On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable Annie S. Garcy No. A079-697-068
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.
Submitted Under Third Circuit L.A.R. 34.1(a) June 24, 2011
Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges
Maria Sarango petitions for review of a Board of Immigration Appeals decision dismissing her appeal. The BIA rejected Sarango‟s request for retroactive -- "nunc pro tunc" -- consent to reapply for admission to the United States under 8 U.S.C. § 1182(a)(9)(C)(ii) because Congress delegated authority to consider such requests to the Secretary of Homeland Security, thereby depriving immigration judges of jurisdiction. Whether an immigration judge has jurisdiction to consider a § 1182(a)(9)(C)(ii) request for consent to reapply for admission is an issue of first impression. We conclude that an immigration judge lacks jurisdiction, and we will deny the petition.
I. Sarango, a native and citizen of Ecuador, illegally entered the United States for the first time in June 1991. On December 14, 1994, the Immigration and Naturalization Service (now the Department of Homeland Security) commenced deportation proceedings. At the conclusion of these proceedings, an Immigration Judge ("IJ") granted Sarango voluntary departure on or before October 6, 1995. Nevertheless, Sarango remained in the United States for over three additional years before finally departing on February 25, 1999.
Just over a year after her departure, in August 2000, Sarango illegally reentered the United States without admission or inspection. Shortly after her re-entry, Sarango married a United States citizen. Based on this marriage, Sarango applied -- using a different alien registration number from her original registration number -- for adjustment of status to lawful permanent resident ("LPR"). While her status adjustment application was pending, on August 27, 2001 Sarango filed an application for consent to reapply for admission to the United States using her originalalien registration number. On October 23, 2001, the INS conditionally granted Sarango LPR status for two years. On October 7, 2002, the INS denied Sarango‟s application for consent to reapply for admission. Sarango then sought to change her conditional LPR status to unconditional LPR status, and the INS granted her request on June 2, 2004.
On March 1, 2006, during a naturalization interview related to her status adjustment application, DHS discovered Sarango‟s previous deportation. DHS then initiated removal proceedings by serving Sarango with a Notice to Appear ("NTA"). The NTA charged Sarango with removability pursuant to 8 U.S.C. § 1227(a)(1)(A) alleging that she was an alien who is inadmissible: (1) under 8 U.S.C. § 1182(a)(6)(C)(i), for having obtained or tried to obtain her visa, or other entry document, or entry to the United States by fraud or willful misrepresentation; (2) under 8 U.S.C. § 1182(a)(7)(A)(i)(I), for not being in possession of a valid entry or identification document at the time of her admission; and (3) under 8 U.S.C. § 1182(a)(9)(C)(i)(II), for having been ordered removed and then reentering or attempting to re-enter the United States without being admitted.*fn1
Sarango appeared before an IJ and admitted her alienage, her adjustment to LPR status, her previous immigration history, and her recidivist violation, but she denied the fraud and inadmissibility charges. Sarango also submitted an application for adjustment of status based on her marriage to a United States citizen and an application for consent to reapply for admission into the United States.
On January 16, 2007, the IJ found Sarango inadmissible and removable as charged. Subsequently, on April 15, 2008, the IJ, relying on In re Briones, 24 I. & N. Dec. 355, 371 (B.I.A. 2007) (holding that "aliens who are inadmissible under [§ 1182(a)(9)(C)(i)(I)] cannot qualify for section 245(i) [8 U.S.C. § 1255] adjustment, absent a waiver of inadmissibility"), denied Sarango‟s 8 U.S.C. § 1255 application for adjustment of status. The IJ determined that, under Briones, Sarango‟s inadmissibility under § 1182(a)(9)(C)(i)(II) rendered her statutorily ineligible for adjustment of status. The IJ ordered Sarango removed to Ecuador.
Sarango appealed the IJ‟s denial of her adjustment of status application to the Board of Immigration Appeals ("BIA"). Before the BIA, Sarango argued that she was eligible for retroactive -- "nunc pro tunc"*fn2 -- consent to reapply for admission pursuant to § 1182(a)(9)(C)(ii), and that a grant of such relief would waive her inadmissibility. The BIA dismissed Sarango‟s petition, first determining that Sarango was removable pursuant to § 1227(a)(1)(A) due to her inadmissibility under § 1182(a)(9)(C)(i)(II).*fn3 Next, responding to Sarango‟s retroactive consent argument, the BIA determined that the IJ lacked jurisdiction to decide requests for consent to reapply for admission. The BIA relied on the text of § 1182(a)(9)(C)(ii), which vests authority to consider requests for consent to reapply for admission with the Secretary of Homeland Security. Because the authority of the BIA and immigration courts is circumscribed by the authority of the Attorney General, the BIA reasoned that the IJ lacked jurisdiction to consider Sarango‟s request. Finally, the BIA declined to remand or stay Sarango‟s proceeding while Sarango applied to the Secretary of Homeland Security for consent to reapply because Sarango failed to allege a prima facie case for relief. The BIA issued a final order of removal on May 20, 2010, and Sarango petitioned this Court for review on June 10, 2010.
II. We have jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issued an opinion, we review the BIA‟s decision as the final agency decision. Espinosa-Cortez v. Att'y Gen. of the United States, 607 F.3d 101, 106 (3d Cir. 2010). We review questions of law de novo. Yusupov v. Att'y Gen. of the United States, 518 F.3d 185, 197 (3d Cir. 2008). We owe deference to the BIA‟s reasonable, permissible interpretations of the Immigration and Nationality Act ("INA"). INS v. AguirreAguirre, 526 U.S. 415, 424-25 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Yusupov, 518 F.3d at 197.
III. We first consider whether the BIA correctly concluded Sarango was inadmissible and removable. We then consider whether immigration judges have jurisdiction to consider requests for consent to ...