Carillo de Palacios v. Holder

by Mark Fleming

Carillo de Palacios v. Holder (9th Cir., June 21, 2011)
SMITH JR., Graber, Benitez (distct)

Summary: “Petitioner Maria Matilde Carrillo de Palacios (Carrillo de Palacios) petitions for review of a decision of the Board of Immigration Appeals (BIA). The BIA determined that Carrillo de Palacios is ineligible for adjustment of status under section 245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i), because she is inadmissible under INA section 212(a)(9)(C)(i), 8 U.S.C. § 1182(a)(9)(C)(i), and is not eligible for the exception to inadmissibility in INA section 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).

We deny the petition, as the BIA correctly concluded that Carrillo de Palacios returned to the United States after having been “unlawfully present in the United States for an aggregate period of more than 1 year,” which renders her inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). We reject her argument that the § 1182(a)(9)(C)(i)(I) one-year period of unlawful presence must occur after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, § 309(a), 110 Stat. 3009-546, 3009-625, reprinted in 8 U.S.C. § 1101 note, at 35 (2006) (Effective Date of 1996 Amendments). The BIA also correctly concluded that she does not satisfy the requirements of 8 U.S.C. § 1182(a)(9)(C)(ii)’s exception to inadmissibility. We hold that in order to be eligible under 8 U.S.C. § 1182(a)(9)(C)(ii), an alien must remain outside the United States for more than ten years before returning to the United States.”

In rejecting petitioner’s argument that 8 U.S.C. § 1182(a)(9)(C)(i)(I) was impermissibly retroactively applied to her, the court concluded that the Supreme Court addressed a similar IIRIRA retroactivity issue in Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (finding retroactive application of IIRIRA’s reinstatement-of –removal provision 8 U.S.C. § 1231(a)(5) suitable).

In addition, the Court rejected petitioner’s interpretation of 8 U.S.C. § 1182(a)(9)(C)(ii) that she must only wait ten years since her last departure from the United States in order to seek readmission.

Read the opinion here.