Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. Apr. 30, 2008) (nonimmigrant paroled into the United States for purposes of inadmissibility proceedings is not barred from making an application for a waiver under INA 212(d)(3); "At oral argument the government relied heavily on the BIA's decision in Matter of Fueyo, 20 I. & N. Dec. 84 (BIA 1989), to support its argument that it is too late now that removal proceedings are underway for Atunnise to apply for a 212(d)(3) waiver. In Fueyo, the BIA held that an alien who entered the United States illegally and was in deportation proceedings could not apply for a waiver under 212(d)(3)(B) because, "[b]y its very nature, the relief sought can only confer advance permission for a future entry, and the statute and regulations make no provision for this waiver to be granted retroactively." Id. at 87. But Atunnise is not proposing a retroactive grant because by virtue of her detention she has not yet entered the United States. She has been held in limbo at the border for almost two years and is still seeking entry. See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (noting that the "distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law"); Leng May Ma v. Barber, 357 U.S. 185, 188, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (noting that "the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States"); Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir.2007) (noting that even though paroled aliens are physically present in the United States "they nevertheless remain constructively detained at the border"); Sidhu v. Ashcroft, 368 F.3d 1160 (9th Cir.2004) (holding that alien taken into custody following detention at airport did not enter the United States). . . . As a practical matter, we see no reason why Atunnise would not still be eligible for a 212(d)(3) waiver. Even if she is required to file her I-601 with the consular office, nothing in the regulation states that she has to be physically present in Lagos to do so.").