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General Immigration 7th Cir: no nunc pro tunc permission to reapply | 7th Cir: no nunc pro tunc permission to reapply |
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| Tuesday, 26 August 2008 | |||||
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Borrego v. Mukasey (7th Cir. 8/24/08) MANION Ripple Bauer An individual with an expedited removal order (for a post-97 false claim to USC) obtained a B-1 visa, without noting her prior removal or her prior fraud. She married a USC and applied for adjustment; denied for false claim to USC, reentry without prior permission to reapply. BIA found no nunc pro tunc authority to grant nonimmigrant waiver, per Matter of Fueyo, 20 I&N Dec. 84 (BIA 1989). She only challenged the nunc pro tunc waiver issue. The 7th Cir found the Board's interpretation of 212(d)(3), barring nunc pro tunc adjudication, "entirely sensible." Distinguished Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008), because that involved someone applying for admission at POE, so the 212(d)(3) waiver wouldn't have been retroactive or nunc pro tunc. Also, Borrego's use of false name at consular interview prevented consulate from discovering her past expedited removal order. [CR - but why wouldn't the entire case be dismissed as harmless error? A post-96 false claim to USC is a non-waiveable ground of inadmissibility, who cares whether she could get retroactive permission to reapply? It's a purely advisory opinion...]
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