Gregorio Perez-Gonzalez v. Alberto Gonzales, Attorney General

403 F.3d 1116 Gregorio PEREZ-GONZALEZ, Petitioner v. Alberto GONZALES, * Attorney General, Respondent. No. 02-73294. United States Court of Appeals, Ninth Circuit. Filed April 18, 2005. Soren M. Rottman, Granger, WA, for Petitioner. Regional Counsel, Laguna Niguel, CA, WWS-District Counsel, Seattle, WA, James A. Hunolt, Esq., Papu Sandhu, Washington, DC, for Respondent. Agency No. Awd-pnr-qqo. Before D.W. NELSON, FISHER, and GOULD, Circuit Judges. 1 ORDER; Dissent by Judge GOULD. ORDER 2 The government's Motion to Reconsider filed on February 7, 2005, is hereby DENIED. Judge Gould's Dissent from Denial of Motion to Reconsider is attached hereto. 3 SO ORDERED. 4 GOULD, Circuit Judge, dissenting from the order denying motion to reconsider: 5 I would follow the holding of the Tenth Circuit in Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir.2004), and deny the petition. Berrum-Garcia criticizes the majority's holding that 8 C.F.R. § 212.2 permits persons previously removed or deported, who illegally reenter the United States, to seek permission to reapply for admission from within the United States. Berrum-Garcia points out, and I agree, that the majority decision is…

ORDER; Dissent by Judge GOULD.

ORDER

The government’s Motion to Reconsider filed on February 7, 2005, is hereby DE *1117 NIED. Judge Gould’s Dissent from Denial of Motion to Reconsider is attached hereto.

SO ORDERED.

dissenting from the order denying motion to reconsider:

I would follow the holding of the Tenth Circuit in Berrum-Garcia v. Comfort, 390 F.3d 1158 (10th Cir.2004), and deny the petition. Berrunu-Garcia criticizes the majority’s holding that 8 C.F.R. § 212.2 permits persons previously removed or deported, who illegally reenter the United States, to seek permission to reapply for admission from within the United States. Betrurtu-Garcia points out, and I agree, that the majority decision is inconsistent with the plain language of INA § 212(a)(9)(C)(ii), which requires “aliens who illegally reenter the country after having been removed or deported” to “first exit the United States and wait ten years before applying for an 1-212 waiver” while still outside the country. 1 Berrum-Garcia, 390 F.3d at 1166 .

The majority offers two reasons for looking to 8 C.F.R. § 212.2 instead of INA § 212(a)(9)(C)(ii) in assessing whether Perez-Gonzalez’s application for an 1-212 waiver was valid. The majority first asserts that it is necessary for us to regard 8 C.F.R. § 212.2 as controlling because this is the only way we can reconcile alleged conflicts between INA § 245(i) and INA § 212. See 379…