CHERUKU v. Attorney General of US

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1176

___________

SHIREESHA REDDY CHERUKU1,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_______________________

On Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A078-722-997

(U.S. Immigration Judge: Honorable Eugene Pugliese)

______________

Argued May 24, 2011

1

According to the I-485 adjustment of status application, the

petitioner‟s full name is “Shireesha Reddy Cheruku,” not

“Reddy Shireesha” as the IJ and BIA both stated in their

respective decisions. (A.R. 82, 86). We therefore amend the

caption and will refer to the petitioner by her last name,

Cheruku.

Before: McKEE, Chief Judge,

SCIRICA and RENDELL, Circuit Judges.

(Filed: September 22, 2011)

EDWARD J. CUCCIA, ESQUIRE (ARGUED)

Ferro & Cuccia

100 Lafayette Street, Suite 201

New York, New York 10013

Attorney for Petitioner

PATRICK J. GLEN, ESQUIRE (ARGUED)

BENJAMIN ZEITLIN, ESQUIRE

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Reddy Cheruku filed a petition for review of the BIA‟s

decision affirming denial of her application to adjust her

status to that of a lawful permanent resident under the Legal

Immigration Family Equity Act, 8 U.S.C. § 1255(i), because

she was found inadmissible under 8 U.S.C. §

1182(a)(9)(B)(i)(II). We will deny the petition for review.

2

I.

The facts are undisputed. Cheruku, a citizen of India,

entered the United States in 1995 on a B-1 visa, which she

subsequently overstayed. After her visa expired, she accrued

more than one year of unlawful presence in the United States.

In 1998, Cheruku and her employer filed an application for

labor certification that was approved in March 1999. Her

employer then filed a Petition for Alien Worker that was

granted on November 29, 2000. On December 21, 2001,

Cheruku applied to adjust her immigration status to that of a

lawful permanent resident under the Legal Immigration

Family Equity Act, 8 U.S.C. § 1255(i) (LIFE Act).

While her application for adjustment of status was

pending, Cheruku applied for and was granted an advanced

parole.2 The advanced parole document issued to Cheruku

warned that if she accrued more than 180 days of unlawful

presence subsequent to April 1, 1997, and subsequent to

applying for adjustment of status, and then departed the

United States, she “may be found inadmissible under section

212(a)(9)(B)(i) [8 U.S.C.§ 1182(a)(9)(B)(i)] of the Act when

[she] return[s] to the United States to resume the processing

of [her] application.” Notwithstanding this warning, Cheruku

traveled outside the United States and used the advanced

2

Advanced parole permits an alien temporarily to remain in

“the United States pending a decision regarding his

application for admission.” Bamba v. Rile, 366 F.3d 195, 196

n.2 (3d Cir. 2004). When used to enter the United States

initially or after travel, “„this amounts to permission . . . for

ingress into the country but is not a formal “admission”.‟” Id.

(quoting Chi Thon Ngo v. INS, 192 F.3d 390, 392 n.1 (3d Cir.

1999)).

3

parole to be permitted to reenter the United States upon her

return on November 28, 2002.

On April 28, 2004, Cheruku‟s application for

adjustment of status under the LIFE Act was denied because

her travel outside of the country rendered her inadmissible for

a period of ten years under 8 U.S.C. § 1182(a)(9)(B)(i)(II),

commonly referred to as the ten-year bar. She filed a petition

to reopen, which was denied on August 5, 2004. On August

31, 2004, Cheruku was served with a Notice to Appear

charging her with being removable under the ten-year bar, 8

U.S.C. 1182(a)(9)(B)(i)(II), because she had accrued more

than one year of unlawful presence in the United States,

departed the United States, and subsequently sought

admission within ten years of her departure.3

In removal proceedings, Cheruku renewed her

application for adjustment of status. The Immigration Judge

initially held he lacked jurisdiction over the adjustment

application because Cheruku was an arriving alien. In

response, Cheruku appealed to the BIA. The BIA remanded

proceedings to the IJ in light of intervening case law that

permits immigration judges to adjudicate certain adjustment

applications. The IJ denied Cheruku‟s application on

February 27, 2008, and granted her request for voluntary

departure. Cheruku timely appealed to the BIA.

Before the BIA, Cheruku made several arguments:

first, that the LIFE Act waived the statutory bar to

admissibility; second, that the circumstances of her departure

and return were factually distinguishable from those at issue

in prior BIA precedents; third, that the Department of

3

Cheruku concedes she is inadmissible under this provision.

4

Homeland Security (DHS) should be equitably estopped from

finding her inadmissible, or in the alternative, that she should

be afforded retroactive, nunc pro tunc, equitable relief; and

finally, that the grant of an advanced parole should require

DHS to disregard her departure.

The BIA denied Cheruku‟s appeal on December 18,

2009. In its decision, the BIA relied on its opinion In re

Lemus-Losa, 24 I. & N. Dec. 373, 379-80 (BIA 2007), in

which it held aliens inadmissible under § 1182(a)(9)(B)(i)(II)

are ineligible for adjustment of status under the LIFE Act.

The BIA noted the United States Court of Appeals for the

Seventh Circuit had called Lemus-Losa into question, see

Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009), but

reiterated its understanding of the statutes as set forth in

Lemus-Losa, 24 I. & N. Dec. 373. In addition, the BIA

emphasized the advanced parole document issued to Cheruku

explicitly warned that if she were to leave the United States,

she could be found inadmissible upon her return. The BIA

accordingly rejected Cheruku‟s equitable estoppel argument,

finding no misconduct on the part of DHS. The BIA also

rejected Cheruku‟s request for retroactive relief stating it was

precluded by statute from creating a retroactive waiver of

inadmissibility, and it rejected her argument that the advanced

parole document should render her departure a nullity.

Consequently, the BIA affirmed the Immigration Judge‟s

conclusion that Cheruku was ineligible for adjustment of

status, and granted her request for voluntary departure.

Cheruku timely petitioned for review of the BIA‟s

decision and renews her arguments on appeal.

II.

5

The BIA had appellate jurisdiction over Cheruku‟s

removal proceeding under 8 C.F.R. §§ 1003.1(b)(3) and

1240.15. We have jurisdiction to review final orders of

removal under the Immigration and Nationality Act (INA), 8

U.S.C. § 1252(a).

Because the BIA issued a fully reasoned opinion, we

review the BIA‟s opinion as the final agency decision.

Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 106 (3d Cir.

2010). We review questions of law, such as the BIA‟s

interpretation of immigration statutes, de novo, “including

both pure questions of law and applications of law to

undisputed facts,” Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d

Cir. 2008), “subject to the principles of deference articulated

in Chevron v. [NRDC, 467 U.S. 837, 844] (1984),” Kaplun v.

Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010).

“The BIA‟s construction of the statute is entitled to

deference and must be accepted by the Court if it is based

upon a permissible construction of the statute.” Filja v.

Gonzales, 447 F.3d 241, 252 (3d Cir. 2006) (citing Chevron,

467 U.S. at 842-43). Such deference is “especially

appropriate in the immigration context where officials

exercise especially sensitive political functions that implicate

questions of foreign relations.” INS v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999) (internal quotation omitted).

We conduct a two-part inquiry, first asking “whether

„the statute is silent or ambiguous with respect to the specific

issue‟ before [us].” Id., at 424 (quoting Chevron, 467 U.S. at

843). If the statute‟s language is clear and unambiguous, we

uphold the plain meaning of the statute. See INS v. Cardoza-

Fonseca, 480 U.S. 421, 432-33 & n.12 (1987). But if the

statute is silent or ambiguous, “„the question for the court [is]

6

whether the agency's answer is based on a permissible

construction of the statute.‟” Aguirre-Aguirre, 526 U.S. at

424 (quoting Chevron, 467 U.S. at 843). When the ambiguity

is implicit, “if the [BIA‟s] construction is reasonable,

Chevron requires a federal court to accept the agency‟s

construction of the statute, even if the agency‟s reading

differs from what the court believes is the best statutory

interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 980 (2005).

III.

A.

On appeal, Cheruku challenges the BIA‟s

determination that her inadmissibility under 8 U.S.C. §

1182(a)(9)(B)(i)(II) precludes her adjustment of status under

the LIFE Act, 8 U.S.C. § 1255(i). In support, she contends

the LIFE Act waives the statutory ten-year bar to

admissibility. Conversely, the Government contends the

conflict between the provisions of the LIFE Act and certain

grounds for inadmissibility introduces ambiguity into the

statutory scheme and, consequently, that we owe deference to

the BIA‟s reasonable statutory interpretation.

1.

Our first task is to determine whether the statutory

scheme is ambiguous. Aguirre-Aguirre, 526 U.S. at 424. In

1994, Congress amended the INA by adding a new section—

245(i), codified as 8 U.S.C. § 1255(i)—otherwise known as

the LIFE Act. In re Briones, 24 I. & N. Dec. 355, 358-61

(BIA 2007). The LIFE Act was enacted to permit certain

aliens unlawfully present in the United States to apply to

7

adjust their statuses to that of lawful permanent residents

without having to undergo consular inspection and admission

abroad.4 See Briones, 24 I. & N. Dec. at 359-61. On its face,

4

In relevant part, § 1255(i) reads:

(i) Adjustment in status of certain aliens

physically present in United States

(1) Notwithstanding the provisions of

subsections (a) and (c) of this section, an

alien physically present in the United

States—

(A) who—

(i) entered the United States without

inspection; or

(ii) is within one of the classes

enumerated in subsection (c) of this

section;

(B) who is the beneficiary (including a

spouse or child of the principal alien, if

eligible to receive a visa under section

1153(d) of this title) of—

(i) a petition for classification under

section 1154 of this title that was filed

with the Attorney General on or

before April 30, 2001; or

(ii) an application for a labor

certification under section

1182(a)(5)(A) of this title that was

filed pursuant to the regulations of the

Secretary of Labor on or before such

date; and

(C) who, in the case of a beneficiary of a

petition for classification, or an

8

§ 1255(i)(2)(A) of the LIFE Act requires an alien to be

“admissible” to the United States in order to qualify for

adjustment.

In 1997, Congress enacted the Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA), Pub. L.

No. 104-208 § 301, 110 Stat. 3009-546, 3009-577-78 (1997),

application for labor certification,

described in subparagraph (B) that was

filed after January 14, 1998, is physically

present in the United States on December

21, 2000;

may apply to the Attorney General for the

adjustment of his or her status to that of an alien

lawfully admitted for permanent residence

....

(2) Upon receipt of such an application and

the sum hereby required, the Attorney

General may adjust the status of the alien to

that of an alien lawfully admitted for

permanent residence if—

(A) the alien is eligible to receive an

immigrant visa and is admissible to the

United States for permanent residence;

and

(B) an immigrant visa is immediately

available to the alien at the time the

application is filed.

....

Congress later amended the section, extending its expiration

date, and adding additional requirements. See Padilla-

Caldera v. Holder, 637 F.3d 1140, 1148 n.7 (10th Cir. 2011).

9

which, among other things, added several statutory provisions

to the INA rendering certain groups of aliens inadmissible.

See Briones, 24 I. & N. Dec. at 358. Section 1182(a)(6)(A)(i)

of the INA, added by IIRIRA, generally renders inadmissible

those who are “present in the United States without being

admitted or paroled, or who arrive[] in the United States at

any time or place other than as designated by the Attorney

General.” Congress also added other, more specific, bars to

admissibility when it enacted IIRIRA. The provisions of §

1182(a)(9)(C) render inadmissible aliens having certain prior

immigration violations, and the provisions of § 1182(a)(9)(B)

render inadmissible for a period of time aliens who have

accrued a period of unlawful presence.

The adjustment provisions of § 1255(i) are clearly in

tension with the bars to admissibility set forth in §

1182(a)(6)(A)(i). Further complicating matters, the prefatory

language of § 1182(a) states that “[e]xcept as otherwise

provided in this chapter, aliens who are inadmissible . . . are

ineligible to be admitted to the United States.” Unless this

“savings clause” is applied, a straightforward application of §

1182(a)(6)(A)(i) would render the LIFE Act a nullity by

barring from adjustment any individual not admitted or

paroled. See Mora v. Mukasey, 550 F.3d 231, 237-38 (2d Cir.

2008). Because we are “unable to infer from the statutory

language the way in which 1255(i) implicitly waives unlawful

presence as a ground for inadmissibility,” we join with our

sister circuits in finding the statute ambiguous. Herrera-

Castillo v. Holder, 573 F.3d 1004, 1008 (10th Cir. 2009),

cert. denied, 130 S. Ct. 3505 (2010); see also Garfias-

Rodriguez v. Holder, No. 09-72603, --- F.3d ----, 2011 U.S.

App. LEXIS 7406, at *15 (9th Cir. Apr. 11, 2011); Padilla-

Caldera v. Holder, 637 F.3d 1140, 1148 (10th Cir. 2011);

10

Ramirez v. Holder, 609 F.3d 331, 336 (4th Cir. 2010);

Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th Cir.

2010); Villanueva v. Holder, 615 F.3d 913, 915 (8th Cir.

2010); Mora, 550 F.3d at 237-38; Ramirez-Canales v.

Mukasey, 517 F.3d 904, 908 (6th Cir. 2008); Mortera-Cruz v.

Gonzales, 409 F.3d 246, 253 (5th Cir. 2005).

2.

Having found the statute to be ambiguous, we evaluate

whether the BIA‟s interpretation of the statutes is reasonable.

See Brand X Internet Servs., 545 U.S. at 980. The BIA has

read § 1255(i) as an implicit waiver of inadmissibility under §

1182(a), but only for those aliens who are inadmissible under

§ 1182(a)(6)(A)(i). See Briones, 24 I. & N. Dec. at 365.

According to the BIA, “[LIFE Act] adjustment remains

available to aliens inadmissible under [1182(a)(6)(A)(i)] only

because a contrary interpretation would render the language

of [the LIFE Act] so internally contradictory as to effectively

vitiate the statute, an absurd result that Congress is presumed

not to have intended.” Id. (citing Demarest v. Manspeaker,

498 U.S. 184, 190-91 (1991)).

The BIA has not, however, found the more specific

bars to admissibility, added by IIRIRA, to be waived by the

LIFE Act. In Briones, the BIA also held that adjustment of

status under the LIFE Act is unavailable to recidivist

immigration violators barred from admission under 8 U.S.C.

§ 1182(a)(9)(C)(i)(I). See id. at 371. Every circuit court of

appeals to review the Briones decision has upheld it as a

reasonable interpretation of the statutory scheme. See

Garfias-Rodriguez, 2011 U.S. App. LEXIS 7406, at *15;

Padilla-Caldera, 637 F.3d at 1152; Ramirez, 609 F.3d at 337;

Renteria-Ledesma, 615 F.3d at 908; Villanueva, 615 F.3d at

11

915; Mora, 550 F.3d at 239; Ramirez-Canales, 517 F.3d at

910.

In Lemus-Losa, the BIA considered the provision at

issue here, which renders inadmissible any alien who “has

been unlawfully present in the United States for one year or

more, and who again seeks admission within 10 years of the

date of such alien‟s departure or removal from the United

States.”5 8 U.S.C. § 1182(a)(9)(B)(i)(II). The BIA held

aliens who are inadmissible under this provision are ineligible

for adjustment of status under the LIFE Act absent the grant

of a waiver. See Lemus-Losa, 24 I. & N. Dec. at 378.

The BIA offered several reasons in support of its

interpretation. Notably, the BIA distinguished the specific

inadmissibility provisions of § 1182(a)(9)(B)(i)(II) from the

more general inadmissibility provision of § 1182(a)(6)(A)(i).

Id. at 378. It reaffirmed its conclusion that the general

provisions of § 1182(a)(6)(A)(i) would render the LIFE Act a

nullity, but it concluded application of the inadmissibility

provisions of § 1182(a)(9)(B)(i)(II) would not lead to such an

absurd result. Id. Rather, the BIA explained that unlike §

1182(a)(6)(A)(i), which simply punishes those who enter the

country without inspection, the ten-year bar of §

1182(a)(9)(B)(i)(II) “punishes aliens who seek admission . . .

after having previously accrued a period of unlawful status.”

Id. at 379. Consequently, the BIA concluded its

interpretation was consistent with the “overall purpose of

5

“Departure” has been read to include any departure, Lemus-

Losa, 24 I. & N. Dec. at 376-77, and Cheruku does not appear

to challenge BIA‟s construction of “departure.” In fact,

Cheruku does not contest her inadmissibility under this

provision at all.

12

[1182(a)(9)] to compound the adverse consequences of

immigration violations by making it more difficult for

individuals who have left the United States after committing

such violations to be lawfully admitted thereafter.” Id.

(quotation omitted).

The BIA also noted that whenever Congress has

“extended eligibility for adjustment of status to inadmissible

aliens, it has done so unambiguously.” Id. at 378. In support,

the BIA observed Congress had expressly provided a waiver

of inadmissibility under § 1182(a)(9)(B) for aliens seeking

adjustment of status under the Nicaraguan Adjustment and

Central American Relief Act, Pub. L. No. 105-100, 111 Stat.

2193 (1997), and the Haitian Refugee Immigration Fairness

Act, Pub. L. No. 105-277, 112 Stat. 2681-538 (1992). Lemus-

Losa, 24 I. & N. Dec. at 378 & n.5.

The two circuit courts of appeals to have reviewed the

BIA‟s decision in Lemus-Losa have reached opposite results.

The Tenth Circuit found the statute to be ambiguous and

upheld the BIA‟s interpretation of the statutory scheme as

reasonable. See Herrera-Castillo, 573 F.3d at 1009. A few

weeks later, the Seventh Circuit considered the same issue. It

observed that § 1182(a)(9)(C)(i)(I),6 the provision at issue in

6

This section provides:

(i) In general Any alien who—

(I) has been unlawfully present in the United

States for an aggregate period of more than 1

year, or

(II) has been ordered removed under section

1225(b)(1) of this title, section 1229a of this

title, or any other provision of law, and who

13

Briones, and § 1182(a)(9)(B)(i)(II)7 “both are triggered by an

initial sojourn in the United States that was unlawful,” but

enters or attempts to reenter the United States

without being admitted is inadmissible.

(ii) 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 readmitted from a

foreign contiguous territory, the Secretary of

Homeland Security has consented to the alien‟s

reapplying for admission.

8 U.S.C. § 1182(a)(9)(C)(i).

7

This section provides:

(i) In general Any alien (other than an alien

lawfully admitted for permanent residence)

who—

(I) was unlawfully present in the United States

for a period of more than 180 days but less than

1 year, voluntarily departed the United States

(whether or not pursuant to section 1254a(e) of

this title) prior to the commencement of

proceedings under section 1225(b)(1) of this

title or section 1229a of this title, and again

seeks admission within 3 years of the date of

such alien‟s departure or removal, or

(II) has been unlawfully present in the United

States for one year or more, and who again

seeks admission within 10 years of the date of

such alien‟s departure or removal from the

United States, is inadmissible.

14

that (C)(i)(I) applies to aliens “who enter[] or attempt[] to

reenter the United States without being admitted,” while

(B)(i)(II) applies to aliens “who again seek[] admission

within ten years of the alien‟s departure or removal from the

United States.” Lemus-Losa, 576 F.3d at 757 (quotations and

emphasis omitted). Consequently, in its view, §

1182(a)(9)(B)(i)(II) should be treated analogously to §

1182(a)(6)(A)(i) because “if someone is „seeking admission‟

to the United States on that second occasion and has thus

demonstrated that he is willing to play by the rules, he is no

different from the alien who is physically present in the

United States „without inspection‟ but who is entitled to apply

for LIFE Act relief.” Lemus-Losa, 576 F.3d at 761.

Accordingly, it held the BIA erred because it “did not pay

sufficient heed to the difference between § (B)(i)(II), . . . and

§ (C)(i)(I),” granted the petition for review, and remanded the

case to the BIA for further proceedings.8 Id.

3.

Cheruku urges us to adopt the Seventh Circuit‟s

position that, on the balance, § 1182(a)(9)(B)(i)(II) is

distinguishable from § 1182(a)(9)(C)(i)(I), and should be read

analogously to § 1182(a)(6)(A)(i), which the BIA reads as

being implicitly waived by the LIFE Act.9 Relying on

8 U.S.C. § 1182(a)(9)(B)(i)(II)(footnote omitted).

8

Although the Seventh Circuit noted Chevron controlled its

analysis, Lemus-Losa, 576 F.3d at 755-56, it does not appear

to have applied that framework. It neither explicitly found

the statute to be ambiguous, nor explicitly held the BIA‟s

interpretation of the statute to be unreasonable.

9

Cheruku appears to contend in the alternative that Lemus-

Losa is distinguishable because, unlike the petitioner in

15

Lemus-Losa, she stresses that, by applying for and being

granted advanced parole, she “demonstrated [she] is willing

to play by the rules.” The Seventh Circuit‟s view regarding

harsher treatment for those who do not play by the rules has

considerable appeal and were we not constrained by Chevron

we might agree. But principles of deference require a

different result.

The BIA reasonably concluded the general

inadmissibility provision of § 1182(a)(6)(A)(i) is

distinguishable from the more specific provision of §

1182(a)(9)(B)(i)(II). Lemus-Losa, 24 I. & N. Dec. at 378.

Unlike the bar to admissibility in § 1182(a)(6)(A)(i),

application of the ten-year bar does not render the LIFE Act a

nullity. Id. The group of aliens barred by § 1182(a)(6)(A)(i)

simply because they are unlawfully present is not coextensive

with the smaller group of aliens barred under §

1182(a)(9)(B)(i)(II) because they accrue a period of unlawful

presence, depart, and subsequently return seeking lawful

admission within ten years of the departure. An interpretation

upholding the § 1182(a)(6)(A)(i) bar would make unlawful

presence “„both a qualifying and a disqualifying condition for

adjustment of status,‟” Herrera, 573 F.3d at 1007 (quoting

Briones, 24 I. & N. Dec. at 362); see also Lemus-Losa, 24 I.

& N. Dec. at 378, but the same cannot be said for §

1182(a)(9)(B)(i)(II). Thus, no implicit waiver is required to

Lemus-Losa, who departed the United States and returned

through an illegal border crossing, Cheruku traveled on a duly

issued advanced parole before seeking admission into the

United States. This argument is unavailing. Regardless of

the circumstances of departure and return, both petitioners are

inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II).

16

give effect to the words of the statute. Under the BIA‟s

interpretation of the interplay between the ten-year bar and

the LIFE Act, the prohibition on departure is a

straightforward rule with which aliens seeking adjustment of

status must comply—a rule displayed on advanced parole

documents such as those issued to Cheruku.

We acknowledge that aliens inadmissible under §

1182(a)(9)(C)(i)(I) who attempt to enter or reenter without

being admitted may be more culpable than those under §

1182(a)(9)(B)(i)(II) who are seeking admission, but we do not

think this difference undermines the BIA‟s reasoning that the

provisions are similar. Both are specific bars to admissibility

as distinguished from the more general provision of §

1182(a)(6)(A)(i). Nor do we think the difference in relative

culpability absolves those barred by § 1182(a)(9)(B)(i)(II) of

all culpability or leads to the inevitable conclusion that

Congress implicitly intended to waive inadmissibility for

those aliens. While we may question whether the policy

choices furthered by the BIA‟s interpretation of the statutory

scheme are wise, we remain mindful that “the place to resist

unwise or cruel legislation touching aliens is the Congress,

not th[e] [c]ourt[s].” Harisiades v. Shaughnessy, 342 U.S.

580, 598 (1952) (Frankfurter, J., concurring).

We believe the BIA‟s interpretation of the statutory

scheme is reasonable and consistent with Congress‟s intent.

See Herrera-Castillo, 573 F.3d at 1009. Under the ten-year

bar, an alien with a one-year period of unlawful presence in

the U.S. would not be eligible for consular admission and

inspection at all during the applicable bar period without a

waiver of inadmissibility. As explained by the BIA, the

provisions of § 1182(a)(9), including the ten-year bar, were

intended to deter aliens who had accrued unlawful presence

17

and then left the United States from later seeking admission.

Lemus-Losa, 24 I. & N. Dec. at 379. But the LIFE Act still

permits adjustment for an eligible alien who has accrued a

period of unlawful presence provided he or she does not

depart the United States before seeking admission. Although

this may sometimes lead to a harsh result, Congress has

provided some relief by granting the Attorney General

discretion to waive inadmissibility to accommodate family

unity in certain circumstances. 8 U.S.C. § 1182(a)(9)(B)(v).

We accord deference to the BIA‟s conclusion that “the

language and structure of the relevant statutes[,] along with

Congress‟s specific waivers in certain instances,” Herrera-

Castillo, 573 F.3d at 1009, best effectuates IIRIRA‟s goals,

Lemus-Losa, 24 I. & N. Dec. at 379, as well as the LIFE

Act‟s remedial purposes of lifting administrative burdens by

facilitating processing of aliens physically present in the

United States, and of promoting family unity, Briones, 24 I.

& N. Dec. at 360-61; Lemus-Losa, 24 I. & N. Dec. at 378.

Therefore we defer to the BIA‟s interpretation of the statutory

scheme.

B.

Cheruku also contends the DHS is equitably estopped

from denying her admission, or in the alternative, the BIA

erred in determining equitable retroactive relief was

unavailable to mitigate the harsh result of this case. Neither

argument has merit.

Cheruku contends the DHS should be estopped from

denying her admission because she was deceived into

believing the advanced parole would immunize her against a

later finding of inadmissibility. To prevail, Cheruku must

show that the DHS made a misrepresentation upon which she

18

reasonably relied to her detriment, and that the DHS engaged

in affirmative misconduct. See Mudric v. Att’y Gen., 469

F.3d 94, 99 (3d Cir. 2006). Regardless of how Cheruku

interpreted the advanced parole document, the words on the

document clearly stated:

If, after April 1, 1997, you were unlawfully

present in the United States for more than 180

days before applying for adjustment of status,

you may be found inadmissible under section

212(a)(9)(B)(i) of the Act when you return to

the United States to resume the processing of

your application. If you are found inadmissible,

you will need to qualify for a waiver of

inadmissibility in order for your adjustment of

status application to be approved.

The document explicitly warned Cheruku that by traveling on

the advanced parole, she may render herself inadmissible.10

Accordingly, she has failed to demonstrate any

misrepresentation or affirmative misconduct by DHS.

Cheruku was mistaken concerning the consequences of

departing the United States under her advanced parole. While

regrettable, this cannot form the basis of an equitable estoppel

claim.

10

Cheruku also appears to argue that the BIA should treat

travel on an advanced parole as if the travel never occurred.

The advanced parole clearly anticipates travel, as well as

possible effects on an alien‟s admissibility as a result of

travel. Cheruku cites no authority in support of her assertion,

and there is no basis for us to conclude that travel on an

advanced parole should be excused.

19

Nor can we say the denial of retroactive equitable

relief was in error. Retroactive relief, often referred to as

nunc pro tunc relief, has “long [been] employed by the

immigration authorities, based on what they believe to be

implied statutory authority to provide relief from the harsh

provisions of the immigration laws in sympathetic cases.”

See Gonzalez-Balderas v. Holder, 597 F.3d 869, 870 (7th Cir.

2010) (citing Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir.

2005); Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004)).

But the BIA has generally limited the grant of orders nunc

pro tunc to a few limited circumstances. It appears to have

granted such retroactive relief only to permit the exercise of

discretion to allow an alien to reapply for admission, to apply

the law as it existed when the alien violated the immigration

laws, Ramirez-Canales, 517 F.3d at 910, or to correct an error

in immigration proceedings, Edwards, 393 F.3d at 309.

Here, the BIA concluded nunc pro tunc relief was

unavailable based on its decision in In re Torres-Garcia, 23 I.

& N. Dec. 866, 876 (BIA 2006). In Torres-Garcia, the BIA

held that because the statutory provisions of § 1182(a)(9) of

the INA clearly delineate the limited conditions under which

the DHS has the discretion to grant waivers of

inadmissibility, grant of a de facto waiver not specified by

statute would be inconsistent with congressional intent. Id. at

874-76. Specifically, Torres-Garcia rejected the contention

that the waiver provision of 8 C.F.R. § 212.2 granted

discretion to waive inadmissibility under § 1182(a)(9)(C)(i).11

Id. at 876. This interpretation has been affirmed by circuits

that have considered the issue. See Gonzalez-Balderas, 597

11

As noted, §§ 1182(a)(9)(B) & (C) were both added to the

INA when Congress enacted IIRIRA.

20

F.3d at 869-71; Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir.

2008); Gonzales v. DHS, 508 F.3d 1227, 1241-42 (9th Cir.

2007).

Cheruku does not contend the regulations in 8 C.F.R. §

212.2 authorize the grant of a waiver. Nor does she contend

her case falls within any of the traditional categories for

which the BIA has granted nunc pro tunc relief. Rather, she

simply contends without support that the BIA could have

exercised equitable relief. But “[a] court may not award

equitable relief in contravention of the expressed intent of

Congress.” Edwards, 393 F.3d at 309 (citing INS v.

Pangilinan, 486 U.S. 875, 883-85 (1988)). As noted,

Cheruku was found inadmissible under § 1182(a)(9)(B)(i)(II).

Section 1182(a)(9)(B)(i)(II)(iii) delineates exceptions to

inadmissibility, and § 1182(a)(9)(B)(v) expressly sets forth

the conditions under which the DHS may waive

inadmissibility, which pertain exclusively to family unity.

Cheruku is not eligible for any statutory waiver to

inadmissibility since her adjustment application relies on her

work status rather than on any family connection.

Accordingly, because Congress clearly delineated the

situations in which the Attorney General may exercise

discretion to grant a waiver to inadmissibility under this

section, the BIA did not err in holding equitable nunc pro

tunc relief is foreclosed by the plain language of the statute.12

See Gonzalez-Balderas, 597 F.3d at 870 (“The statute is clear

and the Board‟s ruling correct . . . .”); Ramirez, 609 F.3d at

337 n.7 (rejecting without discussion petitioner‟s arguments

12

We note that even if there were ambiguity on this point, we

would find the BIA‟s interpretation to be reasonable.

21

that remand should be granted to remedy the BIA‟s denial of

nunc pro tunc relief).

IV.

For the foregoing reasons, we will affirm the judgment

of the BIA and deny the petition for review.

22

McKee, Chief Judge, concurring.

Although I agree that Cheruku is inadmissible for

adjustment of status under a strict interpretation of 8 U.S.C. §

1182(a)(9)(B)(i)(II) as explained by my colleagues, I write

separately because the result we must reach is as unjust as it

is unreasonable.1

Cheruku is an educated software engineer who is

employed and her employer is trying to help her remain in the

United States. (A.R. 66, 333). She is a highly skilled

professional who, according to her employer, is engaged in

“research, design, and develop[ment] [of] software and

programs for high tech medical, industrial, scientific,

financial business applications, lead[ing] teams of

programmers and systems analysts in projects,” and

“develop[ing] and direct[ing] systems testing procedures,

programming and documentation.” (A.R. 258). She has no

criminal record, nor can she be characterized as the type of

“recidivist immigration violator” that Congress appropriately

seeks to exclude from this country. 8 U.S.C. §

1182(a)(9)(C)(i).

Moreover, nothing on this record suggests that

Cheruku has done anything other than pay all applicable taxes

while employed here, and she clearly has a demonstrated skill

in a highly specialized field that this country needs to be

competitive in several important industries. (A.R. 263-69).

In addition, Cheruku’s continued presence in this country

does not portend any drain on social resources. In short, as

her employer’s affidavit suggests, she appears to be exactly

the kind of person the United States should welcome. (A.R.

258).

Cheruku did not enter the United States illegally.

Rather, she arrived on a visitor’s visa, and then re-entered the

country in 2002 pursuant to a grant of advanced parole.

1

According to the I-485 adjustment of status application, the

petitioner’s full name is “Shireesha Reddy Cheruku,” not

“Reddy Shireesha” as the IJ and BIA both stated in their

respective decisions. (A.R. 82, 86). We will therefore refer

to the petitioner by her last name, Cheruku.

1

Although she overstayed her original visa, she later made a

concerted effort to “play by the rules” by applying for

advanced parole with the assistance of counsel.

Ironically, it seems quite likely that Cheruku only left

the country in the first place because the United States gave

her permission to return. The Government now seeks to

remove her because she left the country after she applied for,

and received, a document from the Government explicitly

allowing her to leave. As the Immigration Judge quite

correctly observed, the advanced parole document she was

given was “at best a schizophrenic document,” because on

one hand “[i]t says we’re going to allow you to do something,

but then we might change our mind and not allow you to do it

or something like that. You can always leave, but you might

not be able to get back.” (A.R. 76).

Yet, as my colleagues explain, the statute says what it

says and it is not our job to rewrite what Congress has

decreed unless a literal application of the statute would “lead

to a patently absurd result that no rational legislature could

have intended.” Barrios v. Att'y Gen. 399 F.3d 272 (3d Cir.

2005). Although I do not think that is the general case here

and therefore do not dissent from the majority opinion, I

nevertheless think that as applied to Cheruku, the result we

reach today suggests the wisdom of Charles Dickens’

condemnation of the law that was uttered by Mr. Bumble in

Oliver Twist.2

The majority correctly points out that Cheruku was

technically placed on notice that her immigration status could

be in jeopardy if she left the country because of the warning

on her advanced parole document. That warning states:

NOTICE TO APPLICANT:

Presentation of this authorization will

permit you to resume your application

for adjustment of status upon your

2

Mr. Bumble is the despicable character in Oliver Twist who

said: “if the law supposes that, then the law is [absurd].”

Bumble’s actual quote is far more expressive and irreverent.

2

return to the United States. If your

adjustment application is denied, you

will be subject to removal proceedings

under section 235(b)(1) or 240 of the

Act. If after April 1, 1997, you were

unlawfully present in the United

States for more than 180 days before

applying for adjustment of status, you

may be found inadmissible under

section 212(a)(9)(B)(i) of the Act

when you return to the United States

to resume the processing of your

application. If you are found

inadmissible, you will need to quality

for a waiver of inadmissibility in order

for your adjustment of status

application to be approved.

I am not at all sure that someone who is born in the

United States and is fluent in English could comprehend this

warning. I am far less certain that someone in Cheruku’s

situation could. The language is confusing and ambiguous as

the Immigration Judge explained. The phrase: “presentation

of this authorization will permit you to resume your

application,” (emphasis added), leads one to believe that

Cheruku should indisputably have been able to pick up where

she left off with her adjustment of status application once she

returned to the United States. However, the warning then

states, “you may be found inadmissible” (emphasis added).

The latter implies that Cheruku may not be admissible under

some unknown statute, but just as equally implies that she

may very well be found admissible. The fact that “will”

precedes “may” could easily mislead a person to believe that

his/her adjustment of status would not be adversely affected

by a departure. The situation is further complicated by the

fact that there is no explanation of what section 235(b)(1) or

240 of the Act or section 212(a)(9)(B)(i) mean. Nor is there

any information about how these statutes could impact a

person’s adjustment of status application. As a matter of law,

Cheruku is, of course, charged with understanding the

convoluted and hyper technical language on the form she

received, but Mr. Bumble’s proclamation summarizes the

reality of the situation.

3

Nevertheless, although I am troubled by our decision

today, I am cautiously optimistic that our decision may not

foreclose Cheruku’s ability to remain here nor deprive this

country of her talents. On August 18, 2011, the Department

of Homeland Security issued a letter and accompanying

guidelines announcing that it plans to better focus its limited

resources on deporting a more select (and appropriate) group

of aliens. See DHS Letter to Senators Regarding Shift In

Policy on Immigration Enforcement (Aug. 18, 2011),

available at

http://www.ilw.com/immigrationdaily/news/2011,0819-

prosecutorialdiscretion.pdf. Cheruku is not in the class of

aliens that the Government's immigration efforts will be

focused on. Rather, DHS will now concentrate its resources

on “enhancing border security and identifying and removing

criminal aliens, those who pose a threat to public safety and

national security, repeat immigration law violators and other

individuals prioritized for removal.” Id. at 1. As part of this

new strategy, DHS has initiated an interagency working

group to “execute a case-by-case review of all individuals

currently in removal proceedings to ensure that they

constitute our highest priorities.” Id. at 2. I can only hope

that Cheruku will be afforded such review and that the result

will be favorable to her.

My optimism in that regard is buttressed by a

memorandum issued by U.S. Immigration and Customs

Enforcement proving guidance to “ICE” law enforcement

personnel and attorneys for the exercise of discretion in

removing aliens. See Memorandum Regarding Exercising

Prosecutorial Discretion Consistent with the Civil

Immigration Enforcement Priorities of the Agency (June 1,

2011), available at http://www.ice.gov/doclib/secure-

communities/pdf/prosecutorial-discretion-memo.pdf. Some

of the discretionary factors that ICE will consider include the

person’s criminal history or lack thereof, whether the person

is otherwise likely to be granted temporary or permanent

status or other relief from removal, and the person’s length of

presence in the United States. Although it is certainly not our

place to tell an administrative agency how to apply its

policies, I do note that it appears that Cheruku would qualify

for a favorable exercise of discretion under the new policy

4

given her lack of criminal background, her employer’s desire

that she continue working as a software engineer, and her

residence in the United States for the last 16 years.

As early as 1875, the Supreme Court discussed the

value that immigrants bring to this country’s work force. The

Court explained, “[i]n addition to the wealth which some of

them bring, they bring still more largely the labor which we

need to till our soil, build our railroads, and develop the latent

resources of the country in its minerals, its manufactures, and

its agriculture.” Henderson v. Mayor of City of New York, 92

U.S. 259, 270 (1875). Of course, times have changed greatly

since then. The time for building railroads has come and

gone and the need for manual labor is now dwarfed by the

need for expertise in the scientific and technological

disciplines.

Nevertheless, the Court’s original premise is just as

true today as it was 130 years ago. Indeed, given the rise of

the “global village,” the interdependent nature of “national”

economies, and the global competition in the marketplace, the

need for highly specialized expertise is perhaps even greater

now than the need for manual labor was when the Court made

its observation in Henderson.

Given the finite resources of law enforcement and

immigration officials, as well as overburdened immigration

dockets, it is my hope that the Department of Justice may yet

decide that Cheruku can remain in the United States and

continue to function as a contributing member of this society.

5