Guadalupe Ramirez v. Janet Napolitano , 435 F. App'x 644 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
GUADALUPE RAMIREZ, No. 10-35132
Plaintiff - Appellant, D.C. No. 2:09-cv-00305-RSL
v.
MEMORANDUM *
JANET NAPOLITANO, Secretary of the
Department of Homeland Security;
MICHAEL AYTES, Acting Deputy
Director, United States Citizenship and
Immigration Services; ANNE CORSANO,
Director of District 20 of CIS; KEITH
BROWN, Acting Director Seattle CIS
Field Office; DIANA WOLDER, Director,
Spoµane CIS Field Office,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasniµ, Chief District Judge, Presiding
Argued and Submitted February 7, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
Guadalupe Ramirez appeals an adverse summary judgment in her challenge
under the Administrative Procedure Act (APA) to the denial of her application for
adjustment of status. We have jurisdiction pursuant to 28 U.S.C. y 1291.
We review de novo a district court's grant of summary judgment. Herrerra
v. U.S. Citizenship & Immigration Servs., 571 F.3d 881, 885 (9th Cir. 2009). Even
viewing the facts in the light most favorable to Ms. Ramirez, we cannot conclude
that the Citizenship and Immigration Services' (CIS) denial of her application for
adjustment of status was 'arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.' 5 U.S.C. y 706(2)(A). Therefore, we
affirm the district court. See United States v. Johnson Controls, Inc., 457 F.3d
1009, 1013 (9th Cir. 2006).
Ms. Ramirez argues that, in adjudicating her V-visa, CIS granted her a
waiver of inadmissibility under 8 U.S.C. y 1182(d)(3)(A), and that CIS acted
contrary to law when it found her ineligible for the purposes of adjustment of
status. Even assuming that Ms. Ramirez was granted a y 1182(d)(3)(A) waiver, it
admitted Ms. Ramirez 'temporarily as a nonimmigrant.' 8 U.S.C. y
1182(d)(3)(A). After carefully reviewing the statutory and regulatory provisions
identified by Ms. Ramirez, we cannot conclude that CIS acted contrary to the law
when it determined that her admission to the V-visa program did not waive all
grounds of inadmissibility with respect to adjustment of status to that of a lawful
permanent resident.
CIS denied Ms. Ramirez's application for adjustment of status on the
grounds that she was inadmissible under INA yy 212(a)(9)(A)(i) and
212(a)(9)(C)(i)(II), 8 U.S.C. yy 1182(a)(9)(A)(i) and 8 U.S.C. y
1182(a)(9)(C)(i)(II),1 ineligible for an I-212 consent to reapply for admission on
account of having applied for such consent while inside the United States, and
subject to reinstatement of her prior order of removal. CIS's decision was not
contrary to the law or an abuse of discretion. See Duran-Gonzales v. Dep't of
Homeland Sec., 508 F.3d 1227, 1242 (9th Cir. 2007) ('[A]n applicant who is
inadmissible under subsection (a)(9)(C)(i)(II) [on account of having reentered
without inspection after being removed] is also ineligible to adjust his status . . .
1
Ms. Ramirez's claim that the agency's denial of her application for
adjustment of status relied solely on INA y 212(a)(9)(A)(i), 8 U.S.C.
y1182(a)(9)(A)(i), is misplaced. The denial of Ms. Ramirez's application for
adjustment of status indicates that she re-entered without inspection, and, pursuant
to INA y 241(a)(5), 8 U.S.C. y 1231(a)(5), was subject to having her prior order of
removal reinstated. Thus, while the denial of adjustment did not explicitly cite the
grounds of inadmissibility under INA y 212(a)(9)(C)(ii), 8 U.S.C. y
1182(a)(9)(C)(ii), Ms. Ramirez's illegal re-entry clearly factored into the agency
decision. Further, because the denial of adjustment and the denial of the I-212
application were issued on the same day, we read both denials in conjunction with
one another. The I-212 denial explicitly referenced INA y 212(a)(9)(C), 8 U.S.C.
y 1182(a)(9)(C), and Duran-Gonzales.
from within the United States.' );2 In re-Torres-Garcia, 23 I. & N. Dec. 866,
871-73 (BIA 2006).
We also reject Ms. Ramirez's argument that the denial of her adjustment of
status violates the APA because it is inconsistent with the ameliorative purposes of
the LIFE Act. Aµhtar v. Burzynsµi, 384 F.3d 1193, 1198 (9th Cir 2004) is
distinguishable. There, we held that INS's interpretation of ambiguous provisions
in the LIFE Act was inconsistent with the statute's overriding purpose of reuniting
families, and concluded that children eligible for a V-visa did not automatically
lose that eligibility upon turning 21. 384 F.3d at 1201-02. In contrast, here, the
statutory provisions and our binding precedent interpreting those provisions
require denial of Ms. Ramirez's application for adjustment of status.
We must also reject Ms. Ramirez's argument that because it has been more
than ten years since her last departure from the United States and her prior order of
removal has not yet been reinstated, CIS should follow an internal policy
memorandum and approve her I-212 consent to reapply for admission. First, Ms.
Ramirez's adjustment of status application was denied in August 2008, fewer than
ten years after her last departure from the United States. Accordingly, she was not
eligible for an I-212 under the internal policy memo at the time of the denial of her
2
Ms. Ramirez argues that Duran-Gonzales should not apply retroactively
to her. We previously rejected that argument in Morales-Izquierdo v. Dep't of
Homeland Sec., 600 F.3d 1076, 1090-91 (9th Cir. 2010).
application for an adjustment of status. Second, on May 19, 2009, in light of
Duran-Gonzales, CIS issued a memorandum rescinding its earlier position and
providing that aliens who are inadmissible under y 212(a)(9)(C)(i)(II) but who
have not had their prior removal orders reinstated should be denied I-212 consent
to reapply 'unless the alien is outside the United States and at least 10 years have
elapsed from the date of last departure.'3 Because Ms. Ramirez remains in the
United States, she is not eligible for an I-212 under current CIS policy.
We AFFIRM the district court.
3
See U.S. Citizenship and Immigration Services, Adjudicating Forms I-212
for Aliens Inadmissible under Section 241(a)(5) of the Immigration and Nationality
Act in Light of Gonzalez [sic] v. INS, pages 3, 6 (May 19, 2009), available at
http://www.uscis.gov/USCIS/Laws/Memoranda/AD2û20Memo-Adjudicatingû20
Formsû20I-212Á051909.pdf
FILED
Ramirez v. Naplitano, No. 10-35132 JUN 03 2011
MOLLY C. DWYER, CLERK
B. Fletcher, concurring. U.S . CO U RT OF AP PE A LS
Ms. Ramirez is the mother of four United States citizen children, and is
married to a lawful permanent resident. She has been in the United States for over
twenty years, and has a clean criminal record. Her parents and siblings all reside in
the United States. She has pursued lawful residence diligently and with reasonable
reliance on the continued availability of relief. Yet, her attempts to seeµ lawful
residence will liµely result in her deportation. Though I concur in the disposition,
it is only because I am bound by our precedent in Duran Gonzales v. Dep't of
Homeland Sec., 508 F.3d 1227, 1231 (9th Cir. 2007) and Morales-Izquierdo v.
Dep't of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010). And yet, I cannot ignore
that, as applied to this case, the law is profoundly and fundamentally unjust.
At the time Ms. Ramirez filed for adjustment of status, Ninth Circuit law
permitted an alien who had reentered the United States after having been deported
to file a Form I-212 simultaneously with her application for adjustment of status.
Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 788-89 (9th Cir. 2004). In addition to
permitting the alien to reapply for admission, under Perez-Gonzalez, a successful I-
212 application would 'cure[] any inadmissibility grounds premised on [the
alien's] prior deportation or subsequent reentry.' 379 F.3d 783. Our decision in
Duran-Gonzales, 508 F.3d 122, explicitly overruled Perez-Gonzalez, a mere thirty-
one days before Ms. Ramirez was scheduled to be interviewed in connection with
her adjustment of status application. Had CIS scheduled Ms. Ramirez's interview
in connection with her adjustment of status application just a few months earlier, or
had Duran-Gonzales been issued just a few months later, Ms. Ramirez would
liµely now be a lawful permanent resident. That this case turns on such accidents
of timing is unfair to Ms. Ramirez and to her family. Nevertheless, I must
regretfully concur.