The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 10-2737
______
MARIA C. SARANGO
AKA Maria Figueroa
AKA Maria Sarango-Narvaez
AKA Maria Torres
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Maria Sarango
aka Maria Figueroa,
Petitioner
______
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Annie S. Garcy
(No. A079-697-068)
______
Submitted Under Third Circuit L.A.R. 34.1(a)
June 24, 2011
Before: BARRY, AMBRO, and VAN ANTWERPEN,
Circuit Judges
(Filed June 30, 2011 )
Heidi J. Meyers, Esq.
Law Office of Heidi J. Meyers
233 Broadway, Suite 801
New York, NY 10279
Counsel for Petitioner
Tony West, Esq.
John C. Cunningham, Esq.
Holly M. Smith, Esq.
U.S. Department of Justice, Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
______
OPINION OF THE COURT
______
VAN ANTWERPEN, Circuit Judge.
Maria Sarango petitions for review of a Board of
Immigration Appeals decision dismissing her appeal. The
BIA rejected Sarango‟s request for retroactive – “nunc pro
2
tunc” – consent to reapply for admission to the United States
under 8 U.S.C. § 1182(a)(9)(C)(ii) because Congress
delegated authority to consider such requests to the Secretary
of Homeland Security, thereby depriving immigration judges
of jurisdiction. Whether an immigration judge has jurisdiction
to consider a § 1182(a)(9)(C)(ii) request for consent to
reapply for admission is an issue of first impression. We
conclude that an immigration judge lacks jurisdiction, and we
will deny the petition.
I.
Sarango, a native and citizen of Ecuador, illegally
entered the United States for the first time in June 1991. On
December 14, 1994, the Immigration and Naturalization
Service (now the Department of Homeland Security)
commenced deportation proceedings. At the conclusion of
these proceedings, an Immigration Judge (“IJ”) granted
Sarango voluntary departure on or before October 6, 1995.
Nevertheless, Sarango remained in the United States for over
three additional years before finally departing on February 25,
1999.
Just over a year after her departure, in August 2000,
Sarango illegally reentered the United States without
admission or inspection. Shortly after her reentry, Sarango
married a United States citizen. Based on this marriage,
Sarango applied – using a different alien registration number
from her original registration number – for adjustment of
status to lawful permanent resident (“LPR”). While her status
adjustment application was pending, on August 27, 2001
Sarango filed an application for consent to reapply for
admission to the United States using her original alien
3
registration number. On October 23, 2001, the INS
conditionally granted Sarango LPR status for two years. On
October 7, 2002, the INS denied Sarango‟s application for
consent to reapply for admission. Sarango then sought to
change her conditional LPR status to unconditional LPR
status, and the INS granted her request on June 2, 2004.
On March 1, 2006, during a naturalization interview
related to her status adjustment application, DHS discovered
Sarango‟s previous deportation. DHS then initiated removal
proceedings by serving Sarango with a Notice to Appear
(“NTA”). The NTA charged Sarango with removability
pursuant to 8 U.S.C. § 1227(a)(1)(A) alleging that she was an
alien who is inadmissible: (1) under 8 U.S.C. §
1182(a)(6)(C)(i), for having obtained or tried to obtain her
visa, or other entry document, or entry to the United States by
fraud or willful misrepresentation; (2) under 8 U.S.C. §
1182(a)(7)(A)(i)(I), for not being in possession of a valid
entry or identification document at the time of her admission;
and (3) under 8 U.S.C. § 1182(a)(9)(C)(i)(II), for having been
ordered removed and then reentering or attempting to reenter
the United States without being admitted.1
Sarango appeared before an IJ and admitted her
alienage, her adjustment to LPR status, her previous
immigration history, and her recidivist violation, but she
denied the fraud and inadmissibility charges. Sarango also
submitted an application for adjustment of status based on her
1
The original NTA, filed on March 1, 2006, contained
only the first two inadmissibility charges. DHS then added
the third charge on October 12, 2006.
4
marriage to a United States citizen and an application for
consent to reapply for admission into the United States.
On January 16, 2007, the IJ found Sarango
inadmissible and removable as charged. Subsequently, on
April 15, 2008, the IJ, relying on In re Briones, 24 I. & N.
Dec. 355, 371 (B.I.A. 2007) (holding that “aliens who are
inadmissible under [§ 1182(a)(9)(C)(i)(I)] cannot qualify for
section 245(i) [8 U.S.C. § 1255] adjustment, absent a waiver
of inadmissibility”), denied Sarango‟s 8 U.S.C. § 1255
application for adjustment of status. The IJ determined that,
under Briones, Sarango‟s inadmissibility under §
1182(a)(9)(C)(i)(II) rendered her statutorily ineligible for
adjustment of status. The IJ ordered Sarango removed to
Ecuador.
Sarango appealed the IJ‟s denial of her adjustment of
status application to the Board of Immigration Appeals
(“BIA”). Before the BIA, Sarango argued that she was
eligible for retroactive – “nunc pro tunc”2 – consent to
reapply for admission pursuant to § 1182(a)(9)(C)(ii), and
that a grant of such relief would waive her inadmissibility.
The BIA dismissed Sarango‟s petition, first determining that
Sarango was removable pursuant to § 1227(a)(1)(A) due to
2
The Latin phrase “nunc pro tunc” means “now for
then” and “permits acts to be done after the time they should
have been done with a retroactive effect.” Barden v.
Keohane, 921 F.2d 476, 478 n.2 (3d Cir. 1990). Black’s Law
Dictionary defines “nunc pro tunc” as “[h]aving retroactive
legal effect through a court‟s inherent power.” 1174 (9th ed.
2009).
5
her inadmissibility under § 1182(a)(9)(C)(i)(II).3 Next,
responding to Sarango‟s retroactive consent argument, the
BIA determined that the IJ lacked jurisdiction to decide
requests for consent to reapply for admission. The BIA relied
on the text of § 1182(a)(9)(C)(ii), which vests authority to
consider requests for consent to reapply for admission with
the Secretary of Homeland Security. Because the authority of
the BIA and immigration courts is circumscribed by the
authority of the Attorney General, the BIA reasoned that the
IJ lacked jurisdiction to consider Sarango‟s request. Finally,
the BIA declined to remand or stay Sarango‟s proceeding
while Sarango applied to the Secretary of Homeland Security
for consent to reapply because Sarango failed to allege a
prima facie case for relief. The BIA issued a final order of
removal on May 20, 2010, and Sarango petitioned this Court
for review on June 10, 2010.
II.
We have jurisdiction over a final order of removal
pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA
issued an opinion, we review the BIA‟s decision as the final
agency decision. Espinosa-Cortez v. Att’y Gen. of the United
States, 607 F.3d 101, 106 (3d Cir. 2010). We review
questions of law de novo. Yusupov v. Att’y Gen. of the United
3
Because the BIA determined Sarango was removable
pursuant to § 1227(a)(1)(A) due to her inadmissibility under §
1182(a)(9)(C)(i)(II), it declined to discuss the other alleged
grounds for inadmissibility. A.R. at 4 n.2. We agree with the
BIA‟s determination and need not address the other charged
grounds of inadmissibility.
6
States, 518 F.3d 185, 197 (3d Cir. 2008). We owe deference
to the BIA‟s reasonable, permissible interpretations of the
Immigration and Nationality Act (“INA”). INS v. Aguirre-
Aguirre, 526 U.S. 415, 424-25 (1999); Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984); Yusupov, 518 F.3d at 197.
III.
We first consider whether the BIA correctly concluded
Sarango was inadmissible and removable. We then consider
whether immigration judges have jurisdiction to consider
requests for consent to reapply for admission pursuant to §
1182(a)(9)(C)(ii).
A.
The BIA determined that Sarango was removable
pursuant to § 1227(a)(1)(A). Removability was based on
Sarango‟s inadmissibility as an “alien who . . . has been
ordered removed under . . . any . . . provision of law . . . and
who enters or attempts to reenter the United States without
being admitted.” 8 U.S.C. § 1182(a)(9)(C)(i)(II). In her
immigration proceeding, Sarango admitted that she was
ordered deported in 1995 and that she unlawfully reentered
the United States in August 2000 without being admitted.
Consequently, the BIA concluded that the IJ correctly found
Sarango inadmissible and removable.
Sarango nevertheless argues that § 1182(a)(9)(C)(i)(II)
does not apply to her because she had been ordered deported
in 1995, not removed. This semantic argument is meritless.
We have repeatedly held, in a variety of contexts, that the
7
terms “deportation” and “removal” are interchangeable. See,
e.g., Khouzam v. Att’y Gen. of the United States, 549 F.3d
235, 247 (3d Cir. 2008) (“[T]his circuit and others have used
the terms „deportation‟ and „deportable‟ interchangeably with
the terms „removal‟ and „removable.‟”); Kolkevich v. Att’y
Gen of the United States, 501 F.3d 323, 326 n.2 (3d Cir.
2007) (“We use the terms „final order of removal‟ and
„deportation order‟ interchangeably.”); Avila-Macias v.
Ashcroft, 328 F.3d 108, 111 (3d Cir. 2003) (“[A] reference to
an order of removal would encompass an order of
deportation.”). We apply the terms “deportation” and
“removal” interchangeably here, as well. Therefore, we reject
Sarango‟s argument and agree with the BIA‟s determination
that Sarango is removable under § 1227(a)(1)(A).
B.
We now turn to an issue of first impression: whether
an IJ has jurisdiction to consider requests for consent to
reapply for admission under § 1182(a)(9)(C)(ii).
The BIA concluded that the IJ lacked jurisdiction to
consider Sarango‟s nunc pro tunc consent request under §
1182(a)(9)(C)(ii).4 Rather than resolving Sarango‟s consent
4
8 U.S.C. § 1182(a)(9)(C)(ii) provides, in relevant part:
Exception. Clause (i) 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
8
request on the merits, the BIA raised the IJ‟s lack of
jurisdiction sua sponte and rejected Sarango‟s consent request
on this basis. To support its reasoning, the BIA focused on
the statutory text and concluded that “authority to consent to
an alien‟s reapplication for admission has been delegated to
the Secretary of Homeland Security, not to the Attorney
General.” A.R. at 5.
Sarango argues that the BIA incorrectly concluded that
the IJ lacked jurisdiction to consider her consent request
under § 1182(a)(9)(C)(ii). In support of her argument,
Sarango notes that, in general, an IJ has jurisdiction to
consider status adjustment applications, including
inadmissibility waivers. See, e.g., 8 U.S.C. § 1255(i); 8
C.F.R. § 1240.11; 8 C.F.R. § 212.2. We reject Sarango‟s
arguments because the plain language of § 1182(a)(9)(C)(ii)
authorizes the Secretary of Homeland Security, rather than
the Attorney General, to consider consent requests in these
circumstances.
This issue implicates a legal matter, the statutory
interpretation of § 1182(a)(9)(C)(ii).5 We review de novo
questions regarding the interpretation of the provisions of the
Immigration and Nationality Act (“INA”), and we give
readmitted from a foreign contiguous
country, the Secretary of Homeland
Security has consented to the alien‟s
reapplying for admission.
5
8 U.S.C. § 1182(a)(9)(C)(ii) is a provision of the
Immigration and Nationality Act, § 212(a)(9)(C)(ii).
9
“appropriate deference [to] the BIA‟s reasonable
interpretations of statutes it is charged with administering.”6
De Leon-Ochoa v. Att’y Gen. of the United States, 622 F.3d
341, 348 (3d Cir. 2010); see Aguirre-Aguirre, 526 U.S. at
424-25; Yusupov, 518 F.3d at 197-98. We review the BIA‟s
decision interpreting the INA under the Chevron two-step
inquiry:
If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the
agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the
court determines Congress has not directly
addressed the precise question at issue . . . the
question for the court is whether the agency‟s
answer is based on a permissible construction of
the statute.
Chevron, 467 U.S. at 842-43. We now apply these principles
to § 1182(a)(9)(C)(ii).
Our review of § 1182(a)(9)(C)(ii) leads us to conclude
that Congress clearly intended to vest authority to consider
requests for consent to reapply for admission with the
6
Determining what constitutes “appropriate” deference
to unpublished, non-precedential, single-member BIA
decisions is an open question. De Leon-Ochoa, 622 F.3d at
350-51. Here, as in De Leon-Ochoa, because the issue of
appropriate deference is not dispositive, we decline to resolve
this question. See id. at 351.
10
Secretary of Homeland Security.7 Plain, unambiguous
language compels this result. The statutory provision at issue
functions as an exception to 8 U.S.C. §§ 1182(a)(9)(C)(i)(I)
and (II) and permits an inadmissible alien to ask the Secretary
of Homeland Security for consent to reapply for admission
after waiting ten years. The statute makes abundantly clear
that the Secretary of Homeland Security – not the Attorney
General – has the authority to consider consent to reapply
requests. The statute reads: “Exception. Clause [8 U.S.C. §
1182(a)(9)(C)(i)] shall not apply to an alien seeking
admission . . . if . . . the Secretary of Homeland Security has
consented to the alien‟s reapplying for admission.” 8 U.S.C.
§ 1182(a)(9)(C)(ii) (emphasis added).
The requirement that an alien seek consent from the
Secretary of Homeland Security is the result of a recent
statutory amendment. See Violence Against Women and
Department of Justice Reauthorization Act – Technical
Corrections, Pub. L. No. 109-271, sec. 6, § 1182, 120 Stat.
750, 762 (2006). Prior to the 2006 amendment, the statute
read:
Exception
Clause [8 U.S.C. § 1182(a)(9)(C)(i)] 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
7
Because the plain language of the statute makes
Congress‟s intent clear, we need not reach the second step of
the Chevron analysis. Nevertheless, if we were to engage in a
Chevron step two analysis, we think the BIA‟s interpretation
of the statute is permissible and reasonable.
11
alien‟s reembarkation at a place outside the
United States or attempt to be readmitted from a
contiguous territory, the Attorney General has
consented to the alien’s reapplying for
admission. The Attorney General in the
Attorney General’s discretion may waive the
provisions of subsection (a)(9)(C)(i) in the case
of an alien whom the Attorney General has
granted classification under clause (iii), (iv), or
(v) of section 1154(a)(1)(A) of this title, or
classification under clause (ii), (iii), or (iv) of
section 1154(a)(1)(B) of this title, in any case in
which there is a connection between –
(1) the alien’s having been battered or
subjected to extreme cruelty; and
(2) the alien’s –
(A) removal;
(B) departure from the United
States;
(C) reentry or reentries into the
United States; or
(D) attempted reentry into the
United States.
8 U.S.C. § 1182(a)(9)(C)(ii) (2005) (emphasis added). The
2006 amendment then deleted the italicized text above, i.e.,
“„the Attorney General has consented‟ and all that follows
through „United States.‟” 120 Stat. at 762. Subsequently, the
2006 amendment replaced the stricken text with “„the
Secretary of Homeland Security has consented to the alien‟s
12
reapplying for admission.‟” Id.8 The clear textual changes
brought about by this amendment indicate Congress‟s intent
to divest the Attorney General of authority to consider
consent requests and to endow the Secretary of Homeland
Security with this authority.
Because the Secretary of Homeland Security (rather
than the Attorney General) now has the exclusive authority to
decide consent to reapply requests, the BIA and immigration
courts necessarily lack the authority to consider these
requests. The BIA and immigration courts are agencies
operating under the authority of the Attorney General, and
these immigration agencies have authority (deriving from
statute and regulations) circumscribed by that of the Attorney
General. See, e.g., 8 U.S.C. § 1101(b)(4) (“The term
„immigration judge‟ means an attorney whom the Attorney
General appoints . . . . An immigration judge shall be subject
to such supervision and shall perform such duties as the
Attorney General shall prescribe . . . .”); 8 C.F.R. §
1003.1(a)(1) (“There shall be in the Department of Justice a
Board of Immigration Appeals . . . . Board members shall be
attorneys appointed by the Attorney General to act as the
Attorney General‟s delegates . . . .”); 8 C.F.R. § 1003.1(d)(1);
8 C.F.R. § 1003.10(b). Because the Attorney General no
longer has authority to consider consent to reapply requests,
neither do the BIA or immigration courts.
8
The 2006 amendment also added a new provision, 8
U.S.C. § 1182(a)(9)(C)(iii), which applies to self-petitioners
under the Violence Against Women Act. 750 Stat. at 762.
Sarango‟s argument does not implicate this provision.
13
Finally, we note that the BIA previously has
recognized that Congress can – and has – limited the
jurisdiction of the immigration agencies by delegating
decision-making authority to other federal departments. For
example, in In re Ruiz-Massieu, the BIA held that
immigration judges could not exercise de novo review over
the Secretary of State‟s finding. 22 I. & N. Dec. 833, 842
(B.I.A. 1999) (“We conclude that Congress‟ decision to
require a specific determination by the Secretary of State,
based on foreign policy interests, to establish deportability . . .
coupled with division of authority . . . between the Attorney
General and the Secretary of State, make it clear that the
Secretary of State‟s reasonable determination in this case
should be treated as conclusive evidence of the respondent‟s
deportability.”); see also Matter of Anttalainen, 13 I. & N.
Dec. 349, 350 (B.I.A. 1969) (concluding that BIA lacked
authority to review the Secretary of Labor‟s denial of a labor
certification because “[t]he law . . . makes the issuance of a
labor certification a matter solely for the consideration of the
Department of Labor.”). Here, similarly, Congress passed a
law making consideration of § 1182(a)(9)(C)(ii) consent to
reapply requests the exclusive province of the Secretary of the
Homeland Security. Neither this Court nor the BIA has the
power to contravene this explicit congressional directive.
Nevertheless, Sarango insists that two provisions, 8
U.S.C. § 1255(i) and 8 C.F.R. § 212.2(e), still give the
immigration court jurisdiction to consider her consent
request. We disagree.
First, Sarango contends that § 1255(i) gives the IJ
jurisdiction because an alien “[m]ay apply to the Attorney
General for the adjustment of his or her status to that of an
14
alien lawfully admitted for permanent residence.” 8 U.S.C. §
1255(i)(1). To bolster her argument, Sarango relies on 8
C.F.R. § 1240.11, which permits an IJ to consider an
application for waiver of inadmissibility in connection with
an application for adjustment of status. However, nothing in
these general provisions conflicts with our reading of §
1182(a)(9)(C)(ii). The plain text of § 1182(a)(9)(C)(ii) makes
clear that the Secretary of Homeland Security – not the
Attorney General – has authority to consider requests for
consent to reapply. In the specific context of recidivist
violators of the immigration laws who are inadmissible under
§ 1182(a)(9)(C), Congress has carved out an exception to §
1255‟s general grant of jurisdiction to the Attorney General to
consider status adjustment applications.
Likewise unavailing is Sarango‟s reliance on 8 C.F.R.
§ 212.2(e).9 Sarango reads this regulation to give an IJ
9
8 C.F.R. § 212.2(e) provides:
Applicant for adjustment of status. An
applicant for adjustment of status under
section 245 of the Act [8 U.S.C. § 1255]
and part 245 of this chapter must request
permission to reapply for entry in
conjunction with his or her application
for adjustment of status. This request is
made by filing Form I-212, Application
for Permission to Reapply. If the
application under section 245 of the Act
has been initiated, renewed, or is pending
in a proceeding before an immigration
judge, the district director must refer the
15
jurisdiction to consider her consent request. Sarango over-
reads this regulation, and her interpretation is contrary to the
BIA‟s decision in In re Torres-Garcia, 23 I. & N. Dec. 866
(B.I.A. 2006). Primarily, this regulation requires, as a
threshold matter, that an applicant apply under 8 U.S.C. §
1255 for adjustment of status. 8 C.F.R. § 212.2(e). But
Sarango is statutorily ineligible for adjustment of status under
§ 1255 because she is not “admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(i)(2)(A); see In re
Briones, 24 I. & N. Dec. at 371. Consequently, Sarango falls
outside the scope of 8 C.F.R. § 212.2(e).
Moreover, the BIA held in In re Torres-Garcia that an
alien who is inadmissible pursuant to § 1182(a)(9)(C)(i)(II)
cannot seek retroactive permission to reapply for admission
under 8 C.F.R. §§ 212.2(e) and (i)(2). 23 I. & N. Dec. at 874-
75 (“[T]he very concept of retroactive permission to reapply
for admission, i.e., permission requested after unlawful
reentry, contradicts the clear language of section 212(a)(9)(C)
. . . .”). We see no reason to depart from the BIA‟s Torres-
Garcia decision interpreting this clear statute. Indeed,
multiple Circuit Courts of Appeals have followed Torres-
Garcia and held that an alien who is inadmissible under §
1182(a)(9)(C)(i)(II) is not eligible for retroactive consent to
reapply for admission under 8 C.F.R. § 212.2 and,
consequently, cannot adjust status pursuant to § 1255(i). See
Gonzalez-Balderas v. Holder, 597 F.3d 869, 870 (7th Cir.
2010) (“[A]n application for retroactive relief . . . cannot be
granted when the effect would be to lift the ten-year bar.”);
Delgado v. Mukasey, 516 F.3d 65, 72 (2d Cir. 2008) (“The
Form I-212 to the immigration judge for
adjudication.
16
BIA has expressly held, however, that 8 C.F.R. § 212.2 does
not operate as a waiver of inadmissibility under 8 U.S.C. §
1182(a)(9) . . . .”); Gonzales v. DHS, 508 F.3d 1227, 1242
(9th Cir. 2007) (“[A]n applicant who is inadmissible under
subsection (a)(9)(C)(i)(II) is also ineligible to adjust his status
under the special adjustment provision from within the United
States. The alien is bound by subsection (a)(9)(C)(ii) . . . .”);
see also In re Briones, 24 I. & N. Dec. at 371 (“[A]liens who
are inadmissible under section 212(a)(9)(C)(i)(I) of the Act
cannot qualify for section 245(i) adjustment, absent a waiver
of inadmissibility.”). We also will adhere to the statute‟s
plain language. Nothing in 8 C.F.R. § 212.2 confers
jurisdiction on an IJ to consider Sarango‟s consent request in
direct contravention of the plain text of § 1182(a)(9)(C)(ii).
Consequently, Sarango is incorrect that this regulation
preserved the IJ‟s jurisdiction to consider her retroactive
consent request.
In sum, the BIA correctly concluded that the IJ lacked
jurisdiction to consider Sarango‟s “nunc pro tunc” request for
consent to reapply for admission pursuant to §
1182(a)(9)(C)(ii).10
10
Rather than stay or remand Sarango‟s petition while
she applied for consent to reapply for admission from the
Secretary of Homeland Security, the BIA dismissed Sarango‟s
petition outright because it determined Sarango could not
demonstrate prima facie eligibility for a § 1182(a)(9)(C)(ii)
inadmissibility waiver. We agree with the BIA‟s disposition.
The § 1182(a)(9)(C)(ii) exception provision explicitly requires
that an alien wait ten years from the prior removal date before
seeking consent to reapply. But Sarango departed the United
States in February 1999 and reentered after just one year in
17
IV.
For the foregoing reasons, we deny Sarango‟s Petition
for Review.
August 2000. Therefore, even if 8 C.F.R. § 212.2(i) permitted
Sarango to apply for nunc pro tunc relief, she did not satisfy
the ten-year wait-to-reenter requirement. Accordingly, we will
deny her petition.
18