RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0096p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

FRANCISCO RAMIREZ-CANALES (05-4504); JOSE

LUIS GARCIA CORREA (06-3990), 

Petitioners,

v.

MICHAEL MUKASEY,

Respondent.

X

-

-

-

-

>

,

-

-

-

-

N

Nos. 05-4504; 06-3990

On Appeal from the Board

of Immigration Appeals.

Nos. A78 145 159; A78 121 520.

Argued: October 23, 2007

Decided and Filed: February 27, 2008 

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Jennifer M. Rotman, IMMIGRANT LAW GROUP, Portland, Oregon, for Petitioners.

Charles E. Canter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Jennifer M. Rotman, Jessica M. Boell, Stephen W. Manning,

IMMIGRANT LAW GROUP, Portland, Oregon, Ronald Kaplovitz, KAPLOVITZ &

ASSOCIATES, Sylvan Lake, Michigan, Mayra Fe Lorenzana-Miles, Brian J. Miles, D’LUGE,

MILES, MILES & CAMERON, Mount Clemens, Michigan, for Petitioners. Charles E. Canter,

Jeffrey J. Bernstein, Michelle Gorden Latour, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

_________________

OPINION _________________

BOYCE F. MARTIN, JR., Circuit Judge. Francisco Ramirez-Canales and Jose Luis Garcia

Correa both appeal the decision by the Board of Immigration Appeals to reject their application for

adjustment of status. Subsequent to oral argument before this panel, the Board of Immigration

Appeals issued a precedential interpretation of the statutes in question. We now defer to this

interpretation and AFFIRM the Board’s decision denying the petitioners adjustment of status.

However, we REMAND the case of Ramirez-Canales for consideration of equitable relief nunc pro

tunc. 

1
Nos. 05-4504; 06-3990 Ramirez-Canales, et al. v. Mukasey Page 2

1

Typically an alien who obtains a visa must apply for legal status from the United States embassy in his or her

country of origin. Thus, if an alien is illegally present in the United States at the time he or she receives a visa, she must

first leave the United States and apply from her home country, and then reenter the United States. For spouses of United

States citizens, this would entail a long and needless separation. Thus § 1255(i) was passed for “spouses, children,

parents and siblings of permanent residents or U.S. citizens...to adjust their status in the U.S. and avoid needless

I

Francisco Ramirez-Canales is a citizen of Mexico who came to the United States in 1996 and

married an American citizen in 1998. They now have one son. In 2000, his wife filed a Petition for

Alien Relative I-130 to obtain a visa for her husband. Before the petition was granted, he was

ordered to depart the country or face deportation. The petition was subsequently granted on January

17, 2002. However, under the order of voluntary departure, Ramirez-Canales had to leave by

January 23, 2002. As he was unable, during that six-day window, to have his case heard, he

departed as ordered on January 23, but returned illegally a week later. After his return, the INS

(now ICE) sent notice that he was in violation of 8 U.S.C. § 1182(a)(6) (entering without

inspection), and (a)(9) (reentering alien who, prior to reentry, had been unlawfully present for an

aggregate of greater than one year). At his hearing, Ramirez-Canales admitted to the charges, but

asked for an adjustment of status under 8 U.S.C. § 1255(i), which allows some aliens illegally

present to apply from within the United States to become legal, since he was the beneficiary of an

approved visa petition. After receiving briefs, the immigration judge ruled against Ramirez-Canales,

stating that he was inadmissible under § 1182(a)(9)(C)(i)(I), and therefore barred from adjusting his

status under § 1255(i) since that section requires that an alien be admissible. Ramirez-Canales

appealed to the Board of Immigration Appeals, which adopted the opinion of the immigration judge

and affirmed. 

Jose Garcia Correa was born in Mexico and unlawfully entered the United States in 1994.

In 2000, Garcia Correa married Margaret Anne Garcia, a United States citizen. He returned to

Mexico in January 2001 when his mother died, and subsequently re-entered the United States in

February 2001. In March of 2001 the INS filed a Notice to Appear charging that Garcia Correa was

removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), “as an alien present in the United States without

being admitted or paroled.” On September 4, 2002, the petition for an Alien Relative visa I-130 was

approved. At the removal hearing, Garcia Correa admitted the charge against him, but sought to

adjust his status under § 1255(i). After a number of preliminary hearings, the immigration judge

denied his motion, finding him inadmissible under § 1182(a)(9)(C)(i)(I), and therefore disqualified

from § 1255(i). 

II

This Court reviews questions of law concerning immigration proceedings de novo. Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). We owe deference to an agency’s

reasonable interpretation of its empowering statutes when those are ambiguous. See Chevron,

U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The Supreme Court has held that

Chevron deference to the Board’s interpretation of immigration statutes is appropriate. See INS v.

Aguirre-Aguirre, 526 U.S. 415, 424 (1999). 

A. Adjustment of Status

The two statutes in this case serve conflicting goals. Section 1182(a) lists a number of bases

that render an alien inadmissible to this country. Section 1255(i) allows aliens who entered without

inspection but who have access to a visa (typically an immigrant spouse of a citizen) to legalize their

status without leaving the country and incurring a long and needless separation from their family,

as would otherwise be required.1

 Both Ramirez-Canales and Garcia Correa raise the same question:
Nos. 05-4504; 06-3990 Ramirez-Canales, et al. v. Mukasey Page 3

separation from their loved ones.” 146 Cong. Rec. S11850-02 (daily ed. Dec. 15, 2000) (statement of Sen. Kennedy).

2

Note that “inspection” is required for admission, and therefore an alien who entered without inspection cannot

have been admitted. See 8 U.S.C. § 1101(a)(13)(A). Thus the contradiction between the statutes holds despite the use

of “inspection” in § 1255(i) and “admission” in § 1182(a)(6).

does § 1255(i), which allows adjustment of status, provide an exception to the grounds for

inadmissibility listed in § 1182(a)? Section 1182(a), “Classes of aliens ineligible for visas or

admission,” states: 

(a) Except as otherwise provided in this chapter, aliens who are inadmissible under the following

paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(6) Illegal entrants and immigration violators

(A) Aliens present without admission or parole

(i) In general. An alien present in the United States without being admitted or paroled

or who arrives in the United States at any time or place other than as designated by the

Attorney General, is inadmissible.

(9) Aliens previously removed

(C) Aliens unlawfully present after previous immigration violations

(i) In general. Any alien who – 

(I) has been unlawfully present in the United States for an aggregate period of

more than 1 year, or

(II) has been ordered removed under section 1225(b)(1) of this title, section 1229a

of this title, or any other provision of law,

and who enters or attempts to reenter the United States without being admitted is

inadmissible.

On its face, the statute renders both petitioners inadmissible: both have entered the United

States without being admitted, in violation of (a)(6), and both have reentered after remaining

unlawfully present in the United States for more than one year, in violation of (a)(9)(C)(i). 

Both have also applied for adjustment of status under 8 U.S.C. § 1255, which states: 

(i) Adjustment of status of certain aliens physically present in the United States

(1) ...an alien physically present in the United States – 

(A) who – 

(i) entered the United States without inspection; ...

may apply to the Attorney General for the adjustment of his or her status to that of an alien

lawfully admitted for permanent residence...

(2) Upon receipt of such an application...the Attorney General may adjust the status of the alien

to that of an alien lawfully admitted for permanent residence if--

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States

for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is

filed.

Because § 1255(i)(2)(A) requires that an alien be admissible, it would appear that petitioners

are disqualified as a result of their § 1182(a)(6) and (a)(9) violations. Petitioners urge, and we agree,

that such a reading is inconsistent with the overall statutory scheme. By its express language,

§ 1255(i)(1)(A)(i) applies to aliens who “entered the United States without inspection.” If all aliens

unlawfully present are inadmissible as a result of § 1182(a), and admissibility is a condition for

§ 1255(i)(2)(A) relief, then no one would ever be eligible under § 1255(i)(2)(A).2

 
Nos. 05-4504; 06-3990 Ramirez-Canales, et al. v. Mukasey Page 4

3

See 8 C.F.R. §1003.1(g). 

4

Petitioners argue that the Board ignored § 1255(i)(1)(A)(ii) and therefore its interpretation is unreasonable.

That section addresses certain types of status violations, but it does not directly conflict with § 1182(a)(9)(C)(i)(I) since

the alien must accumulate more than one year of illegal status, and must reenter the country to trigger inadmissibility.

Since in resolving this conflict the terms of these statutes are amenable to multiple

interpretations, we turn to the agency’s own interpretation of its empowering statutes. “The BIA

should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning

through a process of case-by-case adjudication.” Aguirre-Aguirre, 526 U.S. at 425 (internal

quotations and citations omitted). In a recent opinion, the Board of Immigration Appeals has

directly addressed the relationship between § 1182(a) and § 1255(i). See In Re Alonzo Briones, 24

I&N Dec. 355 (BIA 2007). As a precedential opinion,3 Briones is the type of case-by-case

adjudication giving meaning to ambiguous statutes to which we owe deference. See United States

v. Mead Corp., 533 U.S. 218, 227 (2001). We therefore review the Board’s interpretation for

reasonableness. See Chevron, 467 U.S. at 845.

The Board took up the issue of “whether adjustment of status under section [1255(i)] of the

Act is available to an alien who is inadmissible to the United States under section

[1182(a)(9)(C)(i)(I)] of the Act.” Briones, 24 I&N Dec. at 357. After recognizing the conflict in

the statutory language described above, the Board acknowledged that § 1255(i) must provide an

exception to § 1182(a)(6), but only because § 1255(i) would otherwise be rendered superfluous: 

In our view, section [1255(i)] adjustment remains available to aliens inadmissible

under section [1182(a)(6)(A)(i)] only because a contrary interpretation would render

the language of section [1255(i)] so internally contradictory as to effectively vitiate

the statute, an absurd result that Congress is presumed not to have intended. 

Id. at 365. The Board then distinguished § 1182(a)(6) from § 1182(a)(9)(C)(i)(I): though both

penalize illegal presence, § 1182(a)(9)(C)(i)(I) “applies only to that subset of such aliens who are

recidivists, that is, those who have departed the United States after accruing an aggregate period of

‘unlawful presence’ of more than 1 year and who thereafter entered or attempted to reenter the

United States unlawfully.” Id. at 365-66 (emphasis in original). As a result of this distinction, not

all of those covered by the language in § 1255(i) – entry without inspection – are rendered

inadmissible by § 1182(a)(9)(C)(i)(I): so long as an alien enters illegally only once, she is not

inadmissible, and may apply for adjustment.4

 Because there is no direct conflict, the Board found

that § 1255(i) does not provide any exception to § 1182(a)(9)(C)(i)(I). Id. at 370-71. Finally, the

Board noted that § 1182(a)(9)(C)(i)(I) and § 1182(a)(9)(C)(i)(II) cannot be distinguished, and

therefore both preclude § 1255(i) adjustment. Id. at 367. 

The Board further supported its reasoning with legislative history and analysis of other

provisions of the Act. It pointed out, for example, that adjustment of status was originally limited

to aliens legally admitted to the United States. Id. at 359. This system, which was designed to

encourage aliens to apply from their home country through the consulate, faced a crisis after more

than two and a half million aliens were legalized by statute in 1986. Id. Family members of those

legalized aliens were forced to leave the country in order to apply for a visa from their home

countries. Id. To relieve this strain and allow families to stay together, Congress passed § 1255(i),

extending the ability to apply for legal status to those illegally within the country. But it included

a sunset provision since it was designed to alleviate this unique crisis. See id. at 360. Though the

sunset provision was effectively extended multiple times, the nature of the provision remains limited

to dealing with the particular problem of aliens who will likely obtain visas being forced into long

and expensive separations from their families while they apply through their home consulates. This

history supports a reading of the statute that allows aliens illegally present to apply, but does not
Nos. 05-4504; 06-3990 Ramirez-Canales, et al. v. Mukasey Page 5

allow those who have left and reentered the country to apply: an alien who leaves the country is no

longer within that class of persons that the statute was originally designed to aid. 

We cannot say that the Board’s conclusions were unreasonable in light of its careful and

well-supported arguments. We therefore owe deference to the Board’s interpretation. See AguirreAguirre, 526 U.S. at 425. Accordingly, we find that both Ramirez-Canales and Garcia Correa are

inadmissible under § 1182(a)(9)(C)(i)(I) due to their illegal reentry into this country after accruing

greater than one year of illegal presence. Because they are inadmissible, and because

§ 1255(i)(1)(A)(i) does not provide an exception, they cannot now adjust their status under

§ 1255(i).

B. Relief nunc pro tunc

Ramirez-Canales makes an additional argument that he is entitled to relief under § 1255(i)

nunc pro tunc. Nunc pro tunc relief is an equitable power to grant an order now as if it were granted

sometime in the past. Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004). In Patel v. Gonzales, 432

F.3d 685, 693 (6th Cir. 2005), this Court explained:

A nunc pro tunc order is an order that has retroactive legal effect. The BIA has long

used nunc pro tunc orders to remedy the harshness of United States immigration

laws. Among other uses, the BIA has issued nunc pro tunc orders to retroactively

legalize an alien’s admission into the United States thereby eliminating the grounds

for deporting the alien.

(internal citations omitted). As an equitable power, its scope is broad, and should be applied as

justice requires so long as it is not barred by statute. Edwards, 393 F.3d at 310. 

While the equitable power to grant orders nunc pro tunc is conceptually broad, its actual

application by the Board appears to be limited to two general situations. First, the Board uses the

power to retroactively grant the Attorney General’s discretion to permit an alien to reapply for

admission after being deported and subsequently reentering the country. See, e.g., In re Felipe

Garcia-Linares, 21 I. & N. Dec. 254 (BIA 1996); Matter of Rapacon, 14 I&N Dec. 375 (R.C. 1973);

In the Matter of S----- N----- 6 I. & N. Dec. 73 (BIA 1954); In the Matter of L----- 1 I. & N. Dec. 1

(A.G. 1940). Second, the Board uses the power to apply the law as it existed at the time of the

violation instead of current law. See Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); Matter

of T, 6 I. & N. Dec. 410, 413-14 (BIA 1954). But see Matter of Talanoa, 13 I. & N. Dec. 161 (BIA

1969). The first line of cases is of little help to petitioners as those precedents turn on the Attorney

General’s discretionary authority. Most of these cases were decided under old section 212(a)(17)

of the Immigration and Nationality Act of 1952 that gave the Attorney General discretion to grant

requests for permission to reapply following deportation or removal. However, under current law,

the Attorney General has no such discretion for ten years after an alien has violated

§ 1182(a)(9)(C)(i). See In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006). The Board has found

that the Attorney General cannot use nunc pro tunc relief to grant retroactively what could not be

granted prospectively. Id. at 876. The second line of cases is inapplicable to this case since the law

has not changed.

The immigration judge denied Ramirez-Canales relief nunc pro tunc under the first line of

cases because the Attorney General has no discretion to waive violations of § 1182(a)(9)(C)(i).

However, the relief sought by Ramirez-Canales is of a different nature. He requests that the court

grant his application for adjustment of status retroactively – which would have the effect of undoing

his subsequent violation of § 1182(a)(9). In that case, no waiver would be required because there

would be no violation to waive. There is some support for this argument from past Board decisions.

See Matter of T, 6 I. & N. Dec. at 414 (BIA 1954) (granting a waiver of violations under an old law
Nos. 05-4504; 06-3990 Ramirez-Canales, et al. v. Mukasey Page 6

and thereby eliminating the grounds for a violation of a subsequent law). While the availability of

this type of relief is unclear, we are hesitant to find the Board is without such authority since it could

serve an important error-correcting function. For example, if the agency were at fault in delaying

Ramirez-Canales’s application for adjustment of status until after the date at which he was required

to leave the country, the Board could use nunc pro tunc authority to grant relief. Because neither

the Board nor the immigration judge addressed the availability of this type of nunc pro tunc relief,

we remand the case for a determination of whether the Board may retroactively grant RamirezCanales’s application for adjustment of status. 

III

The Board’s reasonable interpretation of the relationship between § 1255(i) and § 1182(a)

requires that we AFFIRM the denial of adjustment of status for both Ramirez-Canales and Garcia

Correa. However, we REMAND for consideration of Ramirez-Canales’s request for relief nunc pro

tunc.