Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010).

The BIA reviewed the findings of fact made by the IJ, including findings as to the credibility of testimony, to determine whether they are “clearly erroneous,” and the BIA reviews de novo all questions of law, discretion, and judgment, including whether the parties have met their relevant burden of proof.

Where the respondent did not meaningfully contest their inadmissibility under INA Section 212(a)(9)(C)(i)(I), and where the respondents did not challenge the IJ’s finding that they first entered the U.S. without inspection in 1998 and departed the U.S. on October 1, 2000, and then re-entered the U.S. on November 1, 2000, the BIA concluded each respondent is inadmissible under INA Section 212(a)(9)(C)(i)(I) as an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year and who entered the United States without being admitted.

Both the Second Circuit in Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008), and the Sixth Circuit in Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. 2008), have held that because the BIA analyzed and interpreted the ambiguous provisions of the immigration laws reasonably in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), Chevron deference should be accorded to the BIA’s conclusion that an alien who is determined to be inadmissible under INA Section 212(a)(9)(C)(i)(I) is ineligible to adjust status under INA Section 245(i). Furthermore, the Seventh Circuit recently noted in Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009) that there was sufficient ambiguity between sections 212(a)(9)(C)(i)(I) and 245(i) to require Chevron deference and that it would find that the BIA has drawn a rational line.

Where the Ninth Circuit decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) which held that an alien who is inadmissible under INA Section 212(a)(9)(C)(i)(I) is eligible to apply for adjustment of status under INA Section 245(i) was constrained by its prior decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), and where Perez-Gonzalez was overruled by the Ninth Circuit in Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) after granting Chevron deference to the BIA’s decision in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), which rejected the analysis in Perez-Gonzalez, the Ninth Circuit recognized that Perez-Gonzalez was premised on the existence of ambiguity in the interplay between the inadmissibility and adjustment of status provisions and that the BIA’s interpretation of these ambiguous statutes in Matter of Torres-Garcia was reasonable. Therefore, in light of the BIA’s subsequently issued decision in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) and the Ninth Circuit’s decision in Gonzales to overrule Perez-Gonzalez, neither the IJ nor the BIA remains bound by the Ninth Circuit’s decision in Acosta. The analysis of Matter of Briones is therefore applicable, and the IJ properly found the respondents ineligible for adjustment of status under INA Section 245(i). Accordingly, the respondents’ appeal will be dismissed.
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