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Maria Matilde Carrillo De Palacios v. Eric H. Holder Jr.

June 21, 2011

MARIA MATILDE CARRILLO DE PALACIOS, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A026-630-010

The opinion of the court was delivered by: M. Smith, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted January 11, 2011-Seattle, Washington

Before: Susan P. Graber and Milan D. Smith, Jr., Circuit Judges, and Roger T. Benitez,*fn1 District Judge.

Opinion by Judge Milan D. Smith, Jr.

OPINION

Petitioner Maria Matilde Carrillo de Palacios (Carrillo de Palacios) petitions for review of a decision of the Board of Immigration Appeals (BIA). The BIA determined that Carrillo de Palacios is ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i), because she is inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. § 1182(a)(9)(C)(i), and is not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).

We deny the petition, as the BIA correctly concluded that Carrillo de Palacios returned to the United States after having been "unlawfully present in the United States for an aggregate period of more than 1 year," which renders her inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). We reject her argument that the § 1182(a)(9)(C)(i)(I) one-year period of unlawful presence must occur after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, § 309(a), 110 Stat. 3009-546, 3009-625, reprinted in 8 U.S.C. § 1101 note, at 35 (2006) (Effective Date of 1996 Amendments). The BIA also correctly concluded that she does not satisfy the requirements of 8 U.S.C. § 1182(a)(9)(C)(ii)'s exception to inadmissibility. We hold that in order to be eligible under 8 U.S.C. § 1182(a)(9)(C)(ii), an alien must remain outside the United States for more than ten years before returning to the United States.

FACTUAL AND PROCEDURAL BACKGROUND

Carrillo de Palacios is a native and citizen of Mexico. The Government instituted removal proceedings against her in 2005, alleging that she had entered the United States without being admitted or paroled, and therefore was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). She conceded removability and sought to adjust her status to that of a lawful permanent resident under 8 U.S.C. § 1255(i). The Government opposed the adjustment-of-status application on the ground that she had been deported in December 1984 and subsequently reentered the country without permission in 1992 and 1997.

The immigration judge granted the adjustment-of-status application, concluding that cases such as Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), provided the judge authority to "cure the prior deportation and subsequent illegal return." The BIA then reversed in an unpublished decision, holding in relevant part that Carrillo de Palacios was inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i), that she did not qualify for the exception to inadmissibility under 8 U.S.C. § 1182(a)(9)

(C)(ii), and that, as a result, she was not eligible for adjustment of status under 8 U.S.C. § 1255(i). The BIA accordingly ordered her removed.

JURISDICTION AND STANDARD OF REVIEW

Because the BIA's decision was issued in 2009, our review is governed by the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231. When addressing adjustment-of-status issues contained in final orders of removal, we have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D). Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1084 (9th Cir. 2010). We review those questions of law de novo. Id. at 1086 n.9.

DISCUSSION

I. Statutory Framework

[1] To obtain adjustment of status under INA section 245(i), an alien must be "admissible to the United States for permanent residence." 8 U.S.C. § 1255(i)(2)(A). Aliens who are inadmissible under INA section 212(a)(9)(C), 8 U.S.C. § 1182(a)(9)(C), are ineligible for adjustment of status. That provision, ...


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