In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2183

MARGARITA DEL ROCIO BORREGO,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition for Review of the Decision

of the Board of Immigration Appeals.

No. A76-285-589 

____________

ARGUED JUNE 6, 2008—DECIDED AUGUST 25, 2008

____________

Before MANION, BAUER, and RIPPLE, Circuit Judges.

MANION, Circuit Judge. Margarita del Rocio Borrego,

using the alias Rosa Maciel-Curiel, falsely claimed to be

a United States citizen in an attempt to gain entry into

the United States in 1997. Borrego’s attempt was foiled,

and she was barred from entering the United States for a

period of five years. Nevertheless, less than four years

later Borrego obtained a B-2 visa under her real name and
2 No. 07-2183

On March 1, 2003, the INS ceased to exist as an independent

1

agency and the Department of Homeland Security assumed its

functions. For the sake of clarity, though, we will refer only to

the INS in this opinion.

returned to the United States. Borrego was later discovered

and ordered removed again. Borrego petitions this court

for review of the Board of Immigration Appeals decision

affirming the latter order of removal. We deny her petition for review.

I.

 Borrego is a citizen of Mexico. On July 25, 1997, at the

Paso del Norte Port of Entry in El Paso, Texas, Borrego

attempted to enter the United States by using the alias

Rosa Maciel-Curiel and claiming to be a United States

citizen. During an interview with an agent of the Immigration and Naturalization Service (“INS”), which was 1

conducted in Spanish, Borrego admitted that she was not

a United States citizen and that she knew it was illegal to

falsely claim United States citizenship. But Borrego continued to maintain that she was Rosa Maciel-Curiel; she

swore under oath that her “true and correct name” was

Rosa Maciel-Curiel.

Borrego’s fingerprints were taken, and she was then

ordered removed. In a document bearing her signature

(albeit under the alias Rosa Maciel-Curiel), Borrego

was informed that she had been found inadmissible

pursuant to § 212(a) of the Immigration and Nationality
No. 07-2183 3

Act (“INA”), 8 U.S.C. § 1182(a); that she was “prohibited

from entering, attempting to enter, or being in the United

States for a period of 5 years from the date of [her] departure from the United States”; and that if she wanted to

return to the United States before the five-year ban was up,

she had to “request and obtain permission from the

Attorney General to reapply for admission into the United

States . . . prior to commencing [her] travel.” In addition,

Borrego was personally served with a notice and order

of expedited removal, which stated that she was inadmissible under § 212(a)(6)(C)(ii) of the INA, 8 U.S.C.

§ 1182(a)(6)(C)(ii), because she “falsely represented [herself] to be a citizen of the United States . . . for the purpose

of gaining entry into the United States.” After receiving

that notice, she was removed from the country.

Despite the five-year ban, in January 2001 Borrego

applied for a B-2 visa to enter the United States under her

own name, Margarita del Rocio Rodelo Reynoso. During

the application process, Borrego never informed the

United States Consulate in Mexico of the five-year ban

on admission. Nor did she seek permission from the

Attorney General to reapply for admission. On her visa

application (which was in Spanish), Borrego responded

“no” to the question asking whether she had ever attempted to enter the United States by means of fraud or

false statements. She also answered “no” to another

question asking if she had been deported from the

United States within the last five years. Thus unaware

of her prior history, the consulate issued Borrego a visa

on January 2, 2001, and, shortly thereafter, Borrego used

the visa for admission into the country.
4 No. 07-2183

While in the United States, Borrego married Fernando

Borrego, an American citizen. Her husband proceeded to

file an application for an adjustment of status on her

behalf in May 2003. That application was denied

when the INS found out from an FBI fingerprint comparison that Borrego’s fingerprints matched those of

Maciel-Curiel. Borrego was then placed in removal proceedings. The INS alleged that Borrego was subject to

removal pursuant to § 237(a)(1)(A) of the INA, 8 U.S.C.

§ 1227(a)(1)(A), as an alien who (1) sought to procure

admission into the United States by false and fraudulent

pretenses; (2) sought admission within five years of the

date of a previous removal without obtaining prior

consent to reapply for admission from the Attorney

General; and (3) falsely represented herself as a United

States citizen. The INS also alleged that Borrego was

removable under § 237(a)(1)(A) because she had overstayed her visa.

In proceedings before an immigration judge (“IJ”),

Borrego challenged the 1997 order of removal. She

also sought permission to reapply for admission retroactively under § 212(a)(9)(A)(iii) of the INA, 8 U.S.C.

§ 1182(a)(9)(A)(iii). In a June 2005 ruling, the IJ first concluded that she lacked jurisdiction to consider Borrego’s

challenges to the 1997 order of removal because, among

other reasons, § 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5),

states that a “prior order of removal . . . is not subject to

being reopened or reviewed.” Next, the IJ determined

that Borrego was removable as charged, finding neither

credible nor plausible her assertions that she never

falsely claimed United States citizenship and that she
No. 07-2183 5

procured her B-2 visa innocently without intending to

conceal her prior encounter with the INS. Finally, the IJ

held that Borrego was not eligible for either a waiver of

inadmissibility or an adjustment of status, and ordered

her removed to Mexico. 

Borrego appealed the decision of the IJ to the Board of

Immigration Appeals. The Board found that the IJ

correctly determined that Borrego was inadmissible

because she had falsely claimed United States citizenship

during her attempted entry in 1997. The Board then held

that the IJ properly found that Borrego had failed to

establish eligibility for an adjustment of status, since to

obtain that relief an alien must be admissible. See 8 U.S.C.

§ 1255(a). The Board also disposed of Borrego’s claim that

she was eligible for a waiver of inadmissibility under

§ 212(d)(3) of the INA, 8 U.S.C. § 1182(d)(3), stating that

such a waiver cannot be granted retroactively in removal

proceedings pursuant to Matter of Fueyo, 20 I&N Dec. 84

(BIA 1989). The BIA dismissed Borrego’s appeal, and

she has filed a petition for review in this court.

II.

The sole issue Borrego presents in her petition for

review is whether a waiver pursuant to § 212(d)(3)(A)(ii) of

the INA may be granted retroactively. She argues that it

can, and that the Board erred in concluding otherwise. If

such a waiver can be granted retroactively, then Borrego

would be able to seek an adjustment of status.

Borrego’s argument that she is eligible for a retroactive

waiver turns on an interpretation of § 212(d)(3)(A)(ii) of
6 No. 07-2183

the INA. We review de novo questions of law regarding

the interpretation of the INA, giving deference to the

Board’s reasonable interpretation of that Act. NegreteRodriguez v. Mukasey, 518 F.3d 497, 501 (7th Cir. 2008). In

addition, where the Board “affirms, adopts, and supplements” the IJ’s decision, we review both the IJ’s decision

and any additional reasoning of the Board. Mema v.

Gonzales, 474 F.3d 412, 416 (7th Cir. 2007).

Section 212(d)(3)(A)(ii) states:

Except as provided in this subsection, an alien . . . who

is inadmissible under subsection (a) of this section

(other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),

(3)(C), and clauses (i) and (ii) of paragraph (3)(E) of

such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is

seeking admission, may be admitted into the United

States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General

shall prescribe conditions, including exaction of such

bonds as may be necessary, to control and regulate

the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

8 U.S.C. § 1182(d)(3)(A)(ii). In this case, the Board relied on

its previous interpretation in Fueyo, wherein the Board

determined that the above-quoted language foreclosed the

granting of retroactive relief. 20 I&N Dec. at 86-87. According to the Board in Fueyo, the text of § 212(d)(3)(A)(ii)

of the INA does not contemplate a waiver application by

someone who has already gained admission to the

United States. See id. at 87 (“By its very nature, the relief
No. 07-2183 7

Atunnise applied for a K-3 visa. The application form for that 2

visa asked the following question:

Have you ever been refused admission to the U.S., or been

the subject of a deportation hearing, or sought to obtain or

assist others to obtain a visa, entry into the U.S., or any

(continued...)

sought can only confer advance permission for a future

entry, and the statute and regulations make no provision

for this waiver to be granted retroactively.”).

That is an entirely sensible interpretation of

§ 212(d)(3)(A)(ii). The statute speaks in terms of a waiver

applicant who is “seeking admission,” not one who is

already admitted. Furthermore, the statute’s last sentence giving the Attorney General the power to set conditions on admission for those applying for entry demonstrates that the statute’s drafters had in mind a waiver

applicant who is not yet admitted. Under the clear language of § 212(d)(3)(A)(ii), then, Borrego was not eligible

for a waiver because she had already obtained admission.

Our recent holding in Atunnise v. Mukasey, 523 F.3d 830

(7th Cir. 2008), which Borrego has called to our attention

as supplemental authority, does not suggest a different

result. Rather, that decision underscores the distinction

between a waiver applicant who is already admitted, and

one who is “seeking admission” but has not yet gained

entry to the country. Atunnise, the petitioner in that case,

was detained upon arriving at O’Hare airport. She had

failed to alert the United States Consulate in Nigeria to

her inadmissible status due to an ambiguity in the visa

application form. The government cited Fueyo and argued 2
8 No. 07-2183

(...continued) 2

other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a

U.S. public elementary school on student (F) status or a

public secondary school after November 30, 1996 without

reimbursing the school?

Only a “yes” or “no” answer to that question was allowed, and

no space was given for an applicant to explain her answer.

Although Atunnise had been subjected to expedited removal

after attempting to enter the United States with a fraudulent

passport, she had never attended a public school in the United

States. Atunnise answered “no.” Atunnise, 523 F.3d at 832-33.

that Atunnise was not eligible for a waiver because she did

not apply at the consulate in Nigeria. We rejected that

argument and distinguished Fueyo on the grounds

that the petitioner had not yet been admitted into the

country—the same distinction that is dispositive in this

case. Indeed, we specifically stated that Atunnise was “not

proposing a retroactive grant because by virtue of her

detention she has not yet entered the United States. She

has been held in limbo at the border for almost two

years and is still seeking entry.” Id. at 838.

In contrast to Atunnise, Borrego is in the country. See

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“The distinction

between an alien who has effected an entry into the

United States and one who has never entered runs

throughout immigration law.”). She was admitted pursuant to a B-2 visa. As the IJ noted, the visa was issued only

because the consulate did not know about Borrego’s

inadmissible status. And the reason the consulate did
No. 07-2183 9

not know was because Borrego had used a false name

during her attempted entry in 1997.

That the consulate in Mexico did not know about

Borrego’s previous attempted entry under a false name

highlights another important distinction between this

case and Atunnise. In Atunnise, the onus was on the INS

because of the ambiguity in its form. See 523 F.3d at 838

(“[T]he government prevented the consular officer in

Lagos from discovering that Atunnise needed a waiver

because it used an incoherent form to determine her

admissibility and then apparently took no steps to crosscheck her information through any database.”). Here, the

burden was reversed: only Borrego knew that she was

both Margarita del Rocio Rodelo Reynoso and Rosa

Maciel-Curiel. At two different points Borrego had an

opportunity to reveal that information and put the ball

in the government’s court: first during her 1997 interview

with the INS, and later when filling out her visa application.

But Borrego let those opportunities go. She chose to

falsely maintain under oath during her 1997 interview that

her “true and correct name” was Rosa Maciel-Curiel.

She also chose to continue her deception on her visa

application, responding “no” to the question asking

whether she had ever attempted to enter the United States

by means of fraud or false statements and to another

question asking if she had been deported from the

United States within the last five years. Those choices were

hers to make. However, we do not possess such liberty of

choice. Rather, we are bound by the Board’s reasonable
10 No. 07-2183

interpretation of § 212(d)(3)(A)(ii) of the INA and must

enforce the consequences of Borrego’s failure to disclose

her inadmissibility and seek a waiver at the proper time.

III.

Because the plain text of § 212(d)(3)(A)(ii) of the INA

speaks only in terms of those seeking admission, the

Board did not err in concluding that it cannot operate to

waive inadmissibility once an alien is already admitted.

We DENY Borrego’s petition for review.

8-25-08