FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA MATILDE CARRILLO DE 

PALACIOS,

No. 09-72059 Petitioner,

Agency No.

v.  A026-630-010

ERIC H. HOLDER JR., Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 11, 2011—Seattle, Washington

Filed June 21, 2011

Before: Susan P. Graber and Milan D. Smith, Jr., Circuit

Judges, and Roger T. Benitez,* District Judge.

Opinion by Judge Milan D. Smith, Jr.

*The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation. 

8401
COUNSEL

Mari Matsumoto, Robert Pauw (argued), and Erin Cipolla,

Gibbs Houston Pauw, Seattle, Washington, for the petitioner.

Tony West, John S. Hogan, Channah M. Farber, and Jessica

E. Sherman (argued), Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

8404 CARRILLO DE PALACIOS v. HOLDER
OPINION

M. SMITH, Circuit Judge:

Petitioner Maria Matilde Carrillo de Palacios (Carrillo de

Palacios) petitions for review of a decision of the Board of

Immigration Appeals (BIA). The BIA determined that Carrillo de Palacios is ineligible for adjustment of status under

section 245(i) of the Immigration and Nationality Act (INA),

8 U.S.C. § 1255(i), because she is inadmissible under INA

section 212(a)(9)(C)(i), 8 U.S.C. § 1182(a)(9)(C)(i), and is

not eligible for the exception to inadmissibility in INA section

212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii).

We deny the petition, as the BIA correctly concluded that

Carrillo de Palacios returned to the United States after having

been “unlawfully present in the United States for an aggregate

period of more than 1 year,” which renders her inadmissible

under 8 U.S.C. § 1182(a)(9)(C)(i)(I). We reject her argument

that the § 1182(a)(9)(C)(i)(I) one-year period of unlawful

presence must occur after the April 1, 1997 effective date of

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), Pub. L. No. 104-208, div. C, § 309(a),

110 Stat. 3009-546, 3009-625, reprinted in 8 U.S.C. § 1101

note, at 35 (2006) (Effective Date of 1996 Amendments). The

BIA also correctly concluded that she does not satisfy the

requirements of 8 U.S.C. § 1182(a)(9)(C)(ii)’s exception to

inadmissibility. We hold that in order to be eligible under 8

U.S.C. § 1182(a)(9)(C)(ii), an alien must remain outside the

United States for more than ten years before returning to the

United States.

FACTUAL AND PROCEDURAL BACKGROUND

Carrillo de Palacios is a native and citizen of Mexico. The

Government instituted removal proceedings against her in

2005, alleging that she had entered the United States without

being admitted or paroled, and therefore was subject to

CARRILLO DE PALACIOS v. HOLDER 8405
removal under 8 U.S.C. § 1182(a)(6)(A)(i). She conceded

removability and sought to adjust her status to that of a lawful

permanent resident under 8 U.S.C. § 1255(i). The Government opposed the adjustment-of-status application on the

ground that she had been deported in December 1984 and

subsequently reentered the country without permission in

1992 and 1997.

The immigration judge granted the adjustment-of-status

application, concluding that cases such as Acosta v. Gonzales,

439 F.3d 550 (9th Cir. 2006), provided the judge authority to

“cure the prior deportation and subsequent illegal return.” The

BIA then reversed in an unpublished decision, holding in relevant part that Carrillo de Palacios was inadmissible under 8

U.S.C. § 1182(a)(9)(C)(i), that she did not qualify for the

exception to inadmissibility under 8 U.S.C. § 1182(a)(9)

(C)(ii), and that, as a result, she was not eligible for adjustment of status under 8 U.S.C. § 1255(i). The BIA accordingly

ordered her removed.

JURISDICTION AND STANDARD OF REVIEW

Because the BIA’s decision was issued in 2009, our review

is governed by the REAL ID Act of 2005, Pub. L. No. 109-

13, div. B, 119 Stat. 231. When addressing adjustment-ofstatus issues contained in final orders of removal, we have

jurisdiction to review questions of law under 8 U.S.C.

§ 1252(a)(2)(D). Morales-Izquierdo v. Dep’t of Homeland

Sec., 600 F.3d 1076, 1084 (9th Cir. 2010). We review those

questions of law de novo. Id. at 1086 n.9.

DISCUSSION

I. Statutory Framework

[1] To obtain adjustment of status under INA section

245(i), an alien must be “admissible to the United States for

permanent residence.” 8 U.S.C. § 1255(i)(2)(A). Aliens who

8406 CARRILLO DE PALACIOS v. HOLDER
are inadmissible under INA section 212(a)(9)(C), 8 U.S.C.

§ 1182(a)(9)(C), are ineligible for adjustment of status. That

provision, entitled “Aliens unlawfully present after previous

immigration violations,” states:

(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. 

(ii) Exception 

Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s

last departure from the United States if, prior to the

alien’s reembarkation at a place outside the United

States or attempt to be readmitted from a foreign

contiguous territory, the Secretary of Homeland

Security [Secretary] has consented to the alien’s

reapplying for admission. 

8 U.S.C. § 1182(a)(9)(C)(i)-(ii).1

1Clause (iii), which allows the Secretary to waive clause (i) for certain

Violence Against Women Act self-petitioners, is not at issue in this case.

See 8 U.S.C. § 1182(a)(9)(C)(iii); see also Violence Against Women and

Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,

119 Stat. 2960. 

CARRILLO DE PALACIOS v. HOLDER 8407
Although our construction of these provisions might be

viewed as occasionally inconsistent, the law of our circuit is

now settled: according Chevron deference to the BIA’s interpretation of the relevant statutes, we have held that aliens who

are inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I)-(II) are

ineligible for adjustment of status under 8 U.S.C. § 1255(i).

See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984).2 Aliens who are otherwise inadmissible

under 8 U.S.C. § 1182(a)(9)(C)(i) are deemed admissible only

if they qualify for the exceptions to inadmissibility stated in

§ 1182(a)(9)(C)(ii)-(iii). The exception at issue in this case,

§ 1182(a)(9)(C)(ii), “requir[es] that [the alien] obtain permission to apply for readmission from outside the United States

after ten years have lapsed from the date of his last departure.” Gonzales, 508 F.3d at 1242.

II. Inadmissibility under 8 U.S.C. § 1182(a)(9)(C)

The BIA concluded that Carrillo de Palacios is inadmissible

under both 8 U.S.C. § 1182(a)(9)(C)(i)(I) and § 1182(a)(9)(C)

(i)(II), and thus is ineligible for adjustment of status under

§ 1255(i). We agree with the BIA’s conclusion regarding

§ 1182(a)(9)(C)(i)(I). We need not address the arguments

regarding 8 U.S.C. § 1182(a)(9)(C)(i)(II), and we express no

opinion regarding the BIA’s analysis of that provision.

2

In Garfias-Rodriguez v. Holder, ___ F.3d ___, No. 09-72603, 2011

WL 1346960, at *5-6 (9th Cir. Apr. 11, 2011), we abrogated our earlier

decision in Acosta, 439 F.3d 550, in light of the BIA’s holding in In re

Briones, 24 I. & N. Dec. 355 (B.I.A. 2007), that aliens may not adjust their

status under 8 U.S.C. § 1255(i) if they are inadmissible under

§ 1182(a)(9)(C)(i)(I). Similarly, in Gonzales v. Department of Homeland

Security, 508 F.3d 1227, 1241-42 (9th Cir. 2007), we abrogated PerezGonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), in light of the BIA’s

decision in In re Torres-Garcia, 23 I. & N. Dec. 866 (B.I.A. 2006), which

held that aliens may not adjust their status under § 1255(i) if they are inadmissible under § 1182(a)(9)(C)(i)(II). We have further held that the holdings of Briones and Torres-Garcia, and our decisions deferring to those

holdings, may be applied retroactively. Garfias-Rodriguez, 2011 WL

1346960, at *6-7; Morales-Izquierdo, 600 F.3d at 1088-90. 

8408 CARRILLO DE PALACIOS v. HOLDER
[2] The statutory text is straightforward: an alien is inadmissible if she “has been unlawfully present in the United

States for an aggregate period of more than 1 year” and subsequently “enters . . . the United States without being admitted.”

8 U.S.C. § 1182(a)(9)(C)(i)(I). The parties agree that Carrillo

de Palacios was unlawfully present for more than one year

between 1981 and 1983, and that she returned without being

admitted in September 1997. These facts establish that she

satisfies both elements of § 1182(a)(9)(C)(i)(I): she “enter[ed]

. . . the United States without being admitted” in 1997 after

having “been unlawfully present . . . for an aggregate period

of more than 1 year” between 1981 and 1983. Id.; see also

Garfias-Rodriguez, 2011 WL 1346960, at *1, *6 (“[Garfias]

unlawfully entered the United States in 1996 and departed the

country, once in 1999 and once in 2001 . . . . Garfias is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) . . . .”). The BIA

therefore correctly concluded that she is inadmissible under

§ 1182(a)(9)(C)(i)(I).

In response, Carrillo de Palacios argues that

§ 1182(a)(9)(C)(i)(I) is impermissibly retroactive as applied

to her case. She explains that her “accrual of unlawful presence prior to her most recent entry into the United States in

September[ ] 1997, does not cause her to be inadmissible

because her unlawful presence accrued before April 1, 1997,

the [effective] date of . . . [§ 1182(a)(9)](C)(i)(I).”

The Supreme Court addressed a similar argument about

IIRIRA’s retroactivity in Fernandez-Vargas v. Gonzales, 548

U.S. 30 (2006). The Court began by describing the retroactivity analysis set forth in Landgraf v. USI Film Products, 511

U.S. 244, 278 (1994), and later cases:

We first look to whether Congress has expressly prescribed the statute’s proper reach, and in the absence

of language as helpful as that we try to draw a comparably firm conclusion about the temporal reach

specifically intended by applying our normal rules of

CARRILLO DE PALACIOS v. HOLDER 8409
construction. If that effort fails, we ask whether

applying the statute to the person objecting would

have a retroactive consequence in the disfavored

sense of affecting substantive rights, liabilities, or

duties on the basis of conduct arising before its

enactment. If the answer is yes, we then apply the

presumption against retroactivity by construing the

statute as inapplicable to the event or act in question

owing to the absence of a clear indication from Congress that it intended such a result.

Fernandez-Vargas, 548 U.S. at 37-38 (alterations, citations,

and internal quotation marks omitted).

The Court applied this two-part analysis to reject

Fernandez-Vargas’s retroactivity challenge to IIRIRA’s

reinstatement-of-removal provision, 8 U.S.C. § 1231(a)(5).

The statute provided that if “ ‘an alien has reentered the

United States illegally after having been removed or having

departed voluntarily, under an order of removal, the prior

order of removal is reinstated from its original date and . . .

the alien shall be removed under the prior order at any time

after the reentry.’ ” Fernandez-Vargas, 548 U.S. at 34-35

(quoting 8 U.S.C. § 1231(a)(5)). Fernandez-Vargas argued

that the statute did not apply to him because he reentered the

country in 1982, long before the provision went into effect,

and his petition accordingly should have been decided under

the more favorable pre-IIRIRA legal regime. Id. at 33-35, 38.

The Court rejected Fernandez-Vargas’s arguments in light

of Landgraf. Under the first step of Landgraf, it noted that

Congress had not explicitly directed that § 1231(a)(5) was to

be applied either prospectively or retroactively, and held that

the standard tools of statutory interpretation failed to resolve

the question. Id. at 38, 41. It then applied the second step of

Landgraf, and emphasized that retroactivity generally

involves the imposition of “a new disability consequent to a

8410 CARRILLO DE PALACIOS v. HOLDER
completed act.” Id. at 45. Under this approach, the reinstatement statute was not impermissibly retroactive: 

[I]t is the conduct of remaining in the country after

entry that is the predicate action; the statute applies

to stop an indefinitely continuing violation that the

alien himself could end at any time by voluntarily

leaving the country. It is therefore the alien’s choice

to continue his illegal presence, after illegal reentry

and after the effective date of the new law, that subjects him to the new and less generous legal regime,

not a past act that he is helpless to undo up to the

moment the Government finds him out.

Id. at 44. Thus, the statute was not retroactive. Id. at 45.

The Court explained that its conclusion was consistent with

the policy rationales underlying retroactivity, id. at 45-46,

which had been described in an earlier case as “fair notice,

reasonable reliance, and settled expectations,” INS v. St. Cyr,

533 U.S. 289, 321 (2001) (internal quotation marks omitted).

These policies were not implicated with respect to FernandezVargas, because he “could not only have chosen to end his

continuing violation and his exposure to the less favorable

law, he even had an ample warning that the new law could be

applied to him and ample opportunity to avoid that very possibility . . . .” Fernandez-Vargas, 548 U.S. at 45.

[3] The conclusions in Fernandez-Vargas apply with equal

force to Carrillo de Palacios’s retroactivity argument. The

first step of the analysis—“whether Congress has expressly

prescribed the statute’s proper reach,” or whether the “normal

rules of construction” reveal a “firm conclusion about the

temporal reach specifically intended” by Congress, id. at 37

(internal quotation marks omitted)—is inconclusive with

respect to § 1182(a)(9)(C)(i)(I). Carrillo de Palacios emphasizes IIRIRA’s effective date provision, which states that the

statute is effective on April 1, 1997. See IIRIRA § 309(a)

CARRILLO DE PALACIOS v. HOLDER 8411
(providing that certain amendments, including the addition of

§ 1182(a)(9)(C), “shall take effect on the first day of the first

month beginning more than 180 days after the date of the

enactment of this Act”). On one hand, her argument carries

some persuasive force: “A statement that a statute will

become effective on a certain date does not even arguably

suggest that it has any application to conduct that occurred at

an earlier date.” Landgraf, 511 U.S. at 257. But on the other

hand, her argument is not conclusive: “the instruction that the

provisions are to ‘take effect upon enactment’ . . . mean[s]

that courts should evaluate each provision of the Act in light

of ordinary judicial principles concerning the application of

new rules to pending cases and preenactment conduct.” Id. at

280. Thus, the statute’s effective date provision, taken in isolation, does not conclusively determine whether it applies

only to future conduct, or to prior conduct as well.

[4] In an attempt to invoke “ordinary judicial principles” of

statutory construction, id., the Government notes that IIRIRA

explicitly states that the period of unlawful presence under an

analogous neighboring subsection, § 1182(a)(9)(B),3 begins to

accrue upon the effective date of IIRIRA. That effective date

provision states: “In applying section 212(a)(9)(B) of the

3That subsection provides: 

Any alien . . . who— 

(I) was unlawfully present in the United States for a period of

more than 180 days but less than 1 year, voluntarily departed the

United States . . . prior to the commencement of proceedings

under section 1225(b)(1) of this title or section 1229a of this title,

and again seeks admission within 3 years of the date of such

alien’s departure or removal, or 

(II) has been unlawfully present in the United States for one

year or more, and who again seeks admission within 10 years of

the date of such alien’s departure or removal from the United

States, 

is inadmissible. 

8 U.S.C. § 1182(a)(9)(B)(i) (footnote omitted). 

8412 CARRILLO DE PALACIOS v. HOLDER
Immigration and Nationality Act, [8 U.S.C. § 1182(a)(9)(B),]

. . . no period before the [IIRIRA] title III—A effective date

[i.e., April 1, 1997] shall be included in a period of unlawful

presence in the United States.” IIRIRA § 301(b)(3). In contrast, the subsection at issue here, 8 U.S.C. § 1182(a)(9)(C),

contains no such forward-looking effective date provision.

Instead, § 1182(a)(9)(C) is governed by IIRIRA’s general

effective date provision, which states that many of IIRIRA’s

provisions, including § 1182(a)(9)(C), “shall take effect on”

April 1, 1997. IIRIRA § 309(a). Unlike the specific effective

date provision governing the accrual of unlawful presence

under § 1182(a)(9)(B), this generic effective date provision

makes no reference to the accrual of unlawful presence under

§ 1182(a)(9)(C)(i)(I). See id.

[5] According to the Government, these contrasting effective date provisions reveal Congress’s intent that

§ 1182(a)(9)(C)(i)(I) applies retroactively to unlawful presence that accrued prior to April 1, 1997. See Mackey v. Lanier

Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988)

(“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of

that same law.”). We agree with the Government that

§ 1182(a)(9)(B) is relevant to our analysis, but we disagree

that it is conclusive. Section 1182(a)(9)(B)’s forward-looking

effective date provision persuades us that Congress did not

“specifically intend[ ]” for § 1182(a)(9)(C)’s aggregateunlawful-presence provision to operate prospectively.

Fernandez-Vargas, 548 U.S. at 37. Given that

§ 1182(a)(9)(B) is explicitly limited to prospective applications, Congress obviously knew how to reach the same result

with respect to § 1182(a)(9)(C), and apparently declined to do

so.

While the contrast between § 1182(a)(9)(B) and

§ 1182(a)(9)(C) persuades us that Congress did not clearly

intend § 1182(a)(9)(C)(i)(I) to have an exclusively prospective effect, we do not view this as a sufficiently clear stateCARRILLO DE PALACIOS v. HOLDER 8413
ment that Congress intended § 1182(a)(9)(C)(i)(I) to operate

retroactively. In the first step of the Landgraf analysis, we

must “determine whether Congress has expressly prescribed

the statute’s proper reach.” Landgraf, 511 U.S. at 280

(emphasis added). At this stage of the analysis, a mere “inference of intent to apply [a] . . . provision retroactively” is

insufficient, because “we require a clear statement for that.”

Fernandez-Vargas, 548 U.S. at 41. No such “clear statement”

of retroactivity exists with respect to § 1182(a)(9)(C)(i)(I), so

we must proceed to the second step of Landgraf. See, e.g.,

Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1325 (9th Cir.

2006) (“[W]e must proceed to the second step of the Landgraf

approach unless Congress’s intent that the statute be given

retroactive application is clear.”).

Under the second step of the analysis, “we ask whether

applying the statute to the person objecting would have a

retroactive consequence in the disfavored sense of ‘affecting

substantive rights, liabilities, or duties on the basis of conduct

arising before its enactment.’ ” Fernandez-Vargas, 548 U.S.

at 37 (alterations omitted) (quoting Landgraf, 511 U.S. at

278). It is important to define the “conduct” that the statute

addresses. “The conclusion that a particular rule operates

‘retroactively’ . . . concern[s] the nature and extent of the

change in the law and the degree of connection between the

operation of the new rule and a relevant past event.” Landgraf, 511 U.S. at 270 (emphasis added). A statute is retroactive if it creates a “new disability consequent to a completed

act.” Fernandez-Vargas, 548 U.S. at 45 (emphasis added).

“[A] statute ‘is not made retroactive merely because it draws

upon antecedent facts for its operation.’ ” Landgraf, 511 U.S.

at 269 n.24 (quoting Cox v. Hart, 260 U.S. 427, 435 (1922)).

A law that applies to conduct occurring “after the effective

date of the new law” may “look[ ] back to a past act” without

being impermissibly retroactive. Fernandez-Vargas, 548 U.S.

at 44; see also McAndrews v. Fleet Bank of Mass., N.A., 989

F.2d 13, 16 (1st Cir. 1993) (“[A] statute may modify the legal

effect of a present status or alter a preexisting relationship

8414 CARRILLO DE PALACIOS v. HOLDER
without running up against the retroactivity hurdle. . . . So

long as a neoteric law determines status solely for the purpose

of future matters, its application is deemed prospective.”).

[6] Under this line of analysis, Carrillo de Palacios’s retroactivity argument fails. Section 1182(a)(9)(C)(i)(I) regulates

the conduct of reentering the United States without being

admitted, not the conduct of being unlawfully present for

more than one year. The statute uses the present tense “enters

or attempts to reenter” when referring to the alien’s reentry,

but uses the participle “has been unlawfully present” when

referring to the alien’s unlawful presence. 8 U.S.C.

§ 1182(a)(9)(C)(i)(I); see also 1 U.S.C. § 1 (“words used in

the present tense include the future as well as the present”);

United States v. Cook, 497 F.2d 753, 767 (9th Cir. 1972) (Ely,

J., dissenting) (noting that past or perfect participle refers to

conduct that is “complete” rather than “in progress”). As a

result, it is the alien’s present or future reentry that triggers

§ 1182(a)(9)(C)(i)(I), not her past unlawful presence. See

Cox, 260 U.S. at 435 (“The language in terms applies to one

who at the time of the enactment occupied a particular status,

viz. the status of a person who has done the things enumerated. A statute is not made retroactive merely because it

draws upon antecedent facts for its operation.”).

[7] Here, the legal “disability” (inadmissibility) arises from

the alien’s post-IIRIRA act of unlawfully entering the country, not the alien’s pre-IIRIRA accrual of unlawful presence.

Fernandez-Vargas, 548 U.S. at 45. The alien’s prior unlawful

presence is merely an “antecedent fact[ ]” that limits the scope

of § 1182(a)(9)(C)(i)(I)’s post-IIRIRA application. Landgraf,

511 U.S. at 269 n.24 (internal quotation marks omitted). In

other words, § 1182(a)(9)(C)(i)(I) applies on account of “the

alien’s choice to [reenter the country] after the effective date

of the new law,” not on account of “a past act,” such as prior

unlawful presence, “that he is helpless to undo up to the

moment the Government finds him out.” Fernandez-Vargas,

548 U.S. at 44. Because the relevant conduct was Carrillo de

CARRILLO DE PALACIOS v. HOLDER 8415
Palacios’s reentry “without being admitted” in September

1997 (after IIRIRA became effective), not her “unlawful[ ]

presen[ce] . . . for an aggregate period of more than 1 year”

in the early 1980s, § 1182(a)(9)(C)(i)(I) does not have a retroactive effect. 8 U.S.C. § 1182(a)(9)(C)(i)(I); see also United

States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir. 1994)

(rejecting retroactivity challenge to criminal reentry statute

and stating that, “[f]or purposes of analyzing repeat offender

statutes and statutes increasing penalties for future crimes

based on past crimes, the relevant ‘offense’ is the current

crime, not the predicate crime”); accord United States v.

Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999) (en banc) (“The

Supreme Court and this court uniformly have held that recidivist statutes do not violate the Ex Post Facto Clause if they are

on the books at the time the present offense was committed.”

(alteration and internal quotation marks omitted)).4

III. Exception to Inadmissibility under 8 U.S.C.

§ 1182(a)(9)(C)(ii) 

Because Palacios is inadmissible under 8 U.S.C.

§ 1182(a)(9)(C)(i)(I), she may only seek adjustment of status

under § 1255(i) if she qualifies under the exception to inad4Having independently analyzed the relevant statutes and case law, we

reject Carrillo de Palacios’s argument that we should defer to agency

interpretations of § 1182(a)(9)(C)(i)(I). “Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, there is, for Chevron purposes, no

ambiguity in such a statute for an agency to resolve.” St. Cyr, 533 U.S. at

320 n.45 (citation omitted). 

Under the less-deferential Skidmore analysis, we find Carrillo de Palacios’s administrative authorities to be unpersuasive. See Skidmore v. Swift

& Co., 323 U.S. 134, 140 (1944). Carrillo de Palacios relies entirely on

agency dicta and conclusory, ipse dixit assertions. We decline to defer to

these statements under Skidmore, as they lack the “thoroughness evident

in [their] consideration, the validity of [their] reasoning,” or any of the

other typical “factors which give [them] power to persuade.” Skidmore,

323 U.S. at 140. 

8416 CARRILLO DE PALACIOS v. HOLDER
missibility set forth in § 1182(a)(9)(C)(ii). Garfias-Rodriguez,

2011 WL 1346960, at *6; see also Morales-Izquierdo, 600

F.3d at 1079 (discussing § 1182(a)(9)(C)(ii) with respect to

§ 1182(a)(9)(C)(i)(II)); Gonzales, 508 F.3d at 1231 (same).

[8] We have previously explained the mechanics of

§ 1182(a)(9)(C)(ii): “while residing outside the United

States,” the alien must “appl[y] for and receive[ ] advance

permission from the Secretary of Homeland Security . . . to

reapply for admission.” Morales-Izquierdo, 600 F.3d at 1079.

However, the alien “is not eligible for such advance permission until ten years have elapsed since his [or her] last departure from the United States. This is commonly known as the

‘ten-year bar’ to readmission.” Id. (citation omitted); see also

Gonzales, 508 F.3d at 1231 (“An alien inadmissible under

[§ 1182(a)(9)(C)(i)], however, may seek admission into the

United States if: (1) he has been absent from the United States

more than ten years, and (2) he has received the consent of the

Secretary of Homeland Security to the application for readmission.”).

Carrillo de Palacios argues that these precedents are inapposite to her case. She notes that the prior cases involved petitioners who requested § 1182(a)(9)(C)(ii) relief within ten

years of leaving the United States. E.g., Morales-Izquierdo,

600 F.3d at 1079; Torres-Garcia, 23 I. & N. Dec. at 873. In

her case, by contrast, she “last departed the United States in

1992,” and she filed her application for readmission in 2007,

“more than 10 years after her last departure from the United

States.” (Emphasis in original.)

[9] Even if we agreed with Carrillo de Palacios that the

existing cases constitute dicta with respect to her particular

circumstances, we may not lightly brush aside the reasoning

and analysis contained in an unbroken chain of case law. We,

the BIA, and our sister circuits have all stated that

§ 1182(a)(9)(C)(ii) requires that the alien be “absent from the

United States more than ten years” before applying to the SecCARRILLO DE PALACIOS v. HOLDER 8417
retary. Gonzales, 508 F.3d at 1231.5

 Phrased differently, the

alien must “exit the United States and wait ten years before

applying.” Perez-Gonzalez v. Gonzales, 403 F.3d 1116, 1117

(9th Cir. 2005) (Gould, J., dissenting from order denying

motion to reconsider) (internal quotation marks omitted),

cited with approval by Torres-Garcia, 23 I. & N. Dec. at 875.

[10] Carrillo de Palacios’s argument places undue weight

on one portion of the relevant clause, while ignoring the surrounding statutory language. She emphasizes the phrase “an

alien seeking admission more than 10 years after the date of

the alien’s last departure from the United States.” 8 U.S.C.

§ 1182(a)(9)(C)(ii). She last departed in 1992 and filed her

application in 2007, so, according to her reasoning, she satisfies the requirements of § 1182(a)(9)(C)(ii). But that clause

also requires that the alien must obtain the Secretary’s consent

“prior to the alien’s reembarkation at a place outside the

United States or attempt to be readmitted from a foreign contiguous territory.” Id. Although the statute is subject to different interpretations, we conclude that the two sentences work

in tandem: ten years must elapse between the time the alien

“depart[s]” the United States and the time the alien “reembark[s]” or otherwise returns to the United States. If ten years

must elapse between departure and return, then it necessarily

follows that those ten years must be spent outside the United

States.

5

See also Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir. 2008) (stating

that the alien may only “seek permission to reapply for admission from

outside of the United States after ten years have passed since his most

recent departure from the United States”); Mortera-Cruz v. Gonzales, 409

F.3d 246, 250 n.4 (5th Cir. 2005) (noting that the alien must have “been

outside the United States more than 10 years since his or her last departure”); Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 885 (10th Cir. 2005)

(describing requirement as “an unwaivable ten-year period outside of the

United States”), aff’d, 548 U.S. 30 (2006); Torres-Garcia, 23 I. & N. Dec.

at 875 (noting that the exception applies “ ‘only after the alien has been

outside the United States for ten years’ ” (quoting Berrum-Garcia v. Comfort, 390 F.3d 1158, 1167 (10th Cir. 2004)). 

8418 CARRILLO DE PALACIOS v. HOLDER
Any lingering doubts about § 1182(a)(9)(C)(ii) can be

resolved by examining the legislative scheme as a whole. See

Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60

(2004) (“A provision that may seem ambiguous in isolation is

often clarified by the remainder of the statutory scheme . . . .”

(internal quotation marks omitted)). The BIA has observed

that the underlying purpose of § 1182(a)(9)(C) “was to single

out recidivist immigration violators and make it more difficult

for them to be admitted to the United States after having

departed.” Briones, 24 I. & N. Dec. at 358. We have concurred with that view. Garfias-Rodriguez, 2011 WL 1346960,

at *5. The BIA has added that § 1182(a)(9) generally “seek[s]

to compound the adverse consequences of immigration violations.” In re Rodarte-Roman, 23 I. & N. Dec. 905, 909 (B.I.A.

2006). By requiring repeat immigration offenders to pay the

penalty of waiting ten years outside the United States before

receiving the privilege of lawful reentry, § 1182(a)(9)(C)(ii)

promotes Congress’s underlying policy goals of making

admission more difficult for immigration recidivists.

[11] In light of this legislative policy, we continue to defer

to the BIA’s reasonable decision in Torres-Garcia, upon

which the BIA expressly relied in rejecting Carrillo de Palacios’s arguments below. See Gonzales, 508 F.3d at 1241-42

(deferring to Torres-Garcia). In Torres-Garcia, the BIA

wrote:

[W]e could not . . . allow an alien to circumvent the

statutory 10-year limitation on [§ 1182](a)(9)(C)(ii)

waivers by simply reentering unlawfully before

requesting the waiver. After all, it is the alien’s

unlawful reentry without admission that makes

[§ 1182](a)(9)(C)(i) applicable in the first place. . . .

[A]n alien may not obtain a waiver of the

[§ 1182](a)(9)(C)(i) ground of inadmissibility, retroactively or prospectively, without regard to the 10-

year limitation set forth at [§ 1182](a)(9)(C)(ii).

CARRILLO DE PALACIOS v. HOLDER 8419
23 I. & N. Dec. at 876. This reasoning applies directly to Carrillo de Palacios’s circumstances. Although ten years elapsed

since she last departed the United States, she attempted to

“circumvent the statutory 10-year limitation . . . by simply

reentering unlawfully” after spending only five years abroad.

Id. She did not satisfy the statutory requirement that she spend

ten years abroad before returning.

[12] Our prior discussions of § 1182(a)(9)(C)(ii) are therefore correct: the alien must be “absent from the United States

more than ten years” before applying to the Secretary under

§ 1182(a)(9)(C)(ii). Gonzales, 508 F.3d at 1231. This, Carrillo

de Palacios did not do. She departed in 1992 and returned in

1997, long before the ten-year period had lapsed. Like the

BIA, we conclude that she was required to spend ten years

outside the United States before returning. Having failed to do

so, she does not satisfy the § 1182(a)(9)(C)(ii) exception to inadmissibility.6

CONCLUSION

Carrillo de Palacios is inadmissible under 8 U.S.C.

§ 1182(a)(9)(C)(i)(I), and does not qualify for the

§ 1182(a)(9)(C)(ii) exception to inadmissibility. The BIA correctly determined that Carrillo de Palacios is not eligible for

adjustment of status under § 1255(i).

PETITION DENIED.

6Because we conclude that Carrillo de Palacios failed to satisfy the statutory requirement that she wait outside the country for ten years, we

refrain from deciding whether an alien who has waited outside the country

for ten years may, under pre-existing agency practice, obtain nunc pro

tunc permission to reapply after having returned to the United States. 

8420 CARRILLO DE PALACIOS v. HOLDER