Petition for Review of an Order of the Board of Immigration Appeals.
The opinion of the court was delivered by: Colloton, Circuit Judge.
Submitted: December 17, 2009
Before BYE, BEAM, and COLLOTON, Circuit Judges.
Crispin Renteria-Ledesma and his wife Claudia Renteria, citizens of Mexico, petition for review of a decision by the Board of Immigration Appeals ("BIA") that upheld the denial of the petitioners' applications for adjustment of status, filed pursuant to 8 U.S.C. § 1255(i). The BIA acted based on the authority of In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which held that aliens inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) are not eligible for adjustment of status under § 1255(i). We conclude that the BIA's decision reflects a reasonable interpretation of an ambiguous statutory provision, and we therefore deny the petition for review.
On July 31, 1998, Crispin Renteria-Ledesma departed the United States under a grant of voluntary departure issued by an immigration judge ("IJ"). He illegally reentered the United States without inspection on January 1, 1999. His wife, Claudia Renteria, entered the United States without inspection on April 1, 1999. On April 8, 2004, Renteria-Ledesma filed for an adjustment of status under 8 U.S.C. § 1255(i), based on an approved Petition for Alien Relative filed by Renteria-Ledesma's father, who is a United States citizen. Claudia Renteria sought adjustment of status as a derivative applicant of her husband's application.
On March 29, 2005, the Department of Homeland Security ("DHS") denied Renteria-Ledesma's application for adjustment of status, and then initiated removal proceedings against him and his wife. Both conceded that they were removable, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United States without being admitted or paroled. Renteria-Ledesma also admitted that he was removable under 8 U.S.C. § 1182(a)(9)(C)(i)(I), as an alien who was "unlawfully present in the United States for an aggregate period of more than 1 year," and who reentered the United States without being admitted. Renteria-Ledesma stipulated that he was unlawfully present in the United States for more than one year prior to his re-entry into the United States on January 1, 1999.
At a hearing before an IJ, Renteria-Ledesma and his wife renewed their applications for adjustment of status under § 1255(i). The IJ, however, denied the applications on the ground that Renteria-Ledesma was inadmissible under § 1182(a)(9)(C)(i)(I). Relying on the BIA's decision in Briones, 24 I. & N. Dec. 355, the IJ determined that the relevant statutes made aliens removable under § 1182(a)(9)(C)(i)(I) ineligible for adjustment of status. The IJ then granted RenteriaLedesma and his wife the opportunity for voluntary departure.
On administrative appeal, the BIA relied on Briones and found no clear error in the IJ's decision to deny Renteria-Ledesma's application for adjustment of status. The BIA noted that the Ninth and Tenth Circuits had held that aliens removable under § 1182(a)(9)(C)(i)(I) are entitled to adjustment of status, but that there was no such authority from the Eighth Circuit. Accordingly, the BIA followed Briones and upheld the IJ's decision that Renteria-Ledesma was ineligible for adjustment of status under § 1255(i).
Renteria-Ledesma argues that the BIA's decision is contrary to the adjustment of status provision in § 1255(i). He also asserts that insofar as the statute is ambiguous, the BIA's interpretation of the statute in Briones is unreasonable.
We give "substantial deference to the BIA's interpretation of the statutes and regulations it administers." Cuadra v. Gonzales, 417 F.3d 947, 950 (8th Cir. 2005). If the statute is unambiguous, then the agency must apply it. But if the BIA is confronted with an ambiguous statute, then we will defer to a reasonable interpretation of the statute by the agency, in accord with the doctrine of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). See Ngengwe v. Mukasey, 543 F.3d 1029, 1033 (8th Cir. 2008).*fn1
Section 1255(i) provides that certain aliens who are "physically present in the United States," and who entered without inspection, may apply for adjustment of status to that of an alien lawfully admitted for permanent residence. The Attorney General may adjust the status of these aliens, if, among other conditions, "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." § 1255(i)(2)(A) (emphasis added).
Admissibility is determined according to 8 U.S.C. § 1182. This provision dictates that "[e]xcept as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States." 8 U.S.C. § 1182(a). The opening clause of the section is a "savings clause," which allows "admission of otherwise ...