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Mora v. Mukasey

December 16, 2008

JUAN MORA AND GUILLERMINA MORA PETITIONERS,
v.
MICHAEL B. MUKASEY, UNITED STATES ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENT.



SYLLABUS BY THE COURT

Petition for review of a Board of Immigration Appeals decision affirming an Immigration Judge's denial of applications for adjustment of status.

Denied.

The opinion of the court was delivered by: Livingston, Circuit Judge

Argued: June 2, 2008

Before: McLAUGHLIN, SACK, LIVINGSTON, Circuit Judges.

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 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 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 re-enter 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. Xue Hong Yang v. U.S. Dep't of ...


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