Vasquez-Lopez v. Ashcroft, 01-71827.

• Decision Date: 13 January 2003
• Docket Number: No. 01-71827.,01-71827.
• Citation: 343 F.3d 961
• Parties: Delfino VASQUEZ-LOPEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

343 F.3d 961 Delfino VASQUEZ-LOPEZ, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent. No. 01-71827. United States Court of Appeals, Ninth Circuit. Submitted November 7, 2002.^* — San Francisco, California. Filed January 13, 2003. Amended September 11, 2003.

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Michael Franquinha, Phoenix, Arizona, for the petitioner.

Robert D. McCallum, Jr., Alison R. Drucker, Donald E. Keener, Office of Immigration Litigation, Washington, D.C., for the respondent.

Petition to Review an Order of the Board of Immigration Appeals. INS No. A70-911-843.

Before: Walter K. STAPLETON,^** Diarmuid F. O'SCANNLAIN, and F. FERDINAND FERNANDEZ, Circuit Judges.

ORDER

The opinion filed on January 13, 2003, is ordered amended. The Clerk is instructed to file the amended opinion. Judge Berzon's dissent from the order denying rehearing en banc shall also be filed.

The panel has voted unanimously to deny the petition for rehearing. Judge O'Scannlain has voted to deny the petition

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for rehearing en banc, and Judge Stapleton and Judge Fernandez so recommended.

The full court was advised of the petition for rehearing en banc and an active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel or en banc rehearing will be entertained.

BERZON, Circuit Judge, with whom PREGERSON, THOMAS, GRABER, WARDLAW, FISHER, and PAEZ, Circuit Judges, join, dissenting from the denial of rehearing en banc:

Congress enacted a new definition of "continuous physical presence" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996): Although the pre-1996 Immigration and Nationality Act (INA) provided that "brief, casual, and innocent" departures were not breaks in continuous presence, see 8 U.S.C. § 1254(b)(2) (repealed 1996), IIRIRA excised that language and substituted the following:

Treatment of certain breaks in presence. An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.

8 U.S.C. § 1229b(d)(2).

Despite this evident change in the relevant statutory regime, the panel's opinion resurrects the pre-IIRIRA concept of "brief, casual, and innocent" departures. The opinion consequently denies Vasquez-Lopez eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(1) because his departure, although for fewer than 90 days, was under threat of deportation. We should have reheard this case en banc in order to give effect to the language Congress chose: "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Instead, the panel opinion consigns IIRIRA's significant change in the continuous physical presence section of the INA to the dead letter box.

I

In 1984, the Supreme Court in INS v. Phinpathya, 464 U.S. 183, 189-90, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984), reversed this court because, disregarding the plain words of the INA as it then read, we had created an exception to the continuous physical presence requirement for suspension of deportation in cases of non-"meaningfully interruptive" departures. Said the Court:

The ordinary meaning of these words does not readily admit any "exception[s] to the requirement of seven years of `continuous physical presence'" in the United States to be eligible for suspension of deportation.... [Without a moderating provision,] Congress meant this "continuous physical presence" requirement to be administered as written.

Id. (internal citation omitted); see also id. at 195, 104 S.Ct. 584 (construing the INA to broaden the Attorney General's discretion improperly shifts authority to define the "continuous physical presence" requirement "from Congress to INS and, eventually, as is evident from the experience in this case, to the courts").

Congress amended the statute after Phinpathya to provide an exception for absences that were "brief, casual, and innocent"

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and did not "meaningfully interrupt" an alien's continuous physical presence. See 8 U.S.C. § 1254(b)(2) (repealed 1996). Applying the amended statute, we concluded that a voluntary departure under threat of deportation is "not a brief, casual, and innocent absence from the United States" under former section 1254(b)(2). See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir.1989).

IIRIRA eliminated the "brief, casual, and innocent" exception, substituting a bright-line rule stating that the continuous physical presence requirement is not met if there is a single departure of more than 90 days or aggregate absences of more than 180 days. The former "brief, casual, and innocent" standard that 8 U.S.C. § 1229b(d)(2) replaced was preserved in two other parts of the statute in which it also existed before IIRIRA. See 8 U.S.C. §§ 1254a(c)(4) (temporary protected status), 1255a(a)(3)(B) (adjustment of status for pre-1982 entrants); accord 8 U.S.C. §§ 1254a(c)(4) (1995), 1255a(a)(3)(B) (1995).

Setting aside Congress's 1996 alterations and ignoring its deliberate inaction elsewhere in the INA,¹ the opinion in this case accomplishes once more precisely what Phinpathya told us we could not: amending the statute Congress wrote. This time, the panel reads the "brief, casual, and innocent" standard back into the continuous physical presence provision, retaining the regime affirmatively deleted by Congress and replaced by a single, objective, clear rule. In doing so, the panel produces a statutory interpretation that is at odds with the approach taken by the Tenth Circuit when it analyzed the new continuous physical presence requirement of 8 U.S.C. § 1229b(d)(2). See Rivera-Jimenez v. INS, 214 F.3d 1213, 1218 (10th Cir.2000) (remanding the question to the BIA after commenting: "We agree with the INS that petitioners' two-week return to Mexico in lieu of being placed in deportation proceedings was not brief, casual or innocent. See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir.1989) .... This is irrelevant, however, in light of the IIRIRA's special rules relating to continuous physical presence.").

Judicial amendment of the INA is no more proper when it limits aliens' rights than when it enhances them. Section 1229b(d)(2) should therefore be read as a "moderating provision," Phinpathya, 464 U.S. at 190, 104 S.Ct. 584, creating an exception to the continuous physical presence requirement for any departure of 90 days or fewer, as long as the alien's absences do not exceed 180 days in the aggregate.

II

In deciding otherwise, the opinion claims to defer to the Board of Immigration Appeals' (BIA's) interpretation of the post-IIRIRA INA to include the now-superseded standard, invoking Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The BIA's decision addressing the meaning of 8 U.S.C. § 1229b(d)(2), In re Romalez-Alcaide, 23 I. & N. Dec. 423, 2002 WL 1189034 (BIA 2002) (en banc), is not, however, entitled to Chevron deference.

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I am unconvinced that section 1229b(d)(2) is sufficiently ambiguous on its face to survive the first prong of Chevron.² But even if I am wrong in that regard, an agency interpretation that adds to the statute "something which is not there" cannot stand. United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957). As this court has had occasion to note:

The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law, for no such power can be delegated by Congress, but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.

Cal. Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460-61 (9th Cir.1997) (quoting Manhattan Gen. Equip. Co. v. Comm'r, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936)). Because its inventive statutory interpretation cannot for a number of reasons be reconciled with Congress's 1996 amendments regarding breaks in continuous physical presence, Romalez-Alcaide is not worthy of deference. See Chevron, 467 U.S. at 844, 104 S.Ct. 2778 ("a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency") (emphasis added).

First, the BIA's interpretation condemns section 1229b (d)(2) to mere surplusage: If the provision is not viewed as a limitation on the continuous physical presence requirement, then there is no explicit limitation based on brevity of absence. Phinpathya precludes recognition of any implicit limitation. Section 1229b(d)(2) then loses all purpose: Without any explicit or implicit exception for shorter departures, there is no reason to provide that absences of more than a specified number of days are breaks in continuous physical presence. So the BIA's conclusion that "the statute does not specifically exempt all such shorter departures" and that "the statutory language ... does not literally forgive any single departure of 90 days or less or aggregate departures of 180 days or less," Romalez-Alcaide, 23 I. & N. Dec. at 425-26, cannot be squared with Phinpathya.

Second, one of the BIA's rationales — referred to by the panel opinion — is that section 1229b(d)(2)'s title ("Treatment of certain breaks in presence") clarifies Congress's intent not to define all breaks in physical...