Carrillo de Palacios v. Holder (PUB)
Unlawful presence, retroactivity; AOS/permission to reapply for admission/I-212
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). 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 IIRIRA because § 1182(a)(9)(C)(i)(I) is impermissibly retroactive fails. This section 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.” Because the relevant conduct was Carrillo de 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.
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. In order to be eligible under 8 U.S.C. § 1182(a)(9)(C)(ii), an individual must remain outside the United States for more than ten years before returning to the United States.
Susan P. Graber and Milan D. Smith, Jr., Circuit Judges, and Roger T. Benitez,* District Judge
http://www.ca9.uscourts.gov/datastore/opinions/2011/06/21/09-72059.pdf
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