9th Circuit Finds Adjustment Of Status Available To Noncitizen Subject To Reinstatement Of Removal

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9th Circuit finds adjustment of status available to noncitizen subject to reinstatement of removal
Immigrants' Rights Update, Vol. 18, No. 7, November 8, 2004

The U.S. Court of Appeals for the Ninth Circuit has ruled that a Mexican national who returned to the United States following a deportation and had his deportation reinstated may nonetheless obtain adjustment of status if his Application for Permission to Reapply for Admission, Form I‑212, is granted. The court distinguished Padilla v. Ashcroft, 334 F.3d 921 (9th Cir. 2003), in which such relief was found not to be available in reinstatement cases, on the basis that in this case the petitioner, unlike Padilla, had filed the I‑212 prior to the reinstatement of his deportation order. The court also found that the petitioner’s adjustment is not barred by the “permanent” bar for unlawful reentry following prior removal or unlawful presence of section 212(a)(9)(C) of the Immigration and Nationality Act, because if the I‑212 application is granted the grant would be retroactive to the date of the petitioner’s entry and he would no longer be subject to the bar.

The petitioner in this case, Gregorio Perez-Gonzalez, is a Mexican national who first entered the U.S. in 1992. In 1994 he was convicted of unlawful possession of a firearm and subsequently placed in deportation proceedings and deported. He returned to the U.S. without inspection in 1995 and married a U.S. citizen in 1997. In 1999 he and his wife had a daughter, and later that year the family traveled to visit relatives in Mexico and then returned to the U.S., again entering without inspection.

In 2001 Perez-Gonzalez’s wife filed a visa petition on his behalf, and in April 2002, after the petition was approved, Perez-Gonzalez filed an adjustment application under INA section 245(i). At his interview in June 2002, Perez-Gonzalez was told by the Immigration and Naturalization Service interviewer that because of his prior deportation, he needed to apply for advance permission to reapply for admission, and in July 2002 he filed the I-212 application. In October he was sent a notice for interview at the INS office. When he appeared, he was arrested and not allowed to speak with his attorney. He was then issued a denial of his Form I-212 application, a denial of his adjustment application, and a Notice of Intent/Decision to Reinstate Prior Order. He filed a petition for review of the reinstated order with the court of appeals, which resulted in the Ninth Circuit’s decision.

Ruling on the petition, the court found that the reinstatement statute applies to Perez-Gonzalez, because he was deported and he then reentered the U.S. illegally after Apr. 1, 1997. The court found the case on this point to be squarely controlled by its prior decision in Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir. 2001).

The court then considered whether the reinstatement statute categorically bars Perez-Gonzalez from obtaining adjustment of status under INA sec. 245(i). In Padilla, the court found that a petitioner who was subject to reinstatement was barred from applying for adjustment under section 245(i). However, the court concluded that this case is distinguishable from Padilla because Perez-Gonzalez applied for adjustment and permission to reapply before his prior deportation order was reinstated. The court reasoned that, had the INS granted the applications, “Perez-Gonzalez would no longer be subject to the reinstatement provision as he would no longer be considered an illegal entrant.”

The court then considered whether Perez-Gonzalez’s Form I‑212 was properly denied. The court noted that it would not have jurisdiction to review a discretionary determination to deny this relief. However, in this case the denial was based on a legal determination that Perez-Gonzalez was not eligible for relief, and this determination may be judicially reviewed.

The INS denied the I‑212 application on the grounds that this relief is available only “to aliens outside the United States, applying at a port-of-entry, or aliens paroled into the United States.” The court noted that this restriction conflicts with the plain language of the regulations, as well as with precedent in which such relief was granted on a nunc pro tunc basis to individuals who had already entered the U.S. Thus, the court concluded that the denial was erroneous as a matter of law.

The court then considered the issue of whether this error was prejudicial—whether Perez-Gonzalez could have been granted adjustment had the I‑212 been approved nunc pro tunc. The court noted that several grounds of inadmissibility apply to Perez-Gonzalez, including being present in the U.S. without admission or parole (INA sec. 212(a)(6)(A)(i)), and the various bars for noncitizens for prior removals or unlawful presence of INA secs. 212(a)(9)(A), (B), and (C). However, the court concluded that none of these bars preclude relief under INA section 245(i) and its implementing regulations, which clearly contemplate the adjustment of individuals who unlawfully entered the U.S. following a prior removal. Perez-Gonzalez also could be inadmissible for misrepresentation (INA sec. 212(a)(6)(C)) for failing to disclose his prior conviction and removal in his adjustment application, but this ground could be cured by a waiver under INA sec. 212(i). The court concluded that had the Form I‑212 been approved, Perez-Gonzalez could have been granted adjustment. The court therefore remanded the case to the U.S. Citizenship and Immigration Service for a determination whether to exercise favorable discretion and grant the I‑212 and a 212(i) waiver for the possible misrepresentation.

The court declined to resolve Perez-Gonzalez’s claim that the reinstatement regulations violated his due process rights, since its decision affords relief on narrower grounds. However, the court did note that “The use of the adjustment of status procedure to surprise applicants with sudden reinstatement of their deportation orders raises fundamental due process concerns.”

Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004).