DIAZ AND LOPEZ

Cite as 25 I&N Dec. 188 (BIA 2010) Interim Decision #3672

Matter of Caritina DIAZ-Castaneda, Respondent

Matter of Porfirio LOPEZ-Lopez, Respondent

File A078 740 900 - Portland, Oregon

File A078 740 903

Decided January 27, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien who is inadmissible under section 212(a)(9)(C)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(9)(C)(i) (2006), is ineligible for adjustment of status

under section 245(i) of the Act, 8 U.S.C. § 1255(i) (2006). Matter of Briones, 24 I&N Dec.

355 (BIA 2007), reaffirmed.

FOR RESPONDENT: Samuel W. Asbury, Esquire, Gresham, Oregon

FOR THE DEPARTMENT OF HOMELAND SECURITY: Thomas L. Day, Deputy Chief

Counsel

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

GRANT, Board Member:

In a decision dated January 10, 2008, an Immigration Judge found the

respondents statutorily ineligible for adjustment of status under section 245(i)

of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), as aliens

who are inadmissible under section 212(a)(9)(C)(i) of the Act, 8 U.S.C.

§ 1182(a)(9)(C)(i) (2006), but he granted their request for voluntary departure.

The respondents have appealed from the Immigration Judge’s denial

of adjustment of status. The appeal will be dismissed.

We review the findings of fact made by the Immigration Judge, including

findings as to the credibility of testimony, to determine whether they are

“clearly erroneous,” and we review de novo all questions of law, discretion,

and judgment, including whether the parties have met their relevant burden

of proof. 8 C.F.R. §§ 1003.1(d)(3)(i)–(ii) (2010); see also Matter of V-K-,

24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

The respondents, who are natives and citizens of Mexico, first entered the

United States without inspection in 1988. They were in the United States

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unlawfully for more than 1 year after April 1, 1997.1 On October 1, 2000, they

departed the United States, and they reentered unlawfully on November 1,

2000.

The respondents have not meaningfully challenged on appeal the

Immigration Judge’s finding of relevant facts. Nor have they meaningfully

contested that they are inadmissible under section 212(a)(9)(C)(i) of the Act.

Based on these undisputed facts, we conclude that each respondent

is inadmissible under section 212(a)(9)(C)(i)(I) as an alien who has been

unlawfully present in the United States for an aggregate period of more than

1 year and who entered the United States without being admitted.

Because the respondents are inadmissible under section 212(a)(9)(C)(i)(I)

of the Act, the Immigration Judge found that he was bound by Board precedent

to conclude that the respondents are ineligible for adjustment of status under

section 245(i). On appeal, the respondents acknowledge that in Matter

of Briones, 24 I&N Dec. 355 (BIA 2007), we held that adjustment of status

under section 245(i) is not available to an alien who is inadmissible under

section 212(a)(9)(C)(i)(I). The respondents argue, however, that despite this

Board precedent, the Immigration Judge should have applied the preceding

decision of the United States Court of Appeals for the Ninth Circuit in Acosta

v. Gonzales, 439 F.3d 550 (9th Cir. 2006), which held that an alien who

is inadmissible under section 212(a)(9)(C)(i)(I) is eligible to apply for

adjustment of status under section 245(i).

The Ninth Circuit has not yet addressed whether it would accord deference

to the Board’s intervening decision in Matter of Briones under Chevron, USA.,

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

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967

(2005) (stating that a court’s prior judicial construction of a statute trumps

an agency construction that is otherwise entitled to Chevron deference if the

prior court decision holds that the construction follows from the unambiguous

terms of the statute and thus leaves no room for agency discretion). However,

both the Second Circuit in Mora v. Mukasey, 550 F.3d 231, 239 (2d Cir. 2008),

and the Sixth Circuit in Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th

Cir. 2008), have since held that because the Board analyzed and interpreted the

1

Section 212(a)(9)(C) of the Act was enacted by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat.

3009-546, which was effective April 1, 1997. Under section 212(a)(9)(C)(i)(I), 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 admitted

is inadmissible.”

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ambiguous provisions of the immigration laws reasonably in Matter

of Briones, Chevron deference should be accorded to our conclusion that

an alien who is determined to be inadmissible under section 212(a)(9)(C)(i)(I)

is ineligible to adjust status under section 245(i). Furthermore, the Seventh

Circuit recently noted that there was sufficient ambiguity between sections

212(a)(9)(C)(i)(I) and 245(i) to require Chevron deference and that it “would

find that the [Board] has drawn a rational line.” Lemus-Losa v. Holder, 576

F.3d 752, 760 (7th Cir. 2009).

In Acosta v. Gonzales, 439 F.3d 550, the Ninth Circuit stated that it was

constrained by its prior decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783

(9th Cir. 2004), which held that adjustment of status under section 245(i) of the

Act remained available for aliens who are inadmissible under section

212(a)(9)(C)(i)(II). However, in Gonzales v. Department of Homeland

Security, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit subsequently

overruled Perez-Gonzalez after granting Chevron deference to the Board’s

decision in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), which had

rejected the Ninth Circuit’s analysis in Perez-Gonzalez. In so doing, the Ninth

Circuit recognized that Perez-Gonzalez was premised on the “existence

of ambiguity in the interplay between the inadmissibility and adjustment

of status provisions” and that the Board’s interpretation of these ambiguous

statutes in Matter of Torres-Garcia was reasonable. Gonzales v. Dep’t

of Homeland Sec., 508 F.3d at 1238, 1242. The Second Circuit took note

of these developments to conclude that Gonzales substantially undermined

Acosta. See Mora v. Mukasey, 550 F.3d at 237.

In Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009), the Ninth

Circuit found that neither Brand X nor Gonzales suggests that although

agencies do retain discretion to determine ambiguous statutes, an agency may

repeatedly put forward an interpretation that a circuit court has already

examined under Chevron and found to be unreasonable. However, the instant

case can be distinguished from Mercado-Zazueta because the Ninth Circuit has

already determined that the Board’s interpretation of similar statutes was

reasonable.

We agree with the Immigration Judge that the respondents, as aliens who

are inadmissible under section 212(a)(9)(C)(i)(I) of the Act, are ineligible for

adjustment of status under section 245(i). Neither the Immigration Judge nor

the Board remains bound by the Ninth Circuit’s decision in Acosta in light

of our subsequently issued decision in Matter of Briones and the Ninth

Circuit’s decision in Gonzales to overrule Perez-Gonzalez. See Matter

of Silva-Trevino, 24 I&N Dec. 687, 696 (A.G. 2008) (noting that

administrative agencies are not bound by prior judicial interpretations

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of ambiguous statutory provisions); see also Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967. The analysis of Matter of Briones

is therefore applicable, and the Immigration Judge properly found the

respondents ineligible for adjustment of status under section 245(i) of the Act.

Accordingly, the respondents’ appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the Immigration Judge’s order and

conditioned upon compliance with conditions set forth by the Immigration

Judge and the statute, the respondents are permitted to voluntarily depart the

United States, without expense to the Government, within 60 days from the

date of this order or any extension beyond that time as may be granted by the

Department of Homeland Security (“DHS”). See section 240B(b) of the

Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2006); see also

8 C.F.R. §§ 1240.26(c), (f) (2010). In the event the respondents fail

to voluntarily depart the United States, the respondents shall be removed

as provided in the Immigration Judge’s order.

NOTICE: If the respondents fail to voluntarily depart the United States

within the time period specified, or any extensions granted by the DHS, the

respondents shall be subject to a civil penalty as provided by the regulations

and the statute and shall be ineligible for a period of 10 years for any further

relief under section 240B and sections 240A, 245, 248, and 249 of the Act,

8 U.S.C. § 1229b, 1255, 1258, and 1259 (2006). See section 240B(d) of the

Act.

WARNING: If the respondents file a motion to reopen or reconsider prior

to the expiration of the voluntary departure period set forth above, the grant

of voluntary departure is automatically terminated; the period allowed for

voluntary departure is not stayed, tolled, or extended. If the grant of voluntary

departure is automatically terminated upon the filing of a motion, the

penalties for failure to depart under section 240B(d) of the Act shall not

apply. See Voluntary Departure: Effect of a Motion To Reopen or Reconsider

or a Petition for Review, 73 Fed. Reg. 76,927, 937-38 (Dec. 18, 2008)

(codified at 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1) (2010)).

WARNING: If, prior to departing the United States, the respondents file

any judicial challenge to this administratively final order, such as a petition for

review pursuant to section 242 of the Act, 8 U.S.C. § 1252 (2006), the grant

of voluntary departure is automatically terminated, and the alternate order

of removal shall immediately take effect. However, if the respondents file

a petition for review and then depart the United States within 30 days of such

filing, the respondents will not be deemed to have departed under an order

of removal if they provide to the DHS such evidence of their departure that the

Immigration and Customs Enforcement Field Office Director of the DHS may

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require and provide evidence the DHS deems sufficient that they have

remained outside of the United States. The penalties for failure to depart under

section 240B(d) of the Act shall not apply to an alien who files a petition for

review, notwithstanding any period of time that he or she remains in the

United States while the petition for review is pending. See 73 Fed. Reg. at

76,938 (codified at 8 C.F.R. § 1240.26(i)).

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