Campos-Hernandez v. Sessions

• Decision Date: 02 May 2018
• Docket Number: No. 14-70034,14-70034
• Citation: 889 F.3d 564
• Parties: Manuel CAMPOS-HERNANDEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

889 F.3d 564

Manuel CAMPOS-HERNANDEZ, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-70034

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2018 Pasadena, California
Filed May 2, 2018

Louis A. Gordon (argued), Law Offices of Louis A. Gordon, Los Angeles, California; Edgardo Quintanilla, Quintanilla Law Firm ALC, Sherman Oaks, California; for Petitioner.

Kohsei Ugumori (argued), Senior Litigation Counsel; Emily Anne Radford, Assistant Director; Joyce R. Branda, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Sharon L. Gleason,^* District Judge.

OPINION

BERZON, Circuit Judge:

889 F.3d 566

To qualify for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA),¹ an undocumented immigrant must show he has been "physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal." NACARA § 203(b); see 8 C.F.R. § 1240.66(c)(2). When Manuel Campos-Hernandez applied for NACARA special rule cancellation, the BIA interpreted the physical presence requirement as running from Campos-Hernandez’s most recent disqualifying conviction, rather than his earliest, and so held him ineligible for NACARA cancellation of removal. We conclude that the BIA’s interpretation of NACARA is reasonable and is therefore entitled to deference. Accordingly, we deny the petition.

I

Campos-Hernandez, a citizen and native of El Salvador, entered the United States in 1990 or 1991 without being admitted or paroled after inspection by an immigration officer. He is 41 years old and married to a U.S. citizen. Since 2009, he has worked as a mechanic. Campos-Hernandez was convicted of drug-related offenses in California in 2003, 2005, and 2008.

In 2008, the Department of Homeland Security (DHS) served Campos-Hernandez with a Notice to Appear (NTA) at a removal hearing. The NTA alleged that Campos-Hernandez arrived in the United States without being admitted or paroled after inspection, and charged him with removability both on that basis and on the basis of his drug convictions.² Campos-Hernandez admitted the allegations against him and conceded his removability.

On February 10, 2012, Campos-Hernandez filed a NACARA application. That same day, an immigration judge (IJ) found that Campos-Hernandez was ineligible for NACARA special rule cancellation of removal and denied his application for relief. Specifically, the IJ determined that, because the drug convictions rendering him inadmissible occurred within the previous ten years, Campos-Hernandez could not satisfy NACARA’s requirement of "10 years [of continuous physical presence] immediately following the commission of an act, or the assumption of a status constituting

889 F.3d 567

a ground for removal." 8 C.F.R. § 1240.66(c)(2).

The BIA dismissed Campos-Hernandez’s appeal in a non-precedential, single-member opinion. The opinion held that Campos-Hernandez’s 2008 conviction was "a ground for removal" under 8 C.F.R. § 1240.66(c)(2), and because ten years had not elapsed between 2008 and the decision of the BIA, he was not eligible for cancellation of removal under NACARA. Campos-Hernandez timely filed a petition for review.

After the briefing of this appeal, a three-member panel of the BIA held, in a precedential opinion in a different immigration appeal, that "for purposes of special rule cancellation of removal under the NACARA, ... continuous physical presence should be measured from the alien’s most recently incurred ground of removal." Matter of Castro-Lopez , 26 I. & N. Dec. 693, 696 (BIA 2015) (emphasis added). We ordered the parties to submit supplement briefing addressing Matter of Castro-Lopez , and they did so.

II

A. Applicable law

NACARA was enacted in 1997 to provide immigration benefits to nationals from certain Central American and Eastern European countries, including El Salvador. See NACARA § 203(b);³ 8 C.F.R. § 1240.61(a) ; Barrios v. Holder , 581 F.3d 849, 857 (9th Cir. 2009). In particular, "[s]ection 203 of NACARA allows qualified individuals to apply for special rule cancellation under the more lenient standards that existed before the passage of [IIRIRA]." Barrios , 581 F.3d at 857.

Most applicants for cancellation of removal under NACARA must establish physical presence in the United States for "a continuous period of 7 years immediately preceding" the filing of an application for cancellation of removal. NACARA § 203(b); 8 C.F.R. § 1240.66(b)(2). An applicant for cancellation of removal under NACARA who is inadmissible under 8 U.S.C. § 1182(a)(2),⁴ however, is subject to a heightened physical presence requirement. Such an applicant, like Campos-Hernandez, must establish that he "has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal." NACARA § 203(b); 8 C.F.R. § 1240.66(c)(2).

"Agency regulations interpreting special rule cancellation"—particularly the continuous physical presence requirements—"closely track the text of ... NACARA." Barrios , 581 F.3d at 857 ; see 8 C.F.R. § 1240.66(b)(2), (c)(2). In turn, the language of NACARA’s continuous physical presence requirements—both the "heightened" ten-year requirement and the regular seven-year one—is copied from an older statute governing suspension of deportation, a now-superseded form of immigration

889 F.3d 568

relief.⁵ See 8 U.S.C. § 1254 (1996) (repealed); Fong v. INS , 308 F.2d 191 (9th Cir. 1962) (construing identical language from the now-superseded suspension of deportation statute).

An agency’s formal interpretation of its governing statutes may be entitled, when appropriate, to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron deference is appropriate when "it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and ... the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp. , 533 U.S. 218, 226–27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) ; see Marmolejo-Campos v. Holder , 558 F.3d 903, 908 (9th Cir. 2009) (en banc). When applying Chevron , a court "is confronted with two questions. First ... 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." Chevron , 467 U.S. at 842, 104 S.Ct. 2778. However, "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." Id. at 843, 104 S.Ct. 2778. An agency’s interpretation that conflicts with earlier binding authority of this court is entitled to deference unless the court’s earlier interpretation "follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Nat’l Cable & Telecommc’ns Ass’n v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ; see also Garfias-Rodriguez v. Holder , 702 F.3d 504, 512–13 (9th Cir. 2012) (en banc).

B. Discussion

1. Conflicting authority and Brand X

Before determining whether the BIA’s interpretation in Matter of Castro-Lopez merits deference, we confront a threshold issue: whether we are bound by our contrary interpretation of the now-superseded suspension of deportation statute. See Fong , 308 F.2d 191. Fong addressed a continuous physical presence provision identical to the one we here examine.

In Fong , Louie King Fong’s eligibility for suspension of deportation hinged, as does Campos-Hernandez’s, on whether the ten-year physical presence requirement ran from when he first became deportable in 1944, or from the last act or status making him deportable, which occurred in 1953. Id. at 193. If the former, Fong "ha[d] been physically present in the United States for a continuous period of not less than ten years immediately following ... the assumption of a status ... constituting a ground for deportation." Id. at 194 (quoting 8 U.S.C. § 1254(a) (1952) ). If the latter, he had not. Finding the provision "open to two possible constructions," id. , the court likened the provision to a penal statute, and resolved the ambiguity by strictly construing the statute in favor of Fong. Id. at 194–95 (citing Barber v. Gonzales , 347 U.S. 637, 642–43, 74 S.Ct. 822, 98 L.Ed. 1009 (1954) ). Accordingly, the court held that Fong’s residence in the United States,...