Hernandez v. Garland

• Decision Date: 27 June 2022
• Docket Number: 20-70158
• Citation: 38 F.4th 785
• Parties: Manuel Antonio HERNANDEZ, aka Manuel Antonio Hernandez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.4th 785

Manuel Antonio HERNANDEZ, aka Manuel Antonio Hernandez, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-70158

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2022 San Francisco, California

Filed June 27, 2022

Camille Wyss and Chelsea Muir (argued), Certified Law Students; Judah Lakin (argued) and Amalia Wille, Supervising Attorneys; University of California, Berkeley School of Law, Berkeley, California; for Petitioner.

Liza S. Murcia (argued), Attorney; Abigail E. Leach, Trial Attorney; Jeffery R. Leist, Senior Litigation Counsel; Anthony C. Payne, Assistant Director; Brian M. Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges, and Christina Reiss,^* District Judge.

Opinion by Judge Reiss

REISS, District Judge:

Petitioner Manuel Antonio Hernandez, a native and citizen of El Salvador, petitions for review of a decision by the Board of Immigration Appeals ("BIA") dismissing his appeal of the Immigration Judge's ("IJ") decision pretermitting his application for cancellation of removal under 8 U.S.C. § 1229b(a).

In 2002, Petitioner was granted special rule cancellation of removal and adjustment of status to lawful permanent resident under section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA").¹ In 2015, following Petitioner's conviction for possession of a controlled substance under California law, removal proceedings were instituted against him and the IJ found him removable as charged. Petitioner applied for cancellation of removal under 8 U.S.C. § 1229b(a). The IJ found, and the BIA affirmed, that Petitioner was ineligible for cancellation of removal because his "removal ha[d] previously been cancelled under this section." 8 U.S.C. § 1229b(c)(6). Petitioner timely petitioned for review.

This appeal presents a question of statutory interpretation: Is a cancellation of removal under NACARA § 203 a cancellation of removal under 8 U.S.C. § 1229b ? Because a plain reading of the relevant statutes establishes that it is, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner first came to the United States from El Salvador in 1993 at age eleven. In 2000, Petitioner filed an "Application for Suspension of Deportation or Special Rule Cancellation of Removal (pursuant to [NACARA § 203])" with the United States Immigration and Naturalization Service ("INS"). On May 31, 2002, Petitioner appeared before an asylum officer who granted Petitioner special rule cancellation and adjustment of status to lawful permanent resident under NACARA § 203.

On September 3, 2014, in Los Angeles County Superior Court, Petitioner pled no contest and was convicted of possession of a controlled substance, methamphetamine, in violation of California Health and Safety Code § 11377(a). He was sentenced to a term of probation and ordered to participate in a drug rehabilitation program, which he successfully completed.

On May 21, 2015, the United States Department of Homeland Security ("DHS") served Petitioner with a Notice to Appear, charging him with removability because he was convicted of violating a law "relating to a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). On June 26, 2015, after a hearing, the IJ found Petitioner removable as charged.

On August 23, 2016, Petitioner submitted an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). DHS argued that Petitioner was ineligible for cancellation of removal because he was previously granted special rule cancellation of removal under NACARA § 203 and "anyone granted cancellation cannot get a second grant" under 8 U.S.C. § 1229b(c)(6). The IJ ordered, and the parties submitted, supplemental briefing on the issue. On March 27, 2018, the IJ denied Petitioner's request for cancellation of removal, holding: "As the respondent has already received special-rule cancellation of removal under [NACARA], he is statutorily barred under [ 8 U.S.C. § 1229b(c)(6) ] from reapplying for and receiving cancellation of removal under [ 8 U.S.C. § 1229b ](a)."

Petitioner timely appealed the IJ's decision to the BIA, which dismissed his appeal on December 17, 2019. In doing so, the BIA noted that Petitioner did not contest "that he was granted special rule cancellation of removal." The BIA held that special rule cancellation "was explicitly made subject to the provisions of [ 8 U.S.C. § 1229b ]," and therefore the IJ "correctly found the respondent ineligible for cancellation of removal." The BIA rejected Petitioner's argument that he was eligible for cancellation of removal because his earlier cancellation under NACARA was granted administratively by INS, not by an IJ during removal proceedings.

JURISDICTION AND STANDARD OF REVIEW

In reviewing "any judgment regarding the granting of relief under ... [ 8 U.S.C. §] 1229b," our jurisdiction is limited to "review of constitutional claims or questions of law." 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D) ; see also Monroy v. Lynch , 821 F.3d 1175, 1177 (9th Cir. 2016). "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." Aragon-Salazar v. Holder , 769 F.3d 699, 703 (9th Cir. 2014) (citing Barrios v. Holder , 581 F.3d 849, 854 (9th Cir. 2009) ). "Because the BIA expressed agreement with the reasoning of the IJ, this court reviews both the IJ and the BIA's decisions." Kumar v. Holder , 728 F.3d 993, 998 (9th Cir. 2013) (citing Nuru v. Gonzales , 404 F.3d 1207, 1215 (9th Cir. 2005) ).

DISCUSSION

Petitioner argues on appeal that the IJ and BIA erred in finding that his special rule cancellation of removal under NACARA § 203 triggered 8 U.S.C. § 1229b(c)(6)'s bar on subsequent cancellation of removal. He asserts he received only an adjustment of status, not a cancellation of removal and, in any event, a cancellation of removal under NACARA is not a cancellation of removal under 8 U.S.C. § 1229b. The IJ and BIA rejected his arguments.

"[W]hen reviewing the BIA's interpretation of its governing statutes," we apply "the Chevron two-step framework." Aragon-Salazar , 769 F.3d at 703 (citing Marmolejo-Campos v. Holder , 558 F.3d 903, 908 (9th Cir. 2009) (en banc)); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "Accordingly, we must first determine whether ‘the intent of Congress is clear.’ " Aragon-Salazar , 769 F.3d at 703 (quoting Chevron , 467 U.S. at 842, 104 S.Ct. 2778 ). "If it is, both [we] and the agency ‘must give effect to the unambiguously expressed intent of Congress.’ " Id. (alteration in original) (quoting Marmolejo-Campos , 558 F.3d at 908 ). "If, however, the statute is ‘silent or ambiguous,’ " we must decide whether to defer to the BIA's interpretation. Id. (quoting Chevron , 467 U.S. at 843, 104 S.Ct. 2778 ).

Because the BIA's decision in this case was unpublished, Chevron deference is inapplicable, and we instead apply Skidmore deference. See Marmolejo-Campos , 558 F.3d at 909. See generally Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). "Pursuant to Skidmore , a reviewing court may properly resort to an agency's interpretations and opinions for guidance, as they constitute a body of experience and informed judgment." Orellana v. Barr , 967 F.3d 927, 934 (9th Cir. 2020) (internal quotation marks omitted) (quoting Garcia v. Holder , 659 F.3d 1261, 1266–67 (9th Cir. 2011) ).

"[W]e begin where all such inquiries must begin: with the language of the statute itself." Republic of Sudan v. Harrison , ––– U.S. ––––, 139 S. Ct. 1048, 1056, 203 L.Ed.2d 433 (2019) (internal quotation marks omitted) (quoting Caraco Pharm. Lab'ys, Ltd. v. Novo Nordisk A/S , 566 U.S. 399, 412, 132 S.Ct. 1670, 182 L.Ed.2d 678 (2012) ). The relevant section of NACARA is titled "Special Rule for Cancellation of Removal" and provides that "the Attorney General may, under section 240A of such Act [i.e. , 8 U.S.C. § 1229b ], cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States, if the alien applies for such relief" and meets certain criteria. NACARA § 203(a)(2) (emphasis supplied). Special rule cancellation of removal under NACARA is "[s]ubject to the provisions of the Immigration and Nationality Act ... other than subsections b(1), d(1), and (e) of section 240A of such Act [i.e. , 8 U.S.C. § 1229b(b)(1), (d)(1), (e) ]." Id. Section § 1229b(c)(6)'s statutory bar prohibits "[a]n alien whose removal has previously been cancelled under this section" from receiving a second cancellation of removal under § 1229b.

We first address Petitioner's contention that he is not "[a]n alien whose removal has previously been cancelled," 8 U.S.C. § 1229b(c)(6), because the "statutory bar only applies to applicants who have previously been in removal proceedings." At the time he applied for and was granted a special rule cancellation of removal under NACARA, Petitioner had not been served a Notice to Appear, appeared before an IJ, or had a final finding of removability entered against him. Accordingly, he argues "there was no removal to be cancelled."

Nothing in 8 U.S.C. § 1229b or NACARA requires removal proceedings to be initiated or finalized as a precondition to cancellation. To "cancel" means "to decide not to conduct or perform (something planned or expected) usually without expectation of conducting or performing it at a later time." Cancel , Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/cancel (accessed Apr. 14, 2022); see also Cancel , Webster's Third New International Dictionary (2002) (defining "cancel" as "to cease from planning or expecting: call off usu[ally] without...