07-3194-ag
Mora v. Mukasey


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        August Term 2007


          Argued: June 2, 2008                                       Decided: December 16, 2008


                                      Docket No. 07-3194-ag

                           _____________________________________

                            JUAN MORA and GUILLERMINA MORA

                                            Petitioners,

                                                -v.-

                                    MICHAEL B. MUKASEY,
                United States Attorney General, United States Department of Justice,

                                         Respondent.
                           _____________________________________

Before:           McLAUGHLIN, SACK, LIVINGSTON, Circuit Judges.

          Petition for review of a Board of Immigration Appeals decision affirming an Immigration

Judge’s denial of applications for adjustment of status.

          Denied.

                                       ROBERT C. ROSS, ESQ., West Haven, CT, for Petitioners.

                                       BRIENA L. STRIPPOLI (Jennifer Lightbody, on the brief),
                                       Office of Immigration Litigation, United States Department
                                       of Justice, for Jeffrey S. Bucholtz, Acting Assistant Attorney
                                       General, United States Department of Justice, Washington,
                                       D.C., for Respondent.
LIVINGSTON, Circuit Judge:

       Petitioners Juan and Guillermina Mora, citizens of Mexico, petition for review of a June 26,

2007 decision of the Board of Immigration Appeals (“BIA”) affirming the May 2, 2006 decision of

Immigration Judge (“IJ”) Michael Straus denying their applications for adjustment of status and

ordering them to depart the country voluntarily by a specified date, or else become subject to a final

order of removal. The petition raises the question whether aliens who are inadmissible under 8

U.S.C. § 1182(a)(9)(C)(i)(I) because they entered the United States unlawfully after accruing more

than a year of prior unlawful presence are foreclosed from adjusting their status under 8 U.S.C. §

1255(i) on the basis of approved immigrant visa applications. The BIA determined in In re Briones,

24 I. & N. Dec. 355 (BIA 2007), that they are. Because we conclude that the Briones decision

interpreted ambiguous provisions of the immigration laws in a reasonable way, we must defer to it

pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

and therefore deny the petition.



                                         BACKGROUND

       Juan and Guillermina Mora entered the United States unlawfully in 1994 and 1999

respectively. They left the country together for a trip to Tlapanala, Mexico in April 2002, got married

there, and reentered the United States without inspection a month later.

       In August 2005, the Moras were served with Notices to Appear charging them with being

removable under 8 U.S.C. § 1182(a)(6)(A)(i) because they entered the country without being

admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States without

being admitted or paroled, or who arrives in the United States at any time or place other than as

designated by the Attorney General, is inadmissible.”). The Moras appeared before an IJ and


                                                  2
admitted the factual allegations in the Notices to Appear. Specifically, Juan Mora admitted in an

affidavit that he unlawfully entered the country in 1994, left for Mexico in 2002, and then returned

a month later, entering unlawfully for a second time. Based on an approved worker visa petition in

Juan’s name with a priority date of April 27, 2001, however, Juan moved to adjust his status to that

of an alien lawfully admitted for permanent residence, and Guillermina moved for derivative

adjustment of status as Juan’s wife. In the alternative, the Moras sought cancellation of removal or

voluntary departure.

       The IJ found that Juan was inadmissible under 8 U.S.C. § 1182(a)(9)(B) because he had

departed the United States for Mexico and reentered the country unlawfully in 2002. See 8 U.S.C.

§ 1182(a)(9)(B)(i)(II) (rendering inadmissible an 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”). Based upon this conclusion, the IJ further

determined that Juan was ineligible for adjustment of status on the basis of the approved visa

application. See 8 U.S.C. § 1255(i) (permitting beneficiaries of worker visas to apply for adjustment

of status, but allowing Attorney General to grant relief only to aliens who are admissible). As a

result, the IJ denied the Moras’ applications for adjustment of status. He also rejected their

applications for cancellation of removal, but granted their request for voluntary departure, giving the

Moras until July 3, 2006 to depart the country, after which time they would become subject to a final

order of removal.

       The Moras appealed to the BIA from the denial of adjustment of status, but did not challenge

the denial of cancellation of removal. The BIA adopted and affirmed the IJ’s decision. Although it

determined that Juan was more properly deemed inadmissible under section 1182(a)(9)(C)(i)(I), as

opposed to section 1182(a)(9)(B), because he entered the United States without inspection after


                                                  3
accruing more than a year of prior unlawful presence, see 8 U.S.C. § 1182(a)(9)(C)(i)(I) (rendering

inadmissible any 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”), the BIA agreed with the IJ that Juan Mora’s inadmissibility made him ineligible for

adjustment of status on the basis of the approved visa application. It therefore dismissed the appeal.

       Having now become subject to a final order of removal, see Thapa v. Gonzalez, 460 F.3d

323, 333 (2d Cir. 2006) (“[A]n order of voluntary departure that includes an alternate order of

removal is a final order subject to judicial review.”), the Moras petition for review of the BIA’s

decision denying their applications for adjustment of status.



                                          DISCUSSION

       Because the BIA adopted and modified the IJ’s decision, we review the decision of the IJ as

modified by the BIA.1 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

While factual findings are reviewed for substantial evidence, questions of law and applications of

law to undisputed fact are reviewed de novo. Chambers v. Office of Chief Counsel, 494 F.3d 274,

277 (2d Cir. 2007). Pursuant to Chevron, however, we defer to the BIA’s interpretation of

ambiguous provisions of the immigration laws, unless this interpretation is “‘arbitrary, capricious,

or manifestly contrary to the statute,’” Emokah v. Mukasey, 523 F.3d 110, 116 (2d Cir. 2008)

(quoting Chevron, 467 U.S. at 844); see also Delgado v. Mukasey, 516 F.3d 65, 68 (2d Cir. 2008)


       1
         Admittedly, the BIA’s opinion does not explicitly indicate whether the Board intended
to modify the IJ’s opinion or merely supplement it by providing an alternative ground for the
decision. Our standard of review where the BIA adopts and supplements an IJ opinion is,
however, nearly identical to the one here, see Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.
2006) (“When the BIA adopts the decision of the IJ and supplements the IJ's decision, we review
the decision of the IJ as supplemented by the BIA.”), and in the circumstances of this case our
decision would not change if we adopted this alternative interpretation of the BIA’s opinion.

                                                  4
(“We . . . accord Chevron deference to decisions of the [BIA] interpreting the immigration

statutes.”).

        Under 8 U.S.C. § 1255(i), an alien who has entered the country unlawfully may apply to

adjust his immigration status to that of a lawful permanent resident in certain circumstances. See

Delgado, 516 F.3d at 69. Paragraph (1) of that section provides in relevant part that:

        [A]n alien physically present in the United States . . . who . . . entered the United
        States without inspection[,] who is the beneficiary . . . of . . . a petition for
        classification under [8 U.S.C. § 1154 (providing, among other things, for worker visa
        petitions)] that was filed with the Attorney General on or before April 30, 2001[,] and
        . . . who, in the case of a beneficiary of a petition for classification . . . 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.

8 U.S.C. § 1255(i)(1). Paragraph (2), however, allows the Attorney General to “adjust the status of

the alien to that of an alien lawfully admitted for permanent residence” only if, inter alia, “the alien

is eligible to receive an immigrant visa and is admissible to the United States for permanent

residence,” 8 U.S.C. § 1255(i)(2) (emphasis added). To qualify for adjustment of status under section

1255(i), therefore, an alien who has entered the country unlawfully must be “otherwise ‘admissible’

to the United States.” Delgado, 516 F.3d at 69 (quoting 8 U.S.C. § 1255(i)(2)(A)).

        Whether an alien is admissible is determined by reference to 8 U.S.C. § 1182(a). According

to paragraph (6)(A)(i) of that section, “[a]n alien present in the United States without being admitted

or paroled, or who arrives in the United States at any time or place other than as designated by the

Attorney General, is inadmissible.” 8 U.S.C. § 1182(a)(6)(A)(i). In other words, any alien who is

present in the country after having entered unlawfully is inadmissible. Additionally, paragraph

(9)(C)(i) establishes two more specific prohibitions, stating, in relevant part, that:



                                                     5
         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 . . .,

         and who enters or attempts to reenter the United States without being admitted is
         inadmissible.

8 U.S.C. § 1182(a)(9)(C)(i). The introductory language to section 1182(a), however, notes that

“[e]xcept as otherwise provided in this chapter, aliens who are inadmissible . . . are ineligible to

receive visas and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a) (emphasis

added). This language acts as a “savings clause,” allowing admission of otherwise inadmissible

aliens where the statute so provides. Padilla-Caldera v. Gonzales, 453 F.3d 1237, 1241 (10th Cir.

2005).

         The Moras concede that they satisfy the criteria for inadmissibility set forth in section

1182(a)(9)(C)(i)(I) because they have been unlawfully present in the United States for more than one

year and they departed and reentered the country in connection with their marriage in Mexico.

Because section 1255(i) allows the Attorney General to adjust the status of an alien only if that alien

is admissible, it would appear the Moras are not entitled to section 1255(i) relief. But the Moras

argue that section 1255(i) cannot reasonably be read to foreclose relief to all aliens who are

inadmissible under section 1182(a). Section 1255(i), specifying the circumstances in which aliens

who have entered the country unlawfully may apply to adjust their status, applies only to aliens who

are “physically present in the United States” and “entered . . . without inspection.” 8 U.S.C.

§ 1255(i)(1). Section 1182(a)(6)(A)(i), however, renders a physically present alien inadmissible if

he entered the country unlawfully. As a result, “the plain language of the statute seems to make


                                                  6
‘entry without inspection’ both a qualifying and a disqualifying condition for adjustment of status.”

Briones, 24 I. & N. Dec. at 362. Indeed, “[i]f all aliens unlawfully present are inadmissible as a result

of § 1182(a), and admissibility is a condition for § 1255(i)(2)(A) relief, then no one would ever be

eligible under § 1255(i)(2)(A).” Ramirez-Canales v. Mukasey, 517 F.3d 904, 908 (6th Cir. 2008).

The question therefore arises how section 1255(i) should be construed so as not to render it a nullity.

That is, can section 1255(i) be read as an implicit waiver of certain grounds for inadmissibility in

accordance with the savings clause of section 1182(a), and if so, which ones?

        As the BIA has noted, this problem did not exist before the passage of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, 110

Stat. 3009-546. See Briones, 24 I. & N. Dec. at 362-63. In the pre-IIRIRA regime, aliens who entered

the country without inspection after having been deported could be deemed “inadmissible”

depending on the circumstances, and thus barred from adjusting their status under section 1255(i).

But aliens who otherwise had entered the country without inspection—whether once or on multiple

occasions—were deemed “deportable,” not “inadmissible,” and so were not barred from adjusting

their status under section 1255(i). See id. IIRIRA, however, provided for the first time that aliens

who entered the country without having been inspected or paroled should be deemed “inadmissible.”

See IIRIRA § 301(c)(1), 110 Stat. 3009-578; Briones, 24 I. & N. Dec. at 363. In addition, it added

what is now section 1182(a)(9)(C) to define a new and narrower class of inadmissible aliens—those

who entered the country unlawfully on more than one occasion. See IIRIRA § 301(b)(1), 110 Stat.

3009-576 to -578; Briones, 24 I. & N. Dec. at 363.

        Shortly before IIRIRA’s effective date, the former Immigration and Naturalization Service

(“INS”) issued a memorandum pertaining to the interplay between the new section 1182(a)(6)(A)(i),


                                                   7
providing that a physically present alien is inadmissible if he entered the country unlawfully, and

section 1255(i), specifying the circumstances in which physically present aliens who entered

unlawfully might adjust their status. See Memorandum from David Martin, General Counsel, INS,

to Michael L. Aytes, Assistant Comm'r, Office of Benefits, INS (Feb. 19, 1997), reprinted in 74

Interpreter Releases 516-22 (1997) [hereinafter INS Memo]. The INS pointed to the so-called

“savings clause” of section 1182(a), see id. at 518-19, which, as noted above, states that the

categories of aliens enumerated in that section are inadmissible “[e]xcept as otherwise provided in

this chapter,” 8 U.S.C. § 1182(a) (emphasis added). The INS interpreted section 1255(i)(1)(A)(i) as

falling within the scope of the savings clause, and thus as an implicit waiver of the admissibility

prerequisite in the case of aliens who are inadmissible under section 1182(a)(6)(A)(i). See INS

Memo at 518-22.

       The INS’s interpretation of the savings clause went some distance toward resolving the

tension between section 1255(i), specifying that physically present aliens who entered the country

illegally may in certain circumstances apply for adjustment of status, provided they are admissible,

and section 1182(a)(6)(A)(i), providing that those who enter the country unlawfully are not

admissible. This interpretation, however, did not resolve all questions concerning the relationship

between sections 1255(i) and 1182(a). While section 1182(a)(6)(A)(i) applies generally to aliens who

are present unlawfully, section 1182(a)(9)(C) applies more specifically to aliens who are present

unlawfully and who have repeatedly violated the immigration laws – either by being present for an

aggregate period of over one year and effecting or attempting to effect an entry or by entering or

attempting to enter the United States after having been ordered removed. The question remains

whether these more specific grounds for inadmissibility should be deemed implicitly “waived” by

section 1255(i) as well.


                                                 8
        In Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008), we recently resolved this issue with

respect to 8 U.S.C. § 1182(a)(9)(C)(i)(II), which makes inadmissible “[a]ny alien who . . . has been

ordered removed . . . and who enters or attempts to reenter the United States without being

admitted.” The petitioner there argued that she was eligible for adjustment of status because “by its

express language, section 1255(i) is available to aliens who enter the United States without

inspection . . . [thus indicating that] the adjustment of status provision cures inadmissibility pursuant

to § 1182(a)(9)(C)(i)(II).” Delgado, 516 F.3d at 70 (citation, internal quotation marks, and alterations

omitted). We rejected this contention and afforded Chevron deference to the BIA’s determination

in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), that an alien who is inadmissible pursuant

to section 1182(a)(9)(C)(i)(II) is ineligible for adjustment of status pursuant to section 1255(i). See

Delgado, 516 F.3d at 72.

        In reaching our conclusion in Delgado, we noted that the Tenth Circuit in Padilla-Caldera

v. Gonzales, 453 F.3d 1237 (10th Cir. 2006), and the Ninth Circuit in Acosta v. Gonzales, 439 F.3d

550 (9th Cir. 2006), held that aliens who are inadmissible under section 1182(a)(9)(C)(i)(I)—those

who entered the country unlawfully more than once, but who never were subject to orders of

removal—are eligible for section 1255(i) relief. See Delgado, 516 F.3d at 70-71. We distinguished

Padilla-Caldera and Acosta primarily on the ground that the aliens in those cases reentered the

country illegally after having been unlawfully present in the United States for more than one year,

but had not done so after having been removed, as had the petitioner in Delgado. See id. at 71. That

is, we indicated that subclauses (I) and (II) of section 1182(a)(9)(C)(i) might be treated differently

for purposes of applying section 1255(i). We therefore left open the question raised here—whether

an alien who is inadmissible under section 1182(a)(9)(C)(i)(I) may apply for section 1255(i) relief.



                                                   9
       The Moras rely extensively on Padilla-Caldera and Acosta to argue, much like the petitioner

in Delgado, that because section 1255(i) expressly makes adjustment of status available to aliens

who are present in the country unlawfully, it implicitly waives section 1182(a)(9)(C)(i)(I) as a ground

for inadmissibility. We are not persuaded. First, Acosta no longer appears to be good law. In reaching

its decision, the Acosta court noted that it was constrained by the prior Ninth Circuit case of

Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), overruled by Gonzales v. Dep’t of

Homeland Sec., 508 F.3d 1227 (9th Cir. 2007), which held that Section 1255(i) relief is available

to aliens who are inadmissible under section 1182(a)(9)(C)(i)(II). See Acosta, 439 F.3d at 554

(“Perez-Gonzalez appears to control the issue now before us.”). Perez-Gonzalez, however, came

down before the BIA decided Torres-Garcia. The Perez-Gonzalez court therefore did not base its

decision on the application of the Chevron doctrine to a precedential agency decision. See

Perez-Gonzalez, 379 F.3d at 793-94. Moreover, in Torres-Garcia, the BIA ultimately rejected the

Ninth Circuit’s position that an alien who is inadmissible under section 1182(a)(9)(C)(i)(II) may

apply for adjustment of status under section 1255(i). See Torres-Garcia, 23 I. & N. Dec. at 873

(“With all due respect, we believe the Ninth Circuit’s analysis . . . contradicts the language and

purpose of the Act . . . .”). And, the Ninth Circuit subsequently overruled Perez-Gonzalez and

granted Chevron deference to the BIA’s conclusion in Torres-Garcia. See Gonzales, 508 F.3d at

1242. We therefore do not find Acosta persuasive.

       Reliance on the Tenth Circuit’s decision in Padilla-Caldera is equally problematic. The court

there recognized that the immigration laws are ambiguous as to whether an alien subject to section

1182(a)(9)(C)(i)(I) may apply to adjust his status under section 1255(i), see Padilla-Caldera, 453

F.3d at 1241, but noted that the only agency guidance on the question at the time was an internal INS

memorandum to which the court did not owe “rigorous deference,” id. at 1244. Like the Ninth


                                                  10
Circuit in Perez-Gonzalez and Acosta, the Tenth Circuit sought to divine Congress’s intent without

a clear indication of how the agency would resolve the question. See id. at 1241.

       We are in a substantially different position. Subsequent to the Tenth Circuit’s decision in

Padilla-Caldera and the BIA’s rejection of the Moras’ appeal in this case, the agency decided In re

Briones, 24 I. & N. Dec. 355 (BIA 2007), in which it determined for the first time in a published

opinion that, even though aliens who are inadmissible under section 1182(a)(6)(A)(i) may be eligible

for adjustment of status under section 1255(i) by operation of section 1182(a)’s savings clause, aliens

who are inadmissible also under section 1182(a)(9)(C)(i)(I) are not. See Briones, 24 I. & N. Dec. at

365, 370-71. As a result, the issue before us is whether, in accordance with Chevron, we must defer

to the BIA’s interpretation of the immigration laws. See Delgado, 516 F.3d at 68-69; see also

Ramirez-Canales, 517 F.3d at 908-09 (“As a precedential opinion, Briones is the type of

case-by-case adjudication giving meaning to ambiguous statutes to which we owe deference. We

therefore review the Board’s interpretation for reasonableness [under Chevron].” (citation and

footnote omitted)). Unlike the Tenth Circuit in Padilla-Caldera, we are not free to apply our

independent construction of the relevant statutes unless we first determine that the statutes are

unambiguous, or that the agency’s construction is untenable. See, e.g., Sutherland v. Reno, 228 F.3d

171, 174 (2d Cir. 2000) (“[W]here the relevant statutory provision is silent or ambiguous, ‘a court

may not substitute its own construction of a statutory provision for a reasonable interpretation made

by the administrator of an agency.’” (quoting Chevron, 467 U.S. at 843-44)).

       The statutory language at issue here is certainly ambiguous. As previously noted, a literal

reading of section 1255(i) threatens to render the statute a nullity, and so it is necessary to read the

statute as implicitly waiving unlawful presence as a ground for inadmissibility in certain

circumstances. See, e.g., Trichilo v. Sec’y of Health & Human Servs., 823 F.2d 702, 706 (2d Cir.


                                                  11
1987) (“[W]e will not interpret a statute so that some of its terms are rendered a nullity.”). But

whether it should be read as waiving inadmissibility only under the general section 1182(a)(6)(A)(i),

or whether it should be read as waiving inadmissability under the more specific section

1182(a)(9)(C)(i)(I) as well, cannot be inferred clearly from the text of the immigration laws alone.

See Ramirez-Canales, 517 F.3d at 908 (“[I]n resolving this conflict the terms of these statutes are

amenable to multiple interpretations . . . .”). Accordingly, “[t]he precise reach of section

1255(i)(1)(A)(i) is an implicit statutory ambiguity the executive branch is authorized to fill.”

Mortera-Cruz v. Gonzales, 409 F.3d 246, 253 (5th Cir. 2005). The question therefore becomes

whether the BIA’s interpretation in Briones is “‘arbitrary, capricious, or manifestly contrary to the

statute.’” See Emokah, 523 F.3d at 116 (quoting Chevron, 467 U.S. at 844). It is not.

       In Briones, the BIA offered three main reasons to interpret section 1255(i) as allowing aliens

covered only by section 1182(a)(6)(A)(i), but not aliens covered by section 1182(a)(9)(C)(i)(I) as

well, to apply for adjustment of status. First, it noted that the purpose of section 1182(a)(9)(C)

generally “was to single out recidivist immigration violators and make it more difficult for them to

be admitted to the United States after having departed.” Briones, 24 I. & N. Dec. at 358. This is

evidenced by the fact that aliens covered by section 1182(a)(9)(C) are a subset of those covered by

section 1182(a)(6)(A)(i), thus suggesting that Congress went out of its way to distinguish between

repeat and first-time offenders. See id. at 365-66. According to the agency, the inclusion of section

1182(a)(9)(C) in the immigration laws, as well as other provisions targeting recidivists, “reflects a

clear congressional judgment that . . . repeat offenses are a matter of special concern and that

recidivist immigration violators are more culpable . . . than first-time offenders.” Id. at 371.




                                                 12
        Second, the BIA observed that even in the pre-IIRIRA regime, certain aliens who reentered

the country after having been deported—those who fall under the current section

1182(a)(9)(C)(i)(II)—were not eligible for adjustment of status under section 1255(i). See id. at 366-

67. Hence, the agency concluded, applying section 1182(a)’s savings clause to section

1182(a)(9)(C)—which “define[s] a unitary ground of inadmissibility that may be predicated on

various types of conduct,” see id. at 367, thus indicating that sections 1182(a)(9)(C)(i)(I) and (II)

should not be treated differently for purposes of applying section 1255(i)—would make adjustment

of status available to a large class of aliens who never were entitled to it. Id. at 366-67. The BIA

suggested that it would be “an unwarranted leap” to presume that Congress intended such a result.

Id. at 367.

        Third, the agency noted that “where Congress has extended eligibility for adjustment of status

to inadmissible aliens (in other words, where Congress has ‘otherwise provide[d]’ within the

meaning of the savings clause)” it has generally done so “unambiguously, either by negating certain

grounds of inadmissibility outright or by providing for discretionary waivers of inadmissibility, or

both.” Id. at 367 (alteration in original). For example, Congress enacted special remedial legislation

in the late 1990’s making adjustment of status relief available to certain Cuban, Central American,

and Haitian aliens who were unlawfully present in the United States but, with certain specified

exceptions, otherwise admissible. See id.; see also Haitian Refugee Immigration Fairness Act of

1998, Pub. L. No. 105-277, tit. IX, § 902(a), 112 Stat. 2681-538, 2681-538 (codified as amended at

8 U.S.C. § 1255 note); Nicaraguan Adjustment and Central American Relief Act, Pub L. No. 105-

100, tit. II, § 202(a), 111 Stat. 2193, 2193-94 (1997) (codified as amended at 8 U.S.C. § 1255 note).

When it realized that many of the aliens to whom it sought to give relief might be barred from


                                                 13
adjusting their status because of IIRIRA, Congress passed amendments that explicitly gave the

Attorney General discretion to waive section 1182(a)(9)(C) as a ground for inadmissibility with

regard to those aliens. See Briones, 24 I. & N. Dec. at 368; see also LIFE Act Amendments of 2000,

Pub. L. No. 106-554, div. B, tit. XV, § 1505(a), (b), 114 Stat. 2763A-324, 2763A-326 to -327

(codified as amended at 8 U.S.C. § 1255 note). This, the BIA concluded, “demonstrates that when

Congress wants to make adjustment of status available to aliens despite their inadmissibility under

section [1182(a)(9)(C)], it knows how to do so.” Briones, 24 I. & N. Dec. at 368. The BIA observed

also that when Congress passed the amendments permitting this discretionary waiver of

inadmissibility, it also modified section 1255(i) to extend the filing deadline for qualifying visa

petitions. But it did not remove section 1182(a)(9)(C) as an obstacle to adjustment of status under

section 1255(i), thus showing that Congress intended to foreclose aliens who repeatedly violate the

immigration laws from adjusting their status. Id.

       We find the BIA’s reasoning not to be arbitrary, capricious, or manifestly contrary to statute.

As the agency’s analysis indicates, the language, structure, and lineage of the relevant statutes

reasonably give rise to the inference that Congress considers aliens who repeatedly enter the country

unlawfully to be more culpable than one-time offenders, and therefore to be less deserving of relief

under section 1255(i). Hence, we do not think it is unreasonable for the agency to interpret section

1255(i) as extending relief to aliens who are inadmissible under section 1182(a)(6)(A)(i), but not to

those who are inadmissible also under section 1182(a)(9)(C)(i)(I). Notably, the Fifth and Sixth

Circuits have applied Chevron to this interpretation of section 1255(i) and reached the same result.

See Ramirez-Canales, 517 F.3d at 910 (“We cannot say that the Board’s conclusions [in Briones]

were unreasonable in light of its careful and well-supported arguments. We therefore owe deference


                                                 14
to the Board’s interpretation.”); Mortera-Cruz, 409 F.3d at 255-56 (granting Chevron deference in

pre-Briones case to agency determination that alien subject to section 1182(a)(9)(C)(i) was not

eligible to adjust status under section 1255(i)). We hereby join them in affording Chevron deference

to the agency’s conclusion that an alien who is determined to be inadmissible under section

1182(a)(9)(C)(i)(I) is not eligible to adjust his status pursuant to section 1255(i).

       Because the Moras do not dispute that Juan Mora is inadmissible pursuant to section

1182(a)(9)(C)(i)(I), and because the BIA’s determination that such inadmissibility precludes section

1255(i) relief was reasonable under Chevron, the agency did not err in denying the Moras’

applications for adjustment of status. Accordingly, the petition for review is DENIED.




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