                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GREGORIO PEREZ-GONZALEZ,                    
                       Petitioner                   No. 02-73294
               v.
                                                    Agency No.
                                                    A79-766-957
ALBERTO GONZALES,* Attorney
General,                                              ORDER
                    Respondent.
                                            
                        Filed April 18, 2005

    Before: Dorothy W. Nelson, Raymond C. Fisher, and
             Ronald M. Gould, Circuit Judges.

                               Order;
                      Dissent by Judge Gould


                               ORDER

  The government’s Motion to Reconsider filed on February
7, 2005, is hereby DENIED. Judge Gould’s Dissent from
Denial of Motion to Reconsider is attached hereto.

  SO ORDERED.




  *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).

                                 4209
4210                 PEREZ-GONZALEZ v. GONZALES
GOULD, Circuit Judge, dissenting from the order denying
motion to reconsider:

   I would follow the holding of the Tenth Circuit in Berrum-
Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004), and deny
the petition. Berrum-Garcia criticizes the majority’s holding
that 8 C.F.R. § 212.2 permits persons previously removed or
deported, who illegally reenter the United States, to seek per-
mission to reapply for admission from within the United
States. Berrum-Garcia points out, and I agree, that the major-
ity decision is inconsistent with the plain language of INA
§ 212(a)(9)(C)(ii), which requires “aliens who illegally reen-
ter the country after having been removed or deported” to
“first exit the United States and wait ten years before applying
for an I-212 waiver” while still outside the country.1 Berrum-
Garcia, 390 F.3d at 1166.

   The majority offers two reasons for looking to 8 C.F.R.
§ 212.2 instead of INA § 212(a)(9)(C)(ii) in assessing whether
Perez-Gonzalez’s application for an I-212 waiver was valid.
The majority first asserts that it is necessary for us to regard
8 C.F.R. § 212.2 as controlling because this is the only way
we can reconcile alleged conflicts between INA § 245(i) and
INA § 212. See Maj. Op. at 791 (“[I]t is illogical to conclude
that § 245(i) awarded illegal entrants the right to apply for
adjustment of status, but then made it statutorily impossible
for the Attorney General to grant it to them because they
would never be considered admissible under the provisions of
INA § 212.”); Maj. Op. at 793-94; Maj. Op. at 795-96 (“The
   1
     INA § 212(a)(9)(C)(ii) states that § 212(a)(9)(C)(i)’s life-time inadmis-
sibility provision, which covers previously removed or deported aliens:
    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 terri-
    tory, the Attorney General has consented to the alien’s reapplying
    for admission.
                  PEREZ-GONZALEZ v. GONZALES                4211
statutory provisions in § 241(a)(5), § 245(i), and § 212(a)
should be read to harmonize with one another . . . .”).

   I disagree because there is no necessary conflict between
INA § 245(i) and § 212(a)(9)(C), which is the subsection of
§ 212 that specifically covers “Aliens previously removed,”
like Perez-Gonzalez, who have “crossed the border and are
currently living in the country without lawful status.” Maj.
Op. at 794 n.9. INA § 245(i) provides that an alien physically
present in the United States after entering without inspection
may apply for adjustment of status if: (1) the alien is the bene-
ficiary of a petition or an application for labor certification
filed on or before April 30, 2001; (2) the alien pays a $1,000
fee; (3) the alien is eligible to receive an immigrant visa; (4)
the alien is “admissible,” as defined by INA § 212; and (5) an
immigrant visa is immediately available to the alien at the
time the application is filed. INA § 245(i)(1)-(2); Maj. Op. at
790-91. Section 212(a)(9)(C) in turn provides that aliens like
Perez-Gonzalez, who illegally reenter the country after having
been removed or deported are inadmissible, and therefore
ineligible for § 245(i) adjustment of status, unless they apply
for and receive an I-212 waiver under § 212(a)(9)(C)(ii),
which as noted above, they cannot do from within the United
States.

   A straightforward application of these two provisions,
which can rationally be read together without conflict, leads
to the conclusion that Perez-Gonzalez cannot qualify for
adjustment of status under the plain language of § 245(i)
because he is inadmissible under § 212(a)(9)(C). That Perez-
Gonzalez applied for an I-212 waiver does not save him from
§ 212(a)(9)(C)’s bar to admissibility because he did not com-
ply with § 212(a)(9)(C)(ii), which requires that such applica-
tions be filed from outside the United States before reentry.
Where then, is the statutory conflict that prevents us from
affirming the INS’ determination that Perez-Gonzalez is ineli-
gible for a § 245(i) adjustment because he is inadmissible
under § 212(a)(9)(C)? There is none.
4212             PEREZ-GONZALEZ v. GONZALES
   In my view, the conflict we must address is that between
INA § 212 and 8 C.F.R. § 212.2, when the regulation is given
the unduly broad interpretation urged by the majority. It is
well-settled that a “regulation cannot be interpreted indepen-
dently of the statute under which i[t] was promulgated,” and
that “[w]hile regulations may impose additional or more spe-
cific requirements, they cannot eliminate statutory require-
ments.” Hunsaker v. Contra Costa County, 149 F.3d 1041,
1043 (9th Cir. 1998). The majority errs by “considering only
the language of the regulations without acknowledging the
requirements imposed by the relevant statutory language.” Id.

   When one considers that INA § 212(a)(9)(C)(ii) states that
aliens previously removed or deported must apply for waivers
from inadmissibility prior to “reembarkation at a place outside
the United States or attempt to be readmitted from a foreign
contiguous territory,” the incongruity of interpreting 8 C.F.R.
§ 212.2 to permit such aliens to obtain a waiver under more
lax procedures is apparent. The majority erroneously treats 8
C.F.R. § 212.2 as an independent authority for I-212 waivers,
separate from INA § 212 itself, see Maj. Op. at 794 n.10,
when 8 C.F.R. § 212.2 is an agency regulation that imple-
ments INA § 212.

   In Berrum-Garcia, the Tenth Circuit reconciled 8 C.F.R.
§ 212.2 with INA § 212 by asserting that the regulation was
ambiguous because it “only implies that some aliens illegally
present in the United States may apply for an I-212 waiver
without leaving the country; it does not explicitly extend that
privilege to aliens who have illegally reentered the country
after a prior deportation or removal.” 390 F.3d at 1167. Scru-
tinizing the language of INA § 212 and the legislative history
and language of the LIFE Act, the Tenth Circuit resolved this
ambiguity in favor of the government, concluding that only
“ ‘first-time’ illegal aliens who are unlawfully in the United
States without having been previously ordered removed or
deported” can apply for a waiver under the regulation,
whereas aliens like Perez-Gonzalez “who have illegally reen-
                 PEREZ-GONZALEZ v. GONZALES               4213
tered the country in defiance of a prior removal order” cannot.
Id. at 1167-68.

   I conclude that the Tenth Circuit’s narrowing construction
of the regulation is reasonable, and prefer its moderate
approach to the more drastic alternative of invalidating the
regulation because it conflicts with the plain language of the
statute it is meant to implement. See Portland Audubon Soc’y
v. Endangered Species Comm., 984 F.2d 1534, 1543 n.21 (9th
Cir. 1993) (“Regulations that are inconsistent with the provi-
sions of the act they implement cannot stand.”).

   The Tenth Circuit’s approach is appropriate because the
government never challenged 8 C.F.R. § 212.2’s validity, but
rather argued that the majority had erred in interpreting the
regulation too broadly. The government pointed out that the
regulation predates IIRIRA and the enactment of INA
§ 212(a)(9)(C), and asserted that the majority’s reading of the
regulation extends 8 C.F.R. § 212.2 beyond the scope of INA
§ 212 as amended by IIRIRA. Given that no challenge was
made to the regulation’s validity, a court should hesitate to
strike it down in the face of the general principles that duly
noticed agency regulations are presumed valid and that a
heavy burden must be met by those who would overturn
them. See Boske v. Comingore, 177 U.S. 459, 470 (1900)
(“Those who insist that . . . a regulation is invalid must make
its invalidity so manifest that the court has no choice except
to hold that the Secretary has exceeded his authority and
employed means that are not at all appropriate to the end
specified in the act of Congress.”); Ramirez v. INS, 550 F.2d
560, 563 (9th Cir. 1977) (“[T]he Supreme Court places a
heavy burden on those who would overturn an administrative
regulation.”); United States v. Boyd, 491 F.2d 1163, 1167 (9th
Cir. 1973) (“Where a statute specifically delegates to an
administrative agency the power to make rules [as 8 U.S.C.
§ 1103 does here], courts recognize a presumption that such
rules, when duly noticed, are valid.”). Instead, there is no
judicial impediment to our proceeding down the path urged
4214              PEREZ-GONZALEZ v. GONZALES
by the government and adopted by the Tenth Circuit, giving
the regulation a narrowing construction that permits it to stand
alongside the statute it implements.

   The majority also suggests that its broad reading of 8
C.F.R. § 212.2 is necessary to give weight to Congress’ goal
in enacting INA § 245(i) of allowing “spouses, children, par-
ents and siblings of permanent residents or U.S. citizens [to]
be able to adjust their status in the U.S. and avoid needless
separation from their loved ones.” Maj. Op. at 793 (alterna-
tion in original) (quoting Joint Memorandum, Statement of
Senator Kennedy, 146 Cong. Rec. S11850-52 (daily ed. Dec.
15, 2000)). I agree that Congress enacted § 245(i) to help
keep families together, a laudable goal that all can value.
However, reading the regulation as it does, the majority disre-
gards another of Congress’ important immigration policies,
which is to “expedit[e] the process of removing illegal
aliens.” Berrum-Garcia, 390 F.3d at 1163; see also S. Rep.
No. 104-249, at 2 (1996) (stating that the amendments are “in-
tended . . . to increase control over immigration . . . expediting
the removal of excludable and deportable aliens”); id. at 7
(“Aliens who violate U.S. immigration law should be
removed from this country as soon as possible.”); H.R. Rep.
No. 104-469, at 13 (1996) (explaining that IIRIRA was
designed to “assure removal and prevent further reentry” and
that aliens who “seek reentry . . . are subject to immediate
removal under the prior order”); id. at 107-08 (noting that pre-
IIRIRA procedures were “cumbersome and duplicative”).

   In considering whether a regulation is permissible in light
of the statute it implements, “we look not only at the precise
statutory section in question, but analyze the provision in the
context of the governing statute as a whole, presuming con-
gressional intent to create a ‘symmetrical and coherent regula-
tory scheme.’ ” Morales-Izquierdo v. Ashcroft, 388 F.3d
1299, 1303 (9th Cir. 2004). Thus, in interpreting 8 C.F.R.
§ 212.2, we must be mindful not only of the congressional
                    PEREZ-GONZALEZ v. GONZALES                       4215
policy underlying INA § 245(i), but also of the policies under-
lying other sections of the INA, such as § 212(a)(9)(C).

   Berrum-Garcia’s approach enables us to read INA § 212
and 8 C.F.R. § 212.2 in a way that reasonably accommodates
both of Congress’ policy goals, not just the family unity goal
championed by the majority. INA § 212(a)(9)(C) provides
that aliens previously removed or deported are inadmissible,
thereby paving the way for the government expeditiously to
remove them, but at the same time, § 212(a)(9)(C)(ii) sets
forth procedures permitting such aliens to apply for a discre-
tionary waiver from inadmissibility.2

   I respectfully dissent.




  2
    Although the requirements in § 212(a)(9)(C)(ii) are stringent, Congress
designed them to be commensurate with the degree of the immigration
offense committed by the aliens subject to inadmissibility under subsec-
tion (C), which covers the most serious grounds for inadmissibility in INA
§ 212(a)(9). In contrast, lesser offenders who fall within § 212(a)(9)(A)
because they were deported immediately upon their arrival to the United
States can apply for the same waiver under § 212(a)(9)(A)(iii) without
having to wait ten years, but even they have to apply for the waiver “prior
to [their] reembarkation at a place outside the United States or attempt to
be readmitted from a foreign contiguous territory.”
                               PRINTED FOR
                     ADMINISTRATIVE OFFICE—U.S. COURTS
                      BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                              © 2005 Thomson/West.
