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Borrego v. Mukasey

August 25, 2008

MARGARITA DEL ROCIO BORREGO, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of the Decision of the Board of Immigration Appeals. No. A76-285-589.

The opinion of the court was delivered by: Manion, Circuit Judge

ARGUED JUNE 6, 2008

Before MANION, BAUER, and RIPPLE, Circuit Judges.

Margarita del Rocio Borrego, using the alias Rosa Maciel-Curiel, falsely claimed to be a United States citizen in an attempt to gain entry into the United States in 1997. Borrego's attempt was foiled, and she was barred from entering the United States for a period of five years. Nevertheless, less than four years later Borrego obtained a B-2 visa under her real name and returned to the United States. Borrego was later discovered and ordered removed again. Borrego petitions this court for review of the Board of Immigration Appeals decision affirming the latter order of removal. We deny her petition for review.

I.

Borrego is a citizen of Mexico. On July 25, 1997, at the Paso del Norte Port of Entry in El Paso, Texas, Borrego attempted to enter the United States by using the alias Rosa Maciel-Curiel and claiming to be a United States citizen. During an interview with an agent of the Immigration and Naturalization Service ("INS"), which was conducted in Spanish,*fn1 Borrego admitted that she was not a United States citizen and that she knew it was illegal to falsely claim United States citizenship. But Borrego continued to maintain that she was Rosa Maciel-Curiel; she swore under oath that her "true and correct name" was Rosa Maciel-Curiel.

Borrego's fingerprints were taken, and she was then ordered removed. In a document bearing her signature (albeit under the alias Rosa Maciel-Curiel), Borrego was informed that she had been found inadmissible pursuant to § 212(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a); that she was "prohibited from entering, attempting to enter, or being in the United States for a period of 5 years from the date of [her] departure from the United States"; and that if she wanted to return to the United States before the five-year ban was up, she had to "request and obtain permission from the Attorney General to reapply for admission into the United States . . . prior to commencing [her] travel." In addition, Borrego was personally served with a notice and order of expedited removal, which stated that she was inadmissible under § 212(a)(6)(C)(ii) of the INA, 8 U.S.C. § 1182(a)(6)(C)(ii), because she "falsely represented [herself] to be a citizen of the United States . . . for the purpose of gaining entry into the United States." After receiving that notice, she was removed from the country.

Despite the five-year ban, in January 2001 Borrego applied for a B-2 visa to enter the United States under her own name, Margarita del Rocio Rodelo Reynoso. During the application process, Borrego never informed the United States Consulate in Mexico of the five-year ban on admission. Nor did she seek permission from the Attorney General to reapply for admission. On her visa application (which was in Spanish), Borrego responded "no" to the question asking whether she had ever attempted to enter the United States by means of fraud or false statements. She also answered "no" to another question asking if she had been deported from the United States within the last five years. Thus unaware of her prior history, the consulate issued Borrego a visa on January 2, 2001, and, shortly thereafter, Borrego used the visa for admission into the country.

While in the United States, Borrego married Fernando Borrego, an American citizen. Her husband proceeded to file an application for an adjustment of status on her behalf in May 2003. That application was denied when the INS found out from an FBI fingerprint comparison that Borrego's fingerprints matched those of Maciel-Curiel. Borrego was then placed in removal proceedings. The INS alleged that Borrego was subject to removal pursuant to § 237(a)(1)(A) of the INA, 8 U.S.C. § 1227(a)(1)(A), as an alien who (1) sought to procure admission into the United States by false and fraudulent pretenses; (2) sought admission within five years of the date of a previous removal without obtaining prior consent to reapply for admission from the Attorney General; and (3) falsely represented herself as a United States citizen. The INS also alleged that Borrego was removable under § 237(a)(1)(A) because she had over-stayed her visa.

In proceedings before an immigration judge ("IJ"), Borrego challenged the 1997 order of removal. She also sought permission to reapply for admission retroactively under § 212(a)(9)(A)(iii) of the INA, 8 U.S.C. § 1182(a)(9)(A)(iii). In a June 2005 ruling, the IJ first concluded that she lacked jurisdiction to consider Borrego's challenges to the 1997 order of removal because, among other reasons, § 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), states that a "prior order of removal . . . is not subject to being reopened or reviewed." Next, the IJ determined that Borrego was removable as charged, finding neither credible nor plausible her assertions that she never falsely claimed United States citizenship and that she procured her B-2 visa innocently without intending to conceal her prior encounter with the INS. Finally, the IJ held that Borrego was not eligible for either a waiver of inadmissibility or an adjustment of status, and ordered her removed to Mexico.

Borrego appealed the decision of the IJ to the Board of Immigration Appeals. The Board found that the IJ correctly determined that Borrego was inadmissible because she had falsely claimed United States citizenship during her attempted entry in 1997. The Board then held that the IJ properly found that Borrego had failed to establish eligibility for an adjustment of status, since to obtain that relief an alien must be admissible. See 8 U.S.C. § 1255(a). The Board also disposed of Borrego's claim that she was eligible for a waiver of inadmissibility under § 212(d)(3) of the INA, 8 U.S.C. § 1182(d)(3), stating that such a waiver cannot be granted retroactively in removal proceedings pursuant to Matter of Fueyo, 20 I&N Dec. 84 (BIA 1989). The BIA dismissed Borrego's appeal, and she has filed a petition for review in this court.

II.

The sole issue Borrego presents in her petition for review is whether a waiver pursuant to § 212(d)(3)(A)(ii) of the INA may be granted retroactively. She argues that it can, and that the Board erred in concluding otherwise. If such a waiver can be granted retroactively, then Borrego would be able to seek an adjustment of status.

Borrego's argument that she is eligible for a retroactive waiver turns on an interpretation of § 212(d)(3)(A)(ii) of the INA. We review de novo questions of law regarding the interpretation of the INA, giving deference to the Board's reasonable interpretation of that Act. Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 501 (7th Cir. 2008). In addition, where the Board "affirms, adopts, and supplements" the IJ's decision, we review both ...


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