Olga Figueredo Cardenas v. Eric H. Holder, Jr.

Filing 920090724


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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0511n.06 No. 08-4388 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 24, 2009 LEONARD GREEN, Clerk OLGA FIGUEREDO CARDENAS, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW FROM A DECISION OF THE BOARD OF IMMIGRATION APPEALS Before: BOGGS, Chief Judge; BATCHELDER and COOK, Circuit Judges. COOK, Circuit Judge. Petitioner Olga Figueredo Cardenas, a native and citizen of Paraguay, appeals the decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge, who found Figueredo Cardenas inadmissible and denied her application for adjustment of status to lawful permanent resident. We affirm. I. Figueredo Cardenas first entered the United States in 1990, but remained beyond the expiration of her visa. Once apprehended, the Immigration and Naturalization Service ("INS") placed her into deportation proceedings and she departed in 1991 under a grant of voluntary departure. But Figueredo Cardenas returned in 1994, entering the country without an inspection. No. 08-4388 Cardenas v. Holder Again the INS commenced removal proceedings, and again Figueredo Cardenas accepted the privilege of voluntary departure. She returned to Paraguay in April 2001, but re-entered the United States--again without inspection--some four months later. Immigration authorities commenced the current removal proceedings in June 2005, charging Figueredo Cardenas with violating 8 U.S.C. 1182(a)(6)(A)(i) (providing that any alien present in the United States without being admitted or paroled is removable) and 8 U.S.C. 1182(a)(9)(C)(i)(I) (providing that any alien unlawfully present in the United States for longer than one year, and who entered without being admitted, is removable). Figueredo Cardenas conceded removability under both charges. Figueredo Cardenas sought to avoid removal by adjusting her status to that of a lawful permanent resident, pursuant to 8 U.S.C. 1255(i), and by seeking a waiver of inadmissibility and permission to reapply for admission after removal. The Immigration Judge, however, noted that a petitioner who is removable under 1182(a)(9)(C)(i) remains inadmissible and ineligible for a waiver unless she remains outside the United States for more than 10 years from the date of her last departure. 8 U.S.C. 1182(a)(9)(C)(ii); Matter of Torres-Garcia, 23 I. & N. Dec. 866, 873 (BIA 2006). The Immigration Judge concluded that Figueredo Cardenas could not adjust her status and declined her other applications. The BIA affirmed. II. We review questions of law concerning immigration proceedings de novo. Ramirez-Canales v. Mukasey, 517 F.3d 904, 907 (6th Cir. 2008). Where, as here, the BIA affirms the Immigration -2- No. 08-4388 Cardenas v. Holder Judge's decision while adding its own comments, we review both decisions. See Elias v. Gonzales, 490 F.3d 444, 449 (6th Cir. 2007). An alien cannot qualify for an adjustment of status under 1255(i) if that alien is inadmissible. 8 U.S.C. 1255(i)(2)(A); see also Matter of Briones, 24 I. & N. Dec. 355, 362 (BIA 2007). Figueredo Cardenas conceded inadmissibility under 1182(a)(9)(C)(i). She can only cure that inadmissibility--and thus become eligible for a status adjustment--by seeking admission at least 10 years after the date of her last departure from the United States. 8 U.S.C. 1182(a)(9)(C)(ii). Inadmissibility does not always bar an alien from applying for an adjustment of status. The BIA interprets the interplay between 1255(i) and 1182(a)(6) to create a narrow exception to certain inadmissibility provisions. For example, an alien who entered the United States without an inspection, and is thus inadmissible under 1182(a)(6)(A)(i), may seek a status adjustment. Matter of Briones, 24 I. & N. Dec. at 365. But this exception does not extend to recidivist immigration violators--like Figueredo Cardenas--who are inadmissible under 1182(a)(9)(C)(i). Id. at 37071; Matter of Torres-Garcia, 23 I. & N. Dec. at 873. Figueredo Cardenas urges us to reject the BIA's interpretation of 1182(a)(9)(C)(i)(I) and instead follow a Ninth Circuit decision, Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which would permit her to seek a nunc pro tunc waiver of her illegal entry and thereby permit her to apply for an adjustment of status. But after the BIA decision in Matter of Torres-Garcia, the Ninth Circuit reversed course, holding in Gonzales v. Dep't. of Homeland Sec., 508 F.3d 1227, 1242 -3- No. 08-4388 Cardenas v. Holder (9th Cir. 2007), that "we are bound by the BIA's interpretation of the applicable statutes in In re Torres-Garcia, even though that interpretation differs from our prior interpretation in PerezGonzalez." And moreover, the BIA's interpretation of 1182(a)(9)(C)(i)(I) is the law of this circuit. Ramirez-Canales, 517 F.3d at 910 (according Chevron deference to Matter of Briones's holding that alients who are inadmissible under 8 U.S.C. 1882(a)(9)(C)(i)(I) are ineligible for an adjustment of status pursuant to 8 U.S.C. 1225(i), and applying Matter of Torres-Garcia's holding that inadmissibility under 1182(a)(9)(C) may not be waived nunc pro tunc). Ramirez-Canales disposes of Figueredo Cardenas's claim, and she makes no effort to avoid its application beyond asking that we reconsider its outcome. Consequently, Figueredo Cardenas cannot adjust her status. III. We affirm the BIA's decision. -4-

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