                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                        June 21, 2005
                         FOR THE FIFTH CIRCUIT
                         _____________________                    Charles R. Fulbruge III
                                                                          Clerk
                             No. 03-60894
                         _____________________

DAVID CASTILLO-AVALOS,

                                                                  Petitioner,

                                   versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                                                  Respondent.

__________________________________________________________________

                        Petition for Review
         of an Order of the Board of Immigration Appeals
                    Agency Number A75 234 172
_________________________________________________________________

Before REAVLEY, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:1

     This   petition    for   review    requires    us   to   decide    a    close

question of statutory interpretation:              Whether David Castillo-

Avalos (“Castillo”), who entered this country without inspection,2

is eligible to apply for an adjustment of his immigration status

under the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1255(i).       His   eligibility   is    problematical        because       he   is

inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I), which provides

     1
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     2
       For purposes of this opinion, we treat as synonymous the
phrases “entry without inspection”, “unlawful entry”, and “entry
without having been admitted or paroled.”
for inadmissibility if entry into this country without inspection

occurred after having been present in this country unlawfully for

more than one year.    We are persuaded that § 1255(i), which cures

inadmissibility   simply     based   on   an    alien’s   entry     without

inspection,   does    not   apply    to   Castillo     because     under    §

1182(a)(9)(C)(i)(I)   he    is   inadmissible   not   merely     because   he

entered the country without inspection, but because he illegally

entered after he had accrued more than one year of unlawful

presence in the United States.

                                     I

     Castillo is a native and citizen of Mexico.          He alleges that

he has lived in the United States since 1992, but conceded that he

has never had legal status in this country.           In 1996, he married

Sandra Barajas Castro, then a lawful permanent resident of the

United States.    She filed a relative immigrant visa petition on

behalf of Castillo, which was approved in October 1997.                    The

Castillos have a United States citizen son, born in Beaumont, Texas

in 1998.

     In March 1999, Castillo had a minor run-in with the law, which

apparently led the Immigration and Nationality Service (“INS”)

agents to apprehend him, based on his entry without inspection.3


     3
       The INS ceased to exist on March 1, 2003. The newly created
Department of Homeland Security assumed the functions of the INS.
In this opinion, we will refer to the agency as the INS because the
actions relevant to this case took place before the transfer of
these functions to the Department of Homeland Security.

                                     2
He was granted voluntary departure.          He soon reentered the United

States without inspection on or about May 27, 1999.          On August 31,

2000, the INS served Castillo with a Notice to Appear, charging him

with being subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as

an alien present in the United States without having been admitted

or   paroled.     In     January    2001,   Castillo   appeared   before      an

Immigration Judge (“IJ”) and conceded that he was removable.               The

IJ, however, granted a continuance to allow Castillo to apply for

an adjustment of status. Castillo submitted his application to the

immigration     court,    seeking   adjustment   pursuant   to    8   U.S.C   §

1255(i), which allows an alien, who is otherwise admissible, to

remain in the United States while adjusting his immigration status,

if he pays a fee.        The IJ denied Castillo’s application, holding

that Castillo was inadmissible, and consequently ineligible for an

adjustment of his immigration status, under § 1182(a)(9)(C)(i)(I)

because he had been unlawfully present in the United States for an

aggregate period of more than one year after April 1, 1997 and had

then re-entered the country without inspection.              The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s decision without a

written opinion.

                                       II

      Thus,     the    question     presented    is    whether    Castillo’s

inadmissibility under § 1182(a)(9)(C)(i)(I) precludes adjustment of




                                       3
his immigration status pursuant to § 1255(i).4           Section 1255(i)

authorizes the Attorney General, for a fee of $1,000, to adjust the

status of an alien who is physically present in the United States,

but who was not inspected at the border, if: 1) the alien is

eligible to receive a visa, 2) the visa is immediately available,

and 3) the alien is admissible into the United States for permanent

residence.

     It is undisputed that at the time of his final hearing before

the IJ, Castillo was eligible to receive a visa, and the visa was

immediately   available.   Thus,       the   remaining   question   as   to

Castillo’s eligibility is whether, under the relevant statutory

provisions, Castillo may be considered admissible into the United

     4
       Castillo also argues that § 1182(a)(9)(C) violates his
substantive due process rights and his equal protection rights.
Neither of these arguments has merit. It is well-established that
neither Castillo nor his family is constitutionally entitled to
have Castillo remain in the country in violation of the immigration
laws.   See Bright v. Parra, 919 F.2d 31, 34 (5th Cir. 1990).
Furthermore, Congress may make classifications of aliens as long as
it has a facially legitimate reason for making the distinction.
See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 308 (5th Cir.
1999). Here, it seems clear that Congress has rationally chosen to
distinguish individuals who have effected multiple illegal entries
into this country or who have accrued significant unlawful presence
here from those who have entered illegally only a single time.

     Next, Castillo argues that § 1182(a)(9)(C) is invalid because
it conflicts with Article 17 of the International Covenant on Civil
and Political Rights (“ICCPR”), which requires that no one shall be
subjected to arbitrary or unlawful interference with his or her
family. This argument is meritless because, among other reasons,
the ICCPR was ratified before the relevant statutory sections were
passed.    “[W]hen a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of conflict
renders the treaty null.”    Breard v. Greene, 523 U.S. 371, 376
(1998).

                                   4
States. Section 1182 lists several classes of inadmissible aliens.

The statute provides that an alien is inadmissible if he is present

in the United States without having been admitted or paroled.                     8

U.S.C. § 1182(a)(6)(A). The statute also provides that an alien is

inadmissible if he “has been unlawfully present in the United

States for an aggregate period of more than 1 year . . . and . . .

enters or attempts to reenter the United States without being

admitted.”      8 U.S.C. § 1182(a)(9)(C)(i).          Thus, under the facts of

this    case,      Castillo    is   inadmissible     under    both    (6)(A)    and

(9)(C)(i)(I).

                                        III

       We have recently affirmed, in a factually indistinguishable

case,   a    BIA    decision    that,   in    the   light    of   §   1255(i),    §

1182(a)(6)(A) does not preclude an alien from applying for an

adjustment of status. Mortera-Cruz v. Gonzalez, --- F.3d ---, 2005

WL 1076166, at *5 (5th Cir. May 9, 2005).                   In Mortera-Cruz, we

found that “the conduct proscribed by section 1182(a)(9)(C)(i) is

both different from and more culpable than the conduct of a one-

time illegal alien subject to inadmissibility . . . only under

section 1182(a)(6)(A)(i).”          Id. at *7.      We then affirmed the BIA’s

dismissal of Mortera-Cruz’s petition for adjustment of status after

noting that the BIA’s ruling was not arbitrary and was therefore

entitled to Chevron deference.           Id. at *7.

       Because the present case is indistinguishable from Mortera-

Cruz,   it   is     binding    precedent     in   deciding   this     appeal   and,

                                         5
accordingly, we DENY the petition for review on the basis that §

1182(a)(9)(C)(i) precludes eligibility for adjustment of status

under § 1255(i).

                                                PETITION DENIED.




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