On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A 98 724 586.
The opinion of the court was delivered by: Wood, Circuit Judge
Before FLAUM, WOOD, and WILLIAMS, Circuit Judges.
Miguel Lemus-Losa is a 34-year-old native and citizen of Mexico who is fighting removal charges. He entered the United States without inspection in 1998 or 1999 and remained for about two years before returning to Mexico. In 2003, Lemus-Losa again entered the United States without inspection and has been here ever since. When the Department of Homeland Security ("DHS") caught up with him, it filed charges seeking his removal. By then, Lemus-Losa's father (a permanent resident) had filed a petition for adjustment of status to permanent resident on behalf of Lemus-Losa, and the petition had been approved. Unfortunately for Lemus-Losa, these petitions represent only one step along the road toward adjusted status. The critical final requirement is a current "priority date." As of the time Lemus-Losa was placed in removal proceedings, his priority date had not yet come up. In plain English, that meant that Lemus-Losa was not yet eligible to complete the process of adjusting his status.
The Immigration Judge ("IJ") initially granted LemusLosa a continuance to see whether his priority date would become current in the reasonably foreseeable future, but eventually the IJ concluded that even if that happened, Lemus-Losa was statutorily ineligible for permanent residence because he had accumulated more than a year of unlawful presence. Immigration and Nationality Act ("INA") § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II). The IJ also held that 8 U.S.C. § 1255(i)-the so-called "LIFE Act," which allows aliens illegally in the United States to adjust their status-did not change the fact of LemusLosa's inadmissibility because Lemus-Losa was otherwise inadmissible under § 1182(a)(9)(B)(i)(II). The Board of Immigration Appeals ("Board" or "BIA") agreed with the IJ. Because we conclude that the Board did not adequately take into account the difference between § 1182(a)(9)(B)(i)(II) and 8 U.S.C. § 1182(a)(9)(C)(i)(I), we grant Lemus-Losa's petition for review and remand the case for further proceedings.
Lemus-Losa was born in Mexico and lived there for most of his early life. In March 1992, when Lemus-Losa was 20 years old, Lemus-Losa's father became a lawful permanent resident of the United States and immediately filed a Form I-130, Petition for Alien Relative, for his children. The petition was approved on June 16, 1992; this gave Lemus-Losa a priority date of March 30, 1992. (The priority date determines the order in which the responsible agency-now DHS-assigns actual visas.) For reasons not apparent from the record, in 1998 or 1999, Lemus-Losa entered the United States without inspection. He stayed in the country unlawfully for approximately two years before returning to Mexico. In 2003, Lemus-Losa again entered the United States without inspection and has remained here since that time.
On March 14, 2005, DHS placed Lemus-Losa in removal proceedings, charging him under 8 U.S.C. § 1182(a)(6)(A)(i) with removability as an alien present without admission or parole. Lemus-Losa responded on September 29, 2005, with an Application to Register Permanent Residence or Adjust Status (Form I-485), which he filed with the Im-migration Court. In his application, he asserted that he was eligible to adjust his status pursuant to the LIFE Act, § 1255(i), notwithstanding his unlawful entry, based on his approved visa petition. At a master calendar hearing on October 19, 2005, the IJ granted Lemus-Losa a two-month continuance, in the expectation that Lemus-Losa's priority date might be reached. (As of October 2005, DHS was issuing visas for aliens from Mexico in Lemus-Losa's preference category with priority dates earlier than March 15, 1992; it later lost ground and was handling applicants with priority dates before January 15, 1992.) At the same time that he granted the continuance, the IJ warned Lemus-Losa that he might be inadmissible anyway. The IJ pointed out that under § 1182(a)(9)(B)(i)(II), an alien is inadmissible if he has been unlawfully present in the United States for one year or more, and . . . again seeks admission within 10 years of the date of such alien's departure or removal from the United States.
(Emphasis added.) Lemus-Losa, the judge thought, might fit that bill. The IJ concluded that Lemus-Losa's inadmissibility would be addressed at the next hearing and invited him to seek a hardship waiver pursuant to 8 U.S.C. § 1182(a)(9)(B)(v).
At the December 16, 2005, hearing, Lemus-Losa requested another continuance because the visa numbers in his preference category still had not become current; in fact, as we noted earlier, they had retrogressed. LemusLosa did not offer any argument or evidence in support of a hardship waiver. The IJ refused to grant another continuance. This time, the judge squarely decided that even if a visa were immediately available to Lemus-Losa, he was inadmissible under the terms of § 1182(a)(9)(B)(i)(II) (which we abbreviate as § (B)(i)(II) from here on).
Lemus-Losa appealed to the BIA. The Board gave LemusLosa's case its full attention, admitting supplemental briefs and hearing oral argument. In a published, precedential opinion, it dismissed his appeal. See In re Miguel Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007) (cited as Lemus-Losa (BIA) below). The BIA began with the question whether, as a threshold matter, § (B)(i)(II) rendered Lemus-Losa inadmissible. The BIA rejected LemusLosa's argument that this section was inapplicable to him. Lemus-Losa had contended that the term "departure" in the section, which we have emphasized above, referred only to a departure accomplished through some kind of legal process, such as a grant of voluntary departure or permission to depart under threat of removal. Lemus-Losa had also argued that the heading of subsection (9), "Aliens previously removed," indicates that its provisions apply only to aliens who have been formally removed from the United States through some kind of removal proceeding, not to aliens who have left the country of their own volition.
The BIA was not persuaded. It held that the term "departure" in § (B)(i)(II) applied to Lemus-Losa because, in its view, the plain language of the term encompasses "any 'departure' from the United States, regardless of whether it is a voluntary departure in lieu of removal or under threat of removal, or it is a departure that is made wholly outside the context of a removal proceeding." Lemus-Losa (BIA) at 376-77. The BIA also held that the heading to subsection (9) did not limit its meaning. Even though, as the Board conceded, some provisions of § 1182(a)(9) "do explicitly refer to previously removed aliens," the Board observed that it is "well settled that the heading of a section cannot limit the plain meaning of the text, and it is of use only when it sheds light on some ambiguous word or phrase." Lemus-Losa (BIA) at 376.
Because it found the meaning of § (B)(i)(II) to be clear, the Board concluded that the section heading did not modify or otherwise explain it.
The Board then turned to what it had identified as the "principal issue" in Lemus-Losa's case: "whether an alien who is inadmissible to the United States under [§ (B)(i)(II)] may obtain adjustment of status under [the LIFE Act, § 1255(i)]." Lemus-Losa (BIA) at 375. It turned for guidance to its precedential opinion in In re Briones, 24 I. & N. Dec. 355 (BIA 2007). In Briones, the Board held that aliens inadmissible under a different part of the statute, § 1182(a)(9)(C)(i)(I), which covers "[a]liens unlawfully present after previous immigration violations," are ineligible for adjustment of status under § 1255(i). See 24 I. & N. Dec. at 370-71. (For the sake of readability, we abbreviate § 1182(a)(9)(C)(i)(I) as § (C)(i)(I) from here on.) Even though Lemus-Losa's case involved § (B)(i)(II), the Board found no reason to come to a different conclusion. It saw no distinction between aliens (such as Briones) who were inadmissible under § (C)(i)(I) "for making or attempting to make an illegal re-entry into the United States following a prior period of more than 1 year of unlawful presence," and aliens (such as LemusLosa) who were inadmissible under § (B)(i)(II) because they had "accrued more than 1 year of unlawful presence, illegally reentered the country, and then sought admission through adjustment of status within the United States." Lemus-Losa (BIA) at 378. The Board concluded that the plain language of § 1255(i)(2)(A) "unambiguously requires an applicant for adjustment of status to prove that he is 'admissible to the United States for permanent residence,' " and that aliens inadmissible under § (B)(i)(II) "necessarily fail to meet that requirement, absent an available waiver." Id. Further, the Board reaf-firmed its statement in Briones that "in every case where Congress has extended eligibility for adjustment of status to inadmissible aliens, it has done so unambiguously," that is, by express waiver. Id.
The Board rejected the possibility that its conclusion that aliens inadmissible under § (B)(i)(II) are ineligible for adjustment of status under § 1255(i) might lead to absurd consequences. This was a risk, it admitted, if aliens generally inadmissible under § 1182(a)(6)(A)(I) (i.e., aliens who have entered without inspection) were held to be ineligible under § 1255(i); such a holding would effectively eliminate the entire adjustment of status option. But, the Board thought, § 1182(a)(6)(A)(I) is not coextensive with either § (B)(i)(II) or § (C)(i)(I) (at issue respectively in Lemus-Losa's case and Briones's case). Unlike the latter two provisions, § 1182(a)(6)(A)(I) is not punitive in nature. It does not seek to punish persons who enter the United States without inspection. In contrast, the Board reasoned, § (B)(i)(II) is intended to punish aliens who seek admission after having previously accrued a period of unlawful presence. The Board concluded that this interpretation of § (B)(i)(II) was consistent with the purpose of § 1182(a)(9) as a whole; that purpose, it said, was " 'to compound the adverse consequences of immigration violations by making it more difficult for individuals who have left the United States after committing such violations to be lawfully admitted thereafter' . . . ." Lemus-Losa (BIA) at 379 (quoting In re Rodarte-Roman, 23 I. & N. Dec. 905, 909 (BIA 2006)).
Lemus-Losa's petition for review raises two issues: first, whether the Board erred in its determination that § (B)(i)(II) applied to him; and second, whether the Board correctly found that § 1255(i) is inapplicable to aliens found inadmissible under § (B)(i)(II). The Government urges us to give Chevron deference to the BIA's interpretation of both statutes. Chevron, U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). We agree that the Chevron framework applies, see Negusie v. Holder, 129 S.Ct. 1159, 1163-64 (2009), but we hasten to add that Chevron does not simply hold that the agency's interpretation always prevails. Instead, we must first ask whether the language of the statute at issue is clear. If so, then we follow the plain language of the statute. If not, then we go on to consider whether the BIA's reading is a permissible one (whether or not is the one that we would have chosen). Chevron, 467 U.S. at 842-43. See also 8 U.S.C. § 1103(a)(1); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); 8 C.F.R. § 1003.1(a)(1).
The central question before us is whether the Board acted within its Chevron powers when it concluded that § (B)(i)(II) and § (C)(i)(I) were essentially equivalent. For convenience, we set forth the relevant language of each one, including the language in § 1182(a)(9) that precedes both subparts:
(a) Classes of aliens inadmissible for visas or admission. Except as otherwise provided . . . aliens who are inadmissible under the following paragraphs are ineligible to receive visas ...