1255(i), which provides (in subsection (1)(A)(i)) that an

alien who is physically present in the United States and who

"entered the United States without inspection" may apply to

the Attorney General for the adjustment of his or her status to

that of an alien lawfully admitted for permanent residence.

However, § 1255(i)(2)(A) permits the Attorney General to

adjust the alien’s status only if (inter alia) the alien "is admis-

sible to the United States for permanent residence."

A plain application of these statutes creates a problem: "By

its express language, § 1255(i)(1)(A)(i) applies to aliens who

‘entered the United States without inspection.’ If all aliens

unlawfully present are inadmissible as a result of § 1182(a),

4

Section 1182(a)(9)(C), which was enacted pursuant to the Illegal Immi-

gration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),

was intended "to single out recidivist immigration violators and make it

more difficult for them to be admitted to the United States after having

departed." Briones, 24 I. & N. Dec. at 358. The statutory problem now

before us did not exist prior to IIRIRA. See Mora, 550 F.3d at 235.

RAMIREZ v. HOLDER 7

and admissibility is a condition for § 1255(i)(2)(A) relief, then

no one would ever be eligible under § 1255(i)(2)(A)."

Ramirez-Canales, 517 F.3d at 908. Stated differently, as the

BIA noted in Briones, a plain reading of the statutes makes

entry without inspection "both a qualifying and disqualifying

condition for adjustment of status." 24 I. & N. Dec. at 362.

It is a "settled rule that we must, if possible, construe a stat-

ute to give every word some operative effect." Cooper Indus.,

Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167 (2004). However,

as the Second Circuit explained:

[A] literal reading of section 1255(i) threatens to ren-

der the statute a nullity, and so it is necessary to read

the statute as implicitly waiving unlawful presence

as a ground for inadmissibility in certain circum-

stances. But whether it should be read as waiving

inadmissibility only under the general section

1182(a)(6)(A)(i), or whether it should read as waiv-

ing inadmissibility under the more specific section

1182(a)(9)(C)(i)(I) as well, cannot be inferred from

the text of the immigration laws alone.

Mora, 550 F.3d at 237-38 (citation omitted).

"Not wanting to read § 1255(i) as a nullity but unable to

infer from the statutory language the way in which § 1255(i)

implicitly waives unlawful presence as a ground for inadmis-

sibility," Herrera-Castillo v. Holder, 573 F.3d 1004, 1008

(10th Cir. 2009), we find the statute is ambiguous. See Mora,

550 F.3d at 237 ("The statutory language at issue here is cer-

tainly ambiguous."); Ramirez-Canales, 517 F.3d at 908 (find-

ing that "the terms of these statutes are amenable to multiple

interpretations"). Accordingly, we proceed to the next step of

the Chevron analysis to determine whether the BIA’s interpre-

tation in Briones is reasonable.5

5

We note that "[a] petitioner asking the court to find a BIA interpreta-

tion impermissible faces a substantial burden, as judicial deference ‘is

8 RAMIREZ v. HOLDER

B.

As noted, the BIA held in Briones that aliens like Ramirez

who are inadmissible under § 1182(a)(9)(C)(i)(I) because they

entered the United States unlawfully after accruing more than

a year of prior unlawful presence are foreclosed from adjust-

ing their status under § 1255(i) on the basis of approved

immigrant visa applications. In reaching this decision, the

BIA interpreted § 1255(i) to allow aliens covered only by the

more general provision of § 1182(a)(6)(A)(i) to apply for

adjustment of status. The BIA offered three main reasons to

support this interpretation.

First, the BIA noted that the purpose of § 1182(a)(9)(C)

generally "was to single out recidivist immigration violators

and make it more difficult for them to be admitted to the

United States after having departed." Briones, 24 I. & N. Dec.

at 358. The BIA pointed to the fact that aliens covered by

§ 1182(a)(9)(C) are within a subset of those covered by

§ 1182(a)(6)(A)(i), and this fact suggests that Congress went

out of its way to distinguish between first-time and repeat

offenders. The BIA viewed the inclusion of § 1182(a)(9)(C),

among other immigration recidivist provisions, as "reflect[-

ing] a clear congressional judgment that . . . repeat offenses

are a matter of special concern and that recidivist immigration

violators are more culpable . . . than first-time offenders." 24

I. & N. Dec. at 371.

Second, the BIA observed that the legislative history indi-

cated Congress’ concern with recidivists, and it noted that

even in the pre-IIRIRA regime, although no alien who would

especially appropriate in the immigration context where officials exercise

especially sensitive political functions that implicate questions of foreign

relations.’" Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.), cert. denied,

129 S. Ct. 595 (2008) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999)).

RAMIREZ v. HOLDER 9

now be inadmissible under § 1182(a)(6)(A)(i) would have

been formerly excludable, certain aliens who reentered the

country after having been deported were ineligible for adjust-

ment of status under § 1255(i). The BIA recognized that the

pre-IIRIRA class that would have been excluded now falls

within § 1182(a)(9)(C)(i)(II) rather than § 1182(a)(9)(C)(i)(I),

but it nonetheless concluded that if § 1182(a)’s "savings

clause" (which states "except as otherwise provided in this

Act") was applied generally to § 1182(a)(9)(C), such an appli-

cation to § 1182(a)(9)(C)(i)(II) in particular would have made

adjustment of status available to a large class of aliens who

never were entitled to it. The BIA called this "an unwarranted

leap" to presume that Congress intended such a result. 24 I.

& N. Dec. at 367. In light of this, the BIA concluded that

§ 1182(a)(9)(C) generally "define[d] a unitary ground of inad-

missibility that may be predicated on various types of con-

duct," and thus indicated that §§ 1182(a)(9)(C)(i)(I)

1182(a)(9)(C)(i)(II) should not be treated differently for pur-

poses of applying § 1255(i). 24 I. & N. Dec. at 367.

Finally, the BIA noted that when Congress has chosen to

extend eligibility for adjustment of status to inadmissible

aliens (i.e., where Congress has "otherwise provided" within

the meaning of the savings clause), it has generally done so

"unambiguously, either by negating certain grounds of inad-

missibility outright or by providing for discretionary waivers

of inadmissibility, or both." 24 I. & N. Dec. at 367. The BIA

provided several examples of this, specifically noting Con-

gress’ enactment of special remedial legislation for adjust-

ment of status relief to be available to certain Cuban, Central

American, and Haitian aliens who were unlawfully present in

the United States, as well as the passage of amendments that

explicitly gave the Attorney General discretion to waive

§ 1182(a)(9)(C) as a ground for inadmissibility with regard to

those aliens. 24 I. & N. Dec. at 367-68. The BIA concluded

that this demonstrates "that when Congress wants to make

adjustment of status available to aliens despite their inadmis-

sibility under [§ 1182(a)(9)(C)], it knows how to do so." 24

10 RAMIREZ v. HOLDER

I. & N. Dec. at 368. The BIA also observed that when Con-

gress passed the amendments permitting this discretionary

waiver of inadmissibility, it also modified § 1255(i) to extend

the filing deadline for qualifying visa petitions, but it did not

remove § 1182(a)(9)(C) as an obstacle to adjustment of status

under § 1255(i); thus, Congress intended to foreclose aliens

who repeatedly violate the immigration laws from adjusting

their status. 24 I. & N. Dec. at 368.

Like the Second and Sixth Circuits, we are unpersuaded

that the BIA’s Briones decision — which is based on the lan-

guage, structure, and history of the relevant statutes — is

unreasonable. See Mora, 550 F.3d at 239 ("[W]e do not think

it is unreasonable for the agency to interpret section 1255(i)

as extending relief to aliens who are inadmissible under sec-

tion 1182(a)(6)(A)(i) but not to those who are inadmissible

also under section 1182(a)(9)(C)(i)(I)."); Ramirez-Canales,

517 F.3d at 910 ("We cannot say that the Board’s conclusions

were unreasonable in light of its careful and well-supported

arguments."); see also Lemus-Losa v. Holder, 576 F.3d 752,

760 (7th Cir. 2009) ("If the question before us were the same

as the one that our sister circuits have confronted — namely,

the relation between § (C)(i)(I) and § 1255(i) — we would

agree that there is sufficient ambiguity in these provisions to

require Chevron deference, and we would find that the BIA

has drawn a rational line.").6 Therefore, under the Chevron

analysis, we must defer to the BIA’s interpretation of

6

In addition to the Second and Sixth Circuits, we note that the Fifth Cir-

cuit accorded Chevron deference to a BIA decision that predated, but is

consistent with, Briones, concluding that the BIA "was not acting arbitrar-

ily when it ruled that Mortera, who is inadmissible under section

1182(a)(9)(C)(i)(I), is not eligible to adjust his status under section

1255(i)(1)(A)(i)." Mortera-Cruz v. Gonzales, 409 F.3d 246, 256 (5th Cir.

2005). The court reasoned: "In our view, the policy developed by the

executive branch, as expressed in the BIA’s opinion, is a rational approach

to reconciling the apparent tension in the statutes and in a reasonable way

implements the intent of Congress that some, but not all, illegal aliens may

adjust their status to that of a lawful permanent resident." Id.

RAMIREZ v. HOLDER 11

§§ 1182(a)(9)(C)(i)(I) and 1255(i). Consequently, because

Ramirez is inadmissible under § 1182(a)(9)(C)(i)(I), he can-

not adjust his status under § 1255(i).7

III

Based on the foregoing, we deny the petition for review.

PETITION DENIED

7

As an alternative argument, Ramirez and Arzate request us to use our

"equitable powers to reverse" the BIA’s denial of nunc pro tunc relief to

Ramirez and to remand this case to the BIA for "serious consideration" of

such relief. Brief of Petitioners, at 34. We have carefully considered this

argument and find it to be without merit.