     Case: 15-60206    Document: 00513659975    Page: 1   Date Filed: 08/31/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                     Fifth Circuit

                                                                    FILED
                                 No. 15-60206                   August 31, 2016
                                                                 Lyle W. Cayce
                                                                      Clerk
J. GUMARO SANCHEZ ZERMENO, also known as J. Gumaro Sanchez, also
known as Gumaro Sanchez, also known as Juan Gumaro Sanchez Zermeno,

              Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

              Respondent




                         Petition for Review of an Order
                      of the Board of Immigration Appeals


Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Petitioner J. Gumaro Sanchez Zermeno (“Zermeno”), a native and citizen
of Mexico, seeks review of an order of the Board of Immigration Appeals (“BIA”)
upholding the Immigration Judge’s (“IJ”) denial of his applications for
adjustment of status and cancellation of removal. We DENY the petition.
                                      I.
      On August 1, 2012, Zermeno was issued a notice to appear for a charge
of removability as an alien present in the United States without being
admitted or paroled under Section 212(a)(6)(A)(i) of the Immigration and
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                                 No. 15-60206
Nationality Act (“INA”).     Zermeno conceded removability but applied for
adjustment of status under INA Section 245(i) and cancellation of removal
under INA Section 240A(b). The IJ concluded that Zermeno was barred from
adjustment    of   status   because   he     was   inadmissible    under    Section
212(a)(9)(C)(i)(I) and did not meet Section 212(a)(9)(C)(ii)’s exception to
inadmissibility. The IJ also concluded that she lacked authority to entertain
Zermeno’s request for permission to reapply for admission. Finally, the IJ
found that Zermeno was not eligible for cancellation of removal because he
failed to establish ten years’ continuous physical presence in the United States.
The IJ thus denied Zermeno’s applications and ordered Zermeno removed.
      Zermeno appealed to the BIA. The BIA agreed with the IJ that Zermeno
had not met the Section 212(a)(9)(C)(ii) exception to inadmissibility and that
there was no basis to grant nunc pro tunc relief to allow Zermeno to reapply
for admission. The BIA also concluded that the IJ’s finding that Zermeno failed
to establish ten years’ continuous physical presence was not clearly erroneous.
The BIA dismissed Zermeno’s appeal. Zermeno timely petitioned for review.
                                       II.
      Generally, we review only the final decision of the BIA. Ojeda-Calderon
v. Holder, 726 F.3d 669, 672 (5th Cir. 2013). When, as here, the IJ’s ruling
affected the BIA’s decision, we also review the IJ’s decision. Id. “The BIA’s
conclusions of law are reviewed de novo, although deference is given to the
BIA’s interpretation of immigration regulations if that interpretation is
reasonable.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014).
We review “factual findings for substantial evidence, and we may not overturn
the BIA’s factual findings unless the evidence compels a contrary conclusion.”
Ojeda-Calderon, 726 F.3d at 672–73.




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                                        III.
      “Section 245 of the INA provides for the ‘[a]djustment of status of
nonimmigrant to that of person admitted for permanent resident.’” Sattani v.
Holder, 749 F.3d 368, 371 (5th Cir. 2014) (alteration in original) (quoting 8
U.S.C. § 1255). Section 245(i) “provides that ‘an alien physically present in the
United States who entered the United States without inspection[,] or is within
one of the classes enumerated in subsection (c) of this section . . . may apply to
the Attorney General for the adjustment of his or her status to that of an alien
lawfully admitted for permanent residence.’”             Id. (quoting 8 U.S.C.
§ 1255(i)(1)(A)-(C)). Section 245(i) allows for adjustment of status if, inter alia,
“the alien is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence.” Id. (emphasis omitted) (quoting 8
U.S.C. § 1255(i)(2)(A)).    Because eligibility for visas and admissibility is
governed by Section 212(a) of the INA, “an applicant for adjustment of status
under INA § 245(i) must establish that she is ‘not inadmissible under any of
the various paragraphs of [§] 212(a) . . . or that [she is] eligible for a waiver of
any applicable ground of inadmissibility.’” Id. (alterations and omission in
original) (quoting Matter of Lemus-Losa, 25 I. & N. Dec. 734, 736 (BIA 2012)).
      Under Section 212(a)(9)(C)(i)(I) of the INA, “[a]ny 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.”      8 U.S.C. § 1182(a)(9)(C)(i)(I).     The BIA
concluded that Zermeno is inadmissible under this section. Zermeno does not
dispute that he was unlawfully in the United States for more than one year
and that he then reentered the country. Instead, Zermeno contends that the
BIA erred in concluding that he did not meet the Section 212(a)(9)(C)(ii)
exception to permanent inadmissibility and that nunc pro tunc relief was
unavailable.
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      Zermeno asserts that he is eligible for adjustment of status because he
falls into the exception to Section 212(a)(9)(C)(i)(I), which provides:
     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)(ii). As an initial matter, the BIA agreed with the IJ’s
finding that Zermeno did not obtain consent to reapply for admission from the
Secretary of Homeland Security. This finding is not disputed.
      Notwithstanding his failure to obtain the Secretary of Homeland
Security’s consent, Zermeno contends that the IJ could have granted him nunc
pro tunc permission to reapply for admission because ten years had elapsed
from his previous unlawful entry. The BIA relied on In re Torres-Garcia, 23 I.
& N. Dec. 866 (BIA 2006), to conclude that Zermeno did not meet the Section
212(a)(9)(C)(ii) exception to inadmissibility.    Zermeno argues that Torres-
Garcia, which held that an alien must be outside the United States for at least
ten years before reapplying for admission under Section 212(a)(9)(C)(ii), is not
entitled to deference and is distinguishable.
      This issue implicates a legal matter, the statutory interpretation of
Section 212(a)(9)(C)(ii). We review the BIA’s interpretation of the INA de novo,
but we give “considerable deference to the BIA’s interpretation of the
legislative scheme it is entrusted to administer.” Mercado v. Lynch, 823 F.3d
276, 278 (5th Cir. 2016) (citation and internal quotation marks omitted).
Because the BIA relied upon Torres-Garcia in holding that an alien must be
outside the United States for ten years to be eligible for the Section
212(a)(9)(C)(ii) exception to inadmissibility, we apply the Chevron two-part
inquiry to our review of this issue. See Siwe v. Holder, 742 F.3d 603, 607 n.24
(5th Cir. 2014). Under Chevron, we must first determine “whether Congress
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                                  No. 15-60206
has directly spoken to the question at issue.” Orellana-Monson v. Holder, 685
F.3d 511, 517 (5th Cir. 2012). “If so, the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.” Id. But, “[i]f not,
the court must determine whether the agency’s answer is based on a
permissible construction of the statute.”             Id.   “Courts give agency
interpretations ‘controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.’” Id. (quoting Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).
      Section 212(a)(9)(C)(ii)’s exception to inadmissibility provides that
Section 212(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 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)(ii). The BIA has interpreted this provision as requiring
an alien to remain outside the United States for at least ten years. Torres-
Garcia, 23 I. & N. Dec. at 875 (concluding that Section 212(a)(9)(C)(ii) applies
“only after the alien has been outside the United States for ten years” (quoting
Berrum–Garcia v. Comfort, 390 F.3d 1158, 1167 (10th Cir. 2004))); see also
Mortera-Cruz v. Gonzales, 409 F.3d 246, 250 n.4 (5th Cir. 2005) (stating that
prior version of Section 212(a)(9)(C)(ii) applies to “an alien who has been
outside the United States more than 10 years since his or her last departure”).
      We defer to the BIA’s interpretation in Torres-Garcia because it is based
on a permissible construction of Section 212(a)(9)(C)(ii). This exception applies
when it has been “more than 10 years after the date of the alien’s last departure
from the United States.” 8 U.S.C. § 1182(a)(9)(C)(ii). The BIA’s interpretation
of this section as requiring the alien to remain outside the United States for
ten years is consistent with the statutory language.         In fact, the statute
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requires an alien to wait ten years after departing the United States and then
seek the Secretary of Homeland Security’s consent prior to returning. “If ten
years must elapse between departure and return, then it necessarily follows
that those ten years must be spent outside the United States.” Carrillo de
Palacios v. Holder, 708 F.3d 1066, 1074 (9th Cir. 2013).
      The BIA and our sister circuits have all concluded that Section
212(a)(9)(C)(ii) requires the alien to be absent from the United States more
than ten years before applying to the Secretary of Homeland Security. See id.
at 1073; Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir. 2008) (holding that
Section 212(a)(9)(C)(ii) “requires that [an alien] seek permission to reapply for
admission from outside of the United States after ten years have passed since
his most recent departure from the United States”); Fernandez-Vargas v.
Ashcroft, 394 F.3d 881, 885 (10th Cir. 2005) (noting that an alien may seek
Section 212(a)(9)(C)(ii) relief only after “the completion of an unwaivable ten-
year period outside of the United States”); see also Torres-Garcia, 23 I. & N.
Dec. at 876. We see no compelling reason to depart from this unanimous view.
      Zermeno’s suggestion that the BIA’s interpretation of Section
212(a)(9)(C)(ii) in Torres-Garcia creates a statutory redundancy is meritless.
The relevant language provides that the alien must receive the Secretary of
Homeland Security’s consent “prior to the alien’s reembarkation at a place
outside the United States or attempt to be readmitted from a foreign
contiguous territory.” 8 U.S.C. § 1182(a)(9)(C)(ii) (emphasis added). Zermeno
insists that it would be “contrary to the plain language of the statute” for both
of these provisions to apply to an alien outside the United States. We are not
persuaded. The latter provision may narrowly be read to apply to aliens in
Canada or Mexico while the former applies to aliens seeking to enter from




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                                      No. 15-60206
virtually any other foreign territory. 1 See Carrillo de Palacios, 708 F.3d at
1074 (concluding that “ten years must elapse between the time the alien
‘depart[s]’ the United States and the time the alien ‘reembark[s]’ or otherwise
returns to the United States” (alterations in original) (emphasis omitted)).
       One final point. Zermeno contends that Torres-Garcia is inapposite
because there the petitioner sought Section 212(a)(9)(C)(ii) relief before the
requisite ten years had elapsed. But here, however, more than ten years have
elapsed since Zermeno’s 2003 departure and his 2004 reentry. This distinction
makes no difference; allowing aliens to seek Section 212(a)(9)(C)(ii) relief from
inside the United States after returning unlawfully is at odds with the
congressional policy underlying Section 212(a)(9)(C). The BIA has explained
that “[t]he purpose of [Section 212(a)(9)(C)] was to single out recidivist
immigration violators and make it more difficult for them to be admitted to the
United States after having departed.” In re Briones, 24 I. & N. Dec. 355, 358
(BIA 2007). An unwaivable ten-year period outside the United States for such
immigration recidivists accomplishes this goal. We thus decline to interpret
Section 212(a)(9)(C)(ii) such that it “allow[s] an alien to circumvent the
statutory 10-year limitation on section 212(a)(9)(C)(ii) waivers by simply
reentering unlawfully before requesting the waiver.” Torres-Garcia, 23 I. & N.
Dec. at 876 (noting that such an interpretation “plac[es the petitioner] in a
better position by asking forgiveness than he would have been in had he asked
permission”). Instead, “requiring repeat immigration offenders to pay the

       1 Zermeno also suggests that Torres-Garcia is “suspect” because it ignores a provision
of the Violence Against Women and Department of Justice Reauthorization Act of 2005
(“VAWA”). Section 813(b) of the VAWA provided that “[t]he Secretary of Homeland Security,
the Attorney General, and the Secretary of State shall continue to have discretion to consent
to an alien’s reapplication for admission after a previous order of removal, deportation, or
exclusion.” Pub.L. No. 109–162, 119 Stat. 2960 (enacted Jan. 5, 2006). That provision,
however, was later removed by statutory amendment. We agree with the Seventh Circuit
that this provides no basis to reject Torres-Garcia. See Nunez-Moron v. Holder, 702 F.3d 353,
357 n.8 (7th Cir. 2012); see also Delgado, 516 F.3d at 73–74.
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                                      No. 15-60206
penalty of waiting ten years outside the United States before receiving the
privilege of lawful reentry . . . promotes Congress’s underlying policy goals of
making admission more difficult for immigration recidivists.”                 Carrillo de
Palacios, 708 F.3d at 1074.
       In sum, we defer to the BIA’s interpretation of Section 212(a)(9)(C)(ii) in
Torres-Garcia. Though ten years have elapsed since Zermeno’s last departure
from the United States, he failed to remain outside the United States for ten
years before returning to the United States. Accordingly, he does not meet
Section 212(a)(9)(C)(ii)’s exception to inadmissibility. 2
                                            IV.
       Zermeno’s final challenge is that the BIA erred in finding that he was
ineligible for cancellation of removal. To be eligible for cancellation of removal,
an alien must demonstrate, inter alia, ten years’ continuous physical presence
in the United States. 8 U.S.C. § 1229b(b)(1)(A); see also Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 214 (5th Cir. 2003). The BIA agreed with the IJ’s
factual finding that Zermeno had not established ten years’ continuous
physical presence for the relevant time period, here, from 2002 through 2012,
noting that Zermeno’s testimony “indicates that he was absent from the United
States for a period of six months to one year prior to his last arrival in 2004.”
We review this factual determination under the substantial evidence standard.
Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003).
       Zermeno testified that he entered the United States in 2002, voluntarily
returned to Mexico in 2003, and last entered the United States in July 2004.
Zermeno testified that he could not “exactly” remember how long he was absent
from the United States between 2003 and 2004, but his testimony indicated


       2Because Zermeno does not meet the statutory requirement that he remain outside
the United States for ten years, we need not decide whether the IJ had jurisdiction to grant
nunc pro tunc permission to reapply for admission.
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                                 No. 15-60206
that it was at least six months to one year. Though Zermeno insists that his
own testimony was “uncertain” and that the Government lacked an official
record of a voluntary departure, he has not provided evidence of continuous
physical presence “so compelling that no reasonable factfinder could conclude
against it.” Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016).
                                       V.
      The petition for review is DENIED.




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