In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1890

MARIA E. GONZALEZ-BALDERAS,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition to Review an Order of the

Board of Immigration Appeals.

No. A 077 490 772

SUBMITTED FEBRUARY 10, 2010—DECIDED MARCH 5, 2010

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. The petitioner, a Mexican

citizen, entered the United States illegally by the use

of someone else’s documentation and was promptly

removed. 8 U.S.C. § 1225(b)(1)(A)(i). Her removal made

her ineligible to seek readmission to the United States

for five years unless she obtained permission to

reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii).
2 No. 09-1890

Rather than either wait or ask for permission to

reapply, she snuck back into the United States a month

later. This meant that she was forbidden to reapply for

permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii).

Still, here she was, undetected, and the following year

her husband, a lawful permanent resident of the United

States (since then he has become a citizen), whom she

had married shortly after her second illegal entry, filed

a visa petition on her behalf. The petition was granted,

and later she filed an application to adjust her status,

on the basis of her husband’s status, to that of a lawful

permanent resident. § 1255(i)(1).

Upon discovering that she had reentered the country

illegally after being removed, the Department of Homeland Security, though it could have removed her summarily, § 1231(a)(5), instead merely denied her application for adjustment of status and scheduled a

new removal hearing. At that hearing which she asked

the immigration judge to permit her to reapply for admission retroactive to the date of her reentry. Her

authority was 8 C.F.R. § 212.2(i)(2), which states that an

adjustment of status can be ordered retroactively. Were

that provision applicable to her notwithstanding the

statute, she could apply for adjustment of status without

waiting ten years from her second removal. But the

immigration judge, seconded by the Board of Immigration

Appeals, ruled on the authority of In re Torres-Garcia, 23

I. & N. Dec. 866 (BIA 2006), that an application for retroactive relief (which the Board calls “nunc pro tunc”—“now

for then”—relief, a term that properly refers, rather, to correcting a mistake, Central Laborers’ Pension, Welfare &
No. 09-1890 3

Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999);

King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir.

1987)) cannot be granted when the effect would be to lift

the ten-year bar.

Retroactive relief is a tool long employed by the immigration authorities, based on what they believe to be implied

statutory authority to provide relief from the harsh provisions of the immigration laws in sympathetic cases. See,

e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005);

Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004).

This case conceivably is one. The petitioner is 51 years old

and has three children, one a U.S. citizen and the others

lawful permanent residents, and apart from her illegal

entries she has been law-abiding. But the Board ruled

that the regulation cannot contravene the statute that

bars a removed alien from reapplying for admission for

ten years.

The statute is clear and the Board’s ruling correct—and

anyway the Board acted within its authority in interpreting

its own regulation not to permit the statute to be circumvented. The circuits in which the Board’s ruling has

been challenged have upheld it. Delgado v. Mukasey, 516

F.3d 65, 73 (2d Cir. 2008); Gonzales v. DHS, 508 F.3d 1227,

1241-42 (9th Cir. 2007). We now join them, elevating

dicta in Lemus-Losa v. Holder, 576 F.3d 752, 760 (7th

Cir. 2009), to a holding.

Another aspect of this case requires comment. Because

the petitioner was barred from receiving a waiver of

inadmissibility, she could not apply for an adjustment of

status. 8 U.S.C. § 1255(i)(2)(A). But rather than say that,

the immigration judge “pretermitted” the application.
4 No. 09-1890

This word is used by the immigration court and the

Board of Immigration Appeals whenever an alien is found

ineligible to apply for some form of relief. E.g., Singh v.

Gonzales, 468 F.3d 135, 136 n. 1 (2d Cir. 2006); Afful v.

Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004). The common dictionary meanings of “pretermit” are to leave undone, to

neglect, to omit, to overlook intentionally, to let pass

without mention or notice, to interrupt or terminate,

to suspend indefinitely. Singh v. Gonzales, supra, 468 F.3d

at 136 n. 1. It might seem that because the petitioner’s

application for adjustment of status is premature and

will remain so until the ten years are up, it is the last

meaning of pretermit—to suspend indefinitely—that is

the one the Board intends. It is the sense in which the

word is used in the only regulation of the Board that

we’ve found that uses it. 8 C.F.R. § 240.21(c)(1).

That would mean that the petitioner’s application for

adjustment of status would be put in the freezer until she

became eligible to apply in ten years. But that is not

correct. To obtain legal residence in the United

States, she must, when she becomes eligible to apply

for permission to reapply for admission, 8 U.S.C.

§ 1182(a)(9)(C)(ii), apply for that permission. If

permission to enter is granted, she can then reapply

for adjustment of status—but not before. To say that

her application for adjustment of status has been

“pretermitted” is therefore unnecessarily vague; her

application has been dismissed.

A further oddity is that her application for adjustment

of status was denied by the Department of Homeland
No. 09-1890 5

Security when she was discovered to have entered the

country illegally for a second time. Denied—but later

pretermitted. The reason that both the Department and

the immigration judge rejected an application by her

to adjust her status is that an alien whose application for adjustment of status has been denied by the

Department may renew the application before the immigration judge when the alien is placed in removal proceedings. 8 C.F.R. § 245.2(a)(5)(ii). That is what happened

here. But why the identical application was said to be

“denied” by the Department but “pretermitted” by the

immigration judge remains a mystery, though not one

that can help the petitioner.

She presents other grounds for relief, but they have

insufficient merit to warrant discussion. The petition

for review is

DENIED.

3-5-10