Aragon-Salazar v. Holder
| Decision Date | 02 October 2014 |
| Docket Number | No. 10–71763.,10–71763. |
| Citation | 769 F.3d 699 |
| Parties | Jorge Dario ARAGON–SALAZAR, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Bobby Glenn Bell, Jr. (argued), Oakland, CA, for Petitioner.
David H. Wetmore (argued) and Matt A. Crapo, United States Department of Justice, Washington, D.C., for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072–400–647.
Before: CONSUELO M. CALLAHAN and MILAN D. SMITH, JR., Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.*
Opinion by Judge MILAN D. SMITH, Jr.; Dissent by Judge CALLAHAN.
Jorge Dario Aragon–Salazar (Aragon), a native and citizen of Guatemala, petitions for review of a decision by the Board of Immigration Appeals (BIA), affirming the Immigration Judge's (IJ) denial of his application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.L. No. 105–100, 111 Stat. 2160, 2193–2201 (1997). The IJ and BIA denied Aragon's application on the ground that his false testimony prevented him from establishing good moral character during the seven-year period required by NACARA in order to be eligible for special rule cancellation of removal. As a matter of first impression in our circuit, we hold that an application for special rule cancellation of removal under NACARA is not a continuing application, and that the seven-year period during which good moral character is required under NACARA ends on the date of the filing of the application. In this case, if Aragon gave false testimony, he did so after the requisite seven-year period. Accordingly, we grant the petition for review, and remand for further proceedings.
Section 203 of NACARA establishes rules to permit certain classes of aliens, including some from Guatemala, to apply for relief from removal under what is titled “Special Rule for Cancellation of Removal.” NACARA, Pub.L. No. 105–100, 111 Stat. 2160, 2193–2201 (NACARA § 203). In enacting NACARA, Congress relaxed the requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104–208, 110 Stat. 3009, for cancellation of removal for such aliens by applying the less stringent pre-IIRIRA requirements. See Barrios v. Holder, 581 F.3d 849, 857 (9th Cir.2009); Munoz v. Ashcroft, 339 F.3d 950, 955–56 (9th Cir.2003).
Under § 309(f) of IIRIRA, as amended by NACARA § 203, the Attorney General has discretion to “cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence” an alien who, inter alia:
(i) is not inadmissible or deportable under paragraph (2) or (3) of section 212(a) or paragraph (2), (3), or (4) of section 237(a) of the Immigration and Nationality Act and is not an alien described in section 241(b)(3)(B)(i) of such Act;
(ii) has been physically present in the United States for a continuous period of not less than 7 years immediately preceding the date of such application;
(iii) has been a person of good moral character during such period; and
(iv) establishes that removal would result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
IIRIRA § 309(f), NACARA § 203, amended byPub.L. No. 105–139, 111 Stat. 2644, 2644–45 (1997).1 No person “who has given false testimony for the purpose of obtaining any [immigration] benefits” during the relevant period for which good moral character is required shall be found to be a person of good moral character. 8 U.S.C. § 1101(f)(6).
If an application for NACARA special rule cancellation of removal was treated as a continuing application, an applicant would be required to show good moral character up to the point that a final administrative decision is issued in order to meet NACARA's requirement. See In re Garcia, 24 I. & N. Dec. 179, 183 (B.I.A.2007). If, however, an application for NACARA special rule cancellation of removal is not a continuing application, then the seven-year good moral character period requirement ends on the date the applicant files the application.
Aragon is a native and citizen of Guatemala, who entered the United States without inspection in 1988. On June 13, 2006, Aragon filed an application for special rule cancellation of removal under NACARA. On September 13, 2006, Helen Maudeen Wauku, an asylum officer, interviewed Aragon. After the interview, the Department of Homeland Security (DHS) declined to grant Aragon's application because it appeared from Aragon's testimony that he was barred from relief as a person who ordered, incited, assisted or otherwise participated in the persecution of others under INA § 240A(c)(5), 8 U.S.C. § 1229b(c)(5). DHS instead referred Aragon's application to an IJ. Aragon subsequently submitted an updated NACARA application at the request of the IJ.
On January 7, 2009, Aragon testified about his role in the Guatemalan army from 1983 to 1988 and stated on direct examination that his army unit had arrested one guerrilla. On cross-examination, Aragon testified that his unit had arrested guerrillas on approximately two other occasions, but that he was not present during those arrests. Aragon denied that he stated during his NACARA interview with Wauku that every time his unit engaged in combat, it captured three to six guerillas.
On March 3, 2009, Wauku testified before the IJ about Aragon's NACARA interview. Reviewing the notes she took during the interview, she testified that Aragon stated during the interview that his unit had captured between three to six guerrillas every six months. Wauku testified that she had concluded after the interview that Aragon had assisted a “persecutory army” because he drove troops to areas where “atrocious” conflicts had occurred, and was knowledgeable about catching guerrillas. She stated that she had therefore determined that he was ineligible for NACARA relief due to the persecutor bar, and had referred his application to an IJ.
On March 3, 2009, the IJ denied Aragon's application for NACARA special rule cancellation of removal. Although the IJ found that Aragon had established the extreme hardship and continuous physical presence requirements, she found that Aragon had given false testimony for the purpose of obtaining an immigration benefit, either by fabricating incidents during the NACARA interview to make himself seem more important or by minimizing incidents during the merits hearing to avoid the persecutor bar. Accordingly, the IJ found that Aragon was unable to establish good moral character under 8 U.S.C. § 1101(f)(6). The IJ concluded that Aragon was thus statutorily ineligible for special rule cancellation of removal, and denied his application.
Aragon appealed to the BIA, which held that an application for special rule cancellation of removal is a “continuing” application through removal proceedings. As such, the BIA explained that the seven-year period during which good moral character is required did not end on the date Aragon filed his application, but rather extended until a final administrative decision was issued. The BIA then affirmed the IJ's finding that Aragon made false statements for the purpose of obtaining special rule cancellation of removal, based on the inconsistencies between his testimony at the merits hearing and the NACARA interview. The BIA thus affirmed the IJ's conclusion that Aragon was statutorily ineligible for special rule cancellation of removal because he could not establish good moral character during the requisite seven-year period. Aragon timely filed this petition for review.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. We review questions of law de novo, except to the extent that deference is owed to the BIA's determination of the governing statutes and regulations. Barrios, 581 F.3d at 854.
The BIA and the IJ concluded that Aragon presented false testimony during either the NACARA interview or the merits hearing for the purpose of obtaining NACARA special rule cancellation of removal. Because the BIA concluded that an application for NACARA special rule cancellation of removal is a continuing application, it considered these statements, which were made after Aragon filed his application, when determining whether Aragon was a person of good moral character.
Aragon argues that a NACARA application is not continuing in nature. Thus, he contends that because his purportedly false statements were made after he filed his application, they should not be taken into account for purposes of making the required good moral character determination. The government counters that we must defer to the BIA's determination that an application for special rule cancellation of removal is continuing. See Garcia, 24 I. & N. Dec. at 183 (); cf. In re Ortega–Cabrera, 23 I. & N. Dec. 793 (B.I.A.2005) ().
We employ the Chevron two-step framework when reviewing the BIA's interpretation of its governing statutes. Marmolejo–Campos v. Holder, 558 F.3d 903, 908 (9th Cir.2009) (en banc) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Accordingly, we must first...
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