Francisca Lino v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1078
F RANCISCA L INO ,
Petitioner,
v.
A LBERTO R. G ONZALES , Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
Reinstating a Prior Removal Order.
____________
A RGUED S EPTEMBER 28, 2006—D ECIDED N OVEMBER 6, 2006
____________
Before F LAUM , Chief Judge, and R IPPLE and E VANS ,
Circuit Judges.
F LAUM , Chief Judge. In 1999, Immigrations and Customs
Enforcement (“ICE”) caught Francisca Lino attempting to
enter the United States with forged documents and issued
her a removal order. Shortly thereafter, Lino illegally
reentered the United States. She married an American
citizen and had three daughters, who are American citizens
as well.
In 2001, Lino applied to adjust her status under Immigra-
tion and Nationality Act (“INA”) § 245(i) to become a lawful
resident of the United States. At her interview with United
States Citizenship and Immigration Services (“CIS”)

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2 No. 05-1078
officials, Lino truthfully answered questions about her prior
removal in 1999. ICE officials took Lino into custody, and
CIS denied her application for adjustment of status because
she received a removal order and later entered the United
States illegally. ICE officials also reinstated Lino’s prior
removal order under INA § 241(a)(5). Lino appeals the
reinstatement of her removal order and the denial of her
adjustment of status application. For the following reasons,
we deny Lino’s petition.
I. B ACKGROUND
Francisca Lino is a native and citizen of Mexico. On
July 26, 1999, Lino attempted to enter the United States at
El Paso, Texas claiming to be Francisca Burciaga-Amaro.
The border patrol found her removable and issued an
expedited removal order. On September 1, 1999, Lino
illegally reentered the United States near El Paso, Texas.
She has been in the United States since that time. On
April 13, 2001, she married her husband, Diego Lino, a
naturalized United States citizen. Together, they have three
daughters who are all United States citizens. The younger
daughters are twins with severe developmental problems
due to their premature birth. Lino currently resides with
her husband and three children in Woodridge, Illinois.
On April 24, 2001, Lino’s husband filed an I-130 family-
based petition to have Lino classified as an alien relative of
a lawful permanent resident. CIS approved the I-130
petition on January 6, 2004. Thereafter, Lino filed an
adjustment of status application under INA § 245(i), which
allows certain classes of illegal aliens, including those
who are spouses of United States citizens, to petition to
change their status to lawful permanent resident. CIS
scheduled Lino’s interview for January 5, 2005.
At the interview, Lino answered questions about her 1999
removal order. She stated under oath that she reentered the

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No. 05-1078 3
country in September or October 1999. CIS ended the
interview after learning of Lino’s removal order. ICE
officials took Lino into custody and detained her at
the McHenry County Jail to await removal to Mexico.
On January 8, 2005, CIS denied Lino’s application to
adjust her status and reinstated her 1999 removal order
pursuant to INA § 241(a)(5), which provides:
If the Attorney General finds that an alien has reen-
tered 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 is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for
any relief under this Act, and the alien shall be re-
moved under the prior order at any time after the
reentry.
On January 13, 2005, Lino filed a petition for review
challenging the reinstated order of removal.
II. D ISCUSSION
Lino argues that the INA allows her to apply for adjust-
ment of status despite the reinstatement of her removal
order. Lino’s challenges involve pure questions of law and
are subject to a de novo standard of review. Marquez v. INS,
105 F.3d 374, 378 (7th Cir. 1997).
At issue in this case is the intersection of two provi-
sions of the INA, § 245(i) and § 241(a)(5). Section 245(i)
permits illegal entrants with close family ties to lawful
residents or United States citizens to adjust their status
to permanent resident without leaving the United States.
However, to be eligible for adjustment, the alien must
be admissible and eligible to receive an immigrant visa that
is immediately available. Congress initially passed § 245(i)
in October 1994 and twice extended it in 1997 and 2000.

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4 No. 05-1078
The final extension required applicants to file their peti-
tions by April 30, 2001.
In September 1996, Congress passed the Illegal Immigra-
tion Reform and Immigrant Responsibility Act (“IIRIRA”),
dramatically changing the stakes for immigration violators
seeking permanent residency. Congress first created a
summary removal procedure, by which aliens who seek
a d m i s s i o n to the Uni t ed States by fraud
or misrepresentation, or who lack the proper documents
to enter the United States, can be deported at the border by
an immigration officer, without the right to a hearing or
review. 8 U.S.C. § 1225(b)(1)(A)(I). Second, IIRIRA included
§ 241(a)(5), the reinstatement provision, which provides
that any alien who reenters the country illegally after being
removed can have his or her removal order reinstated,
without any review of the order itself or any other relief
under the INA. 8 U.S.C. § 1231(a)(5) (1997).
While the facts of this case are compelling, § 241(a)(5)
plainly precludes a previously removed alien who has
since illegally reentered the United States from adjusting
her status under § 245(i). Our decision in Labojewski v.
Gonzales, 407 F.3d 814 (7th Cir. 2005), is instructive. In
Labojewski, the petitioner, a citizen of Poland, entered
the United States on a visitor’s visa in 1987. He over-
stayed the visa and was deported in 1990. He illegally
reentered the United States in 1992 or 1993 using a false
passport and visa. In 1994, his mother, a lawful permanent
resident, filed an I-130 petition on his behalf, and in 2001,
the petitioner applied for adjustment of status under
§ 245(i). ICE discovered that the petitioner had reentered
the United States after being removed, and reinstated his
removal orders under § 241(a)(5). The petitioner argued
that because he had illegally reentered the United States
before Congress passed § 241(a)(5), it should not apply
retroactively to him. Id. at 816-18.

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No. 05-1078 5
We disagreed and held that § 241(a)(5) retroactively
applies to aliens who illegally reentered the United States
prior to IIRIRA’s effective date but applied for adjust-
ment of status after that date. Id. at 823. We upheld
ICE’s determination that the petitioner was statutorily
barred, under § 241(a)(5), from adjusting his immigrant
status under § 245(i). Id. The only difference between the
Labojewski petitioner’s argument and Lino’s argument
is that Lino does not make a retroactive application chal-
lenge. That difference has no bearing on § 241(a)(5)’s effect
on Lino’s adjustment of status application, and, thus, there
is no sound basis for departing from our decision in
Labojewski.
In further support of our conclusion, Lino does not fall
into any Congressionally recognized exemption from
§ 241(a)(5). In 2000, Congress specifically exempted certain
aliens applying for adjustment of status from § 241(a)(5).
See Pub. L. No. 106-554, App. D § 1505. The amendments
revised section 202 of the Nicaraguan Adjustment and
Central American Relief Act (“NACARA”) and section 902(a)
of the Haitian Refugee Immigration Fairness Act
(“HRIFA”). The House report accompanying those amend-
ments states that their intended effect was “to permit
Nicaraguans, Cubans, and Haitians eligible for adjustment
of status . . . to receive this relief despite having been
previously removed under an order of removal . . . .” H.R.
Rep. No.106-1048, at 231 (2001). These limited exemptions
for NACARA and HRIFA eligible aliens strongly undermine
Lino’s argument that Congress intended to exempt every
alien who seeks to adjust his or her status under § 245(i)
after illegally reentering the United States following
removal. Where Congress intended § 241(a)(5) not to pose
a barrier to adjustment of status for aliens who illegally
reentered the United States, it made a special exception to
the general rule. Because Lino does not fall within the
exception, she is bound by the general rule disqualifying

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6 No. 05-1078
aliens who illegally reentered the country from seeking
adjustment of status.
Finally, six circuits have held that § 241(a)(5) precludes
aliens subject to reinstatement orders from obtaining
adjustment of status pursuant to § 245(i). See De Sandoval
v. U.S. Attorney Gen., 440 F.3d 1276, 1284-85 (11th Cir.
2006); Berrum-Garcia v. Comfort, 390 F.3d 1158, 1163 (10th
Cir. 2004) (holding that once a petitioner’s prior removal
order has been reinstated, he no longer qualifies for any
relief under the INA, regardless of whether his application
was filed before or after the reinstatement decision was
made); Lattab v. Ashcroft, 384 F.3d 8, 21 (1st Cir. 2004)
(holding that “[s]ection 241(a)(5) . . . bars aliens who have
illegally reentered the United States after having previ-
ously been deported from applying for relief”); Warner v.
Ashcroft, 381 F.3d 534, 540 (6th Cir. 2004) (holding that
aliens whose prior orders of removal are reinstated under
§ 241(a)(5) should not be eligible for relief under § 245(i)
because § 241(a)(5) states that aliens who fall under this
provision “may not apply for any relief under this chapter”);
Flores v. Ashcroft, 354 F.3d 727, 731 (8th Cir. 2003); Padilla
v. Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003) (holding that
an alien who illegally reenters this country is not eligible
for adjustment of status because the reinstatement provi-
sion controls).
Lino acknowledges these cases but does not attempt to
distinguish them. Rather, she claims that these decisions
oversimplify the problem and that the two provisions should
be read to give each its due. However, both provisions are
given their due. Section 241(a)(5) merely precludes a subset
of aliens from taking advantage of § 245(i). “There are many
aliens illegally present in the United States who have never
been deported, and nothing in [§] 241(a)(5) prevents them
from seeking adjustments of status under [§] 245(i).”
Lattab, 384 F.3d at 21.

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No. 05-1078 7
Lino cites Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th
Cir. 2004), to support her argument; however, that case is
distinguishable. In Perez-Gonzalez, the court held that
an alien who has applied for an I-212 waiver before his
deportation order is reinstated is not barred from ap-
plying for relief under § 245(i). I-212 forms permit a
previously-removed alien to apply for permission to reapply
for admission to the United States. The court held that if an
alien’s I-212 application is granted, he is no longer subject
to the reinstatement provision, because he is no longer an
illegal entrant. Id. at 789. Here, Lino did not apply for a I-
212 application. Consequently, her reliance on Perez-
Gonzalez is misplaced. In any event, courts have questioned
the Perez-Gonzalez outcome. See, e.g., Lattab, 384 F.3d at 17
(“[W]e have grave doubts about the correctness of the Perez-
Gonzalez court’s conclusion.”).
Although we recognize the unfortunate circumstances
of this case, we have consistently held that “immigration
policy . . . is traditionally [within] the province of the
political branches.” Gomez-Chavez v. Perryman, 308 F.3d
796, 801 (7th Cir. 2002); see also Sivaainkaran v. INS, 972
F.2d 161, 165 (7th Cir. 1992) (recognizing that “immigration
policy is the clear purview of the legislative branch”);
Urukov v. INS, 55 F.3d 222, 228 (7th Cir. 1995) (same). For
this reason, § 241(a)(5) precludes Lino from seeking relief
by adjusting her status under § 245(i).
III. Conclusion
For the above stated reasons, we D ENY Lino’s petition
for review.

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8 No. 05-1078
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-6-06

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