Avendano-Ramirez v. Ashcroft

• Decision Date: 23 April 2004
• Docket Number: No. 02-73395.,02-73395.
• Citation: 365 F.3d 813
• Parties: Lucila AVENDANO-RAMIREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

365 F.3d 813

Lucila AVENDANO-RAMIREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 31, 2004.

Filed April 23, 2004.

Beth S. Persky, Los Angeles, CA, for the petitioner.

Timothy P. McIlmail, Office of Immigration Litigation Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before D.W. NELSON, FERNANDEZ, and KLEINFELD, Circuit Judges.

FERNANDEZ, Circuit Judge:

Lucila Avendano-Ramirez petitions for review of the Board of Immigration Appeals' denial of her application for cancellation of removal. The BIA did so because she had been removed pursuant to 8 U.S.C. § 1225(b),¹ within five years and could not, therefore, establish her good moral character. See §§ 1101(f)(3), 1182(a)(9)(A). We deny the petition.

BACKGROUND

Avendano entered the United States illegally on January 23, 1990. She left for a trip to Mexico for about a month between January and February of 2001 in order to visit her ailing father. When she attempted to return to the United States on February 19 and, again, on February 22, 2001, she was ordered removed without hearing pursuant to § 1225(b)(1)(A)(i) because she did not possess proper entry and travel documents. She tried again on February 25, 2001. This third time, she presented photo-altered travel documents. She was caught, taken into custody, and on March 2, 2001, she appeared before an IJ and admitted inadmissibility as charged.

Then, on March 28, 2001, she married the father of the youngest two of her three United States citizen children. He was a legal permanent resident, and he submitted an alien relative petition on her behalf. She, thereupon, requested cancellation of removal and adjustment of status, moved for a change of venue and for a continuance, requested permission to withdraw her application for admission, and requested voluntary departure. The IJ denied all of these forms of relief.

Most relevant here is the IJ's denial of Avendano's application for cancellation of removal. The IJ noted that § 1101(f)(3) barred a finding of good moral character because Avendano was seeking admission after having been removed within the previous five years pursuant to § 1225(b)(1). Avendano filed a brief arguing that her prior removal had been improper.

However, the IJ concluded that because Avendano had been removed within the past five years, she could not, as a matter of law, be regarded as a person of good moral character. See §§ 1101(f)(3), 1182(a)(9)(A). Thus, she was ineligible for cancellation of removal. See § 1229b(b)(1)(B).

Avendano appealed to the BIA and claimed error in the IJ's finding of her ineligibility for lack of good moral character and denial of her request to withdraw her application for admission. The BIA, however, affirmed the result of the IJ's decision under the streamlining regulations. See 8 C.F.R. § 1003.1(a)(7) (formerly 8 C.F.R. § 3.1(a)(7)). This petition for review followed.

STANDARD OF REVIEW

In considering petitions for review of immigration decisions, we review factual findings for substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Jahed v. INS, 356 F.3d 991, 996(9th Cir.2004); Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.2003). We review legal determinations de novo, but with considerable deference. See Kankamalage v. INS, 335 F.3d 858, 861-62 (9th Cir.2003); Zheng v. Ashcroft, 332 F.3d 1186, 1193-94 (9th Cir.2003); Chowdhury v. INS, 249 F.3d 970, 972 (9th Cir.2001); Shaar v. INS, 141 F.3d 953, 955-56 (9th Cir.1998).

In streamlined appeals, the BIA neither generates an independent decision nor adopts the reasoned opinion of the IJ. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849(9th Cir.2003). It adopts the result, and when it does, the IJ's opinion becomes the final agency determination, which we review directly. See 8 C.F.R. § 1003.1(a)(7)(iii)(formerly 8 C.F.R. § 3.1(a)(7)(iii)); Falcon Carriche, 350 F.3d at 849, 851.

DISCUSSION

Avendano claims that she is eligible for cancellation of removal and adjustment of her status to that of a lawful permanent resident. For that to be possible, she had to show that she had been present in the United States for a continuous period of 10 years, was of good moral character, had not been convicted of certain offenses, and that "exceptional and extremely unusual hardship" would be visited upon certain citizen relatives if she were removed. See § 1229b(b)(1). The IJ never reached the hardship issue² because he determined that she stumbled on the good moral character requirement.³ Therefore, it is that question which will absorb our attention. We will take it up in Part I, and will consider certain other issues in Part II.

I. Good Moral Character

The issue regarding Avendano's character is one which requires us to construe a number of statutory provisions. In that regard:

Canons of statutory construction dictate that if the language of a statute is clear, we look no further than that language in determining the statute's meaning. Therefore, we look[] to legislative history only if the statute is unclear. Of course, we do not limit ourselves to the apparent plain meaning of a statute, if doing so leads to absurd or impracticable consequences.

Ore. Natural Res. Council, Inc. v. Kantor, 99 F.3d 334, 339 (9th Cir.1996) (citations and internal quotation marks omitted). And, of course, the usual Chevron⁴ rules apply. That is to say:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 423-25, 119 S.Ct. 1439, 1445-46, 143 L.Ed.2d 590 (1999); Hawaii ex rel. Attorney Gen. v. FEMA, 294 F.3d 1152, 1159 (9th Cir.2002); Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir.2001) (en banc).

That said, we turn to the statutes. As we have already pointed out, § 1229b(b)(1)(B) requires that Avendano be of good moral character. But § 1101(f)(3) declares that no person can be of good moral character if she is "described in paragraphs (2)(D), (6)(E), and (9)(A) of section 1182(a) of this title; or subparagraphs (A) and (B) of section 1182(a)(2) of this title and subparagraph (C) thereof of such section." Avendano is described in § 1182(a)(9)(A) because she is an "alien who has been ordered removed under section 1225(b)(1) of this title ... and who again seeks admission within 5 years of the date of such removal."⁵ Thus, the statutes plainly provide that Avendano does not have good moral character, and that would seem to be "the end of the matter." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781, 104 S.Ct. 2778. But, says Avendano, that would be absurd; Congress must have made a mistake. Why?

Well, at one time § 1182(a)(9)(A) referred to aliens who were "coming to the United States to practice polygamy," but upon the enactment of IIRIRA,⁶ that became § 1182(a)(10)(A), and § 1182(a)(9)(A) was changed to read as it does now. Added to that, says Avendano, is the fact that the reference to § 1182(a)(9)(A) in § 1101(f)(3) is snuggled among provisions that apply to people who have engaged in criminal conduct,⁷ or plan to do so,⁸ and the people encompassed within § 1182(a)(9)(A) have not engaged in a species of criminal conduct⁹ that is as morally reprehensible as the conduct of those covered by the other provisions. That is far from clear. In fact, Avedano would have us undertake a task for which courts are ill suited.

She would have us debate whether a person who engaged in prostitution as long ago as ten years before entry¹⁰ is really always more of a criminal or more morally undesirable than one who repeatedly violates our immigration laws. Similarly, she would have us reflect upon whether someone who encourages another alien (perhaps a close friend or relative) to illegally enter the United States¹¹ is always a more reprehensible person than someone who attempts to slip over the border after having been removed one or more times. Somewhat more concretely, we would have to contemplate questions like: Would a woman who tried to smuggle her ailing grandmother have a worse moral character than Avendano, who was removed twice and then tried to enter with counterfeit papers? Would a man who smuggled his infant daughter while also smuggling his sister so that she could attend to the daughter during and after the trip have a worse moral character? But it is not for us to ponder those kinds of questions, make those fine moral distinctions, and then draw lines; it is for Congress.

Certainly, we recognize that legislative bodies do sometimes make mistakes when they amend statutes,¹² but we cannot assume that Congress actually made one in this instance. True it is that Congress removed polygamists from the list of people absolutely without good moral character when it moved them to § 1182(a)(10)(A). But it is conceivable that Congress considered that to be a matter of such low frequency and of so little moment that there was no reason to be terribly concerned; that limited group could be dealt with by application of the general good...