Olga Figueredo Cardenas v. ERIC H. HOLDER, JR., Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0511n.06
No. 08-4388
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
OLGA FIGUEREDO CARDENAS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
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ON PETITION FOR REVIEW FROM A
DECISION OF THE BOARD OF
IMMIGRATION APPEALS
Before: BOGGS, Chief Judge; BATCHELDER and COOK, Circuit Judges.
COOK, Circuit Judge. Petitioner Olga Figueredo Cardenas, a native and citizen of Paraguay,
appeals the decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge,
who found Figueredo Cardenas inadmissible and denied her application for adjustment of status to
lawful permanent resident. We affirm.
I.
Figueredo Cardenas first entered the United States in 1990, but remained beyond the
expiration of her visa. Once apprehended, the Immigration and Naturalization Service (“INS”)
placed her into deportation proceedings and she departed in 1991 under a grant of voluntary
departure. But Figueredo Cardenas returned in 1994, entering the country without an inspection.

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Again the INS commenced removal proceedings, and again Figueredo Cardenas accepted the
privilege of voluntary departure. She returned to Paraguay in April 2001, but re-entered the United
States—again without inspection—some four months later. Immigration authorities commenced the
current removal proceedings in June 2005, charging Figueredo Cardenas with violating 8 U.S.C. §
1182(a)(6)(A)(i) (providing that any alien present in the United States without being admitted or
paroled is removable) and 8 U.S.C. § 1182(a)(9)(C)(i)(I) (providing that any alien unlawfully present
in the United States for longer than one year, and who entered without being admitted, is removable).
Figueredo Cardenas conceded removability under both charges.
Figueredo Cardenas sought to avoid removal by adjusting her status to that of a lawful
permanent resident, pursuant to 8 U.S.C. § 1255(i), and by seeking a waiver of inadmissibility and
permission to reapply for admission after removal. The Immigration Judge, however, noted that a
petitioner who is removable under § 1182(a)(9)(C)(i) remains inadmissible and ineligible for a
waiver unless she remains outside the United States for more than 10 years from the date of her last
departure. 8 U.S.C. § 1182(a)(9)(C)(ii); Matter of Torres-Garcia, 23 I. & N. Dec. 866, 873 (BIA
2006). The Immigration Judge concluded that Figueredo Cardenas could not adjust her status and
declined her other applications. The BIA affirmed.
II.
We review questions of law concerning immigration proceedings de novo. Ramirez-Canales
v. Mukasey, 517 F.3d 904, 907 (6th Cir. 2008). Where, as here, the BIA affirms the Immigration

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Judge’s decision while adding its own comments, we review both decisions. See Elias v. Gonzales,
490 F.3d 444, 449 (6th Cir. 2007).
An alien cannot qualify for an adjustment of status under § 1255(i) if that alien is
inadmissible. 8 U.S.C. § 1255(i)(2)(A); see also Matter of Briones, 24 I. & N. Dec. 355, 362 (BIA
2007). Figueredo Cardenas conceded inadmissibility under § 1182(a)(9)(C)(i). She can only cure
that inadmissibility—and thus become eligible for a status adjustment—by seeking admission at least
10 years after the date of her last departure from the United States. 8 U.S.C. § 1182(a)(9)(C)(ii).
Inadmissibility does not always bar an alien from applying for an adjustment of status. The
BIA interprets the interplay between § 1255(i) and § 1182(a)(6) to create a narrow exception to
certain inadmissibility provisions. For example, an alien who entered the United States without an
inspection, and is thus inadmissible under § 1182(a)(6)(A)(i), may seek a status adjustment. Matter
of Briones, 24 I. & N. Dec. at 365. But this exception does not extend to recidivist immigration
violators—like Figueredo Cardenas—who are inadmissible under § 1182(a)(9)(C)(i). Id. at 370–71;
Matter of Torres-Garcia, 23 I. & N. Dec. at 873.
Figueredo Cardenas urges us to reject the BIA’s interpretation of § 1182(a)(9)(C)(i)(I) and
instead follow a Ninth Circuit decision, Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004),
which would permit her to seek a nunc pro tunc waiver of her illegal entry and thereby permit her
to apply for an adjustment of status. But after the BIA decision in Matter of Torres-Garcia, the
Ninth Circuit reversed course, holding in Gonzales v. Dep’t. of Homeland Sec., 508 F.3d 1227, 1242

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(9th Cir. 2007), that “we are bound by the BIA’s interpretation of the applicable statutes in In re
Torres-Garcia, even though that interpretation differs from our prior interpretation in Perez-
Gonzalez.” And moreover, the BIA’s interpretation of § 1182(a)(9)(C)(i)(I) is the law of this circuit.
Ramirez-Canales, 517 F.3d at 910 (according Chevron deference to Matter of Briones’s holding that
alients who are inadmissible under 8 U.S.C. § 1882(a)(9)(C)(i)(I) are ineligible for an adjustment
of status pursuant to 8 U.S.C. § 1225(i), and applying Matter of Torres-Garcia’s holding that
inadmissibility under § 1182(a)(9)(C) may not be waived nunc pro tunc). Ramirez-Canales disposes
of Figueredo Cardenas’s claim, and she makes no effort to avoid its application beyond asking that
we reconsider its outcome. Consequently, Figueredo Cardenas cannot adjust her status.
III.
We affirm the BIA’s decision.

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