Kaganovich v. Gonzales, 04-70625.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Graber
• Citation: 470 F.3d 894
• Parties: Vitaliy Semenovich KAGANOVICH, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Docket Number: No. 04-70625.,04-70625.
• Decision Date: 12 December 2006

470 F.3d 894 Vitaliy Semenovich KAGANOVICH, Petitioner,
v.
Alberto R. GONZALES, Attorney General, Respondent. No. 04-70625. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 17, 2006. Filed December 12, 2006.

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Jonathan D. Montag, Montag & Nadalin LLP, San Diego, CA, for the petitioner.

John D. Williams, Trial Attorney, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A71-243-964.

Before: CUDAHY,^* GRABER, and IKUTA, Circuit Judges.

GRABER, Circuit Judge:

Petitioner Vitaliy Semenovich Kaganovich seeks review of the Board of Immigration Appeals' ("BIA") order of removal and denial of his claims for relief. In this opinion,¹ we address the question whether an alien who arrives in the United States as a refugee pursuant to 8 U.S.C. § 1157 may be removed, even if his refugee status has never been terminated pursuant to 8

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U.S.C. § 1157(c)(4). We conclude that the answer is "yes."

FACTUAL AND PROCEDURAL BACKGROUND

In the early 1990s, Petitioner applied for refugee status while living in Ukraine, his home country. His application was accepted, and Petitioner arrived in the United States as a refugee in 1994.² After residing in the United States for one year, Petitioner became a lawful permanent resident pursuant to 8 U.S.C. § 1159(a).

In early 2001, Petitioner was stopped at the San Ysidro port of entry on the Mexico-United States border by United States border patrol officers, as he attempted to drive from Mexico back into the United States. The passenger in Petitioner's car was a Ukrainian citizen who presented false documentation to the border patrol. Petitioner was charged with inadmissibility for alien smuggling, under 8 U.S.C. § 1182(a)(6)(E)(i).

After hearings before an immigration judge ("IJ"), the IJ found that Petitioner's conduct met the statutory definition of alien smuggling and therefore ordered him removed. The IJ also denied Petitioner's claims for relief in the form of an application for asylum, withholding of removal, and protection under the Convention Against Torture. The BIA affirmed those findings without elaboration. Petitioner filed a timely petition for review in this court.

STANDARD OF REVIEW

We review de novo questions of law. de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). In interpreting a statute, we apply the two-part test set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Kepilino v. Gonzales, 454 F.3d 1057, 1061 n. 2 (9th Cir.2006) (applying the Chevron test to the BIA's interpretation of the Immigration and Nationality Act). We first examine the text of the statute to determine whether congressional intent is clear. Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If the statute's text is ambiguous, we defer to the agency's reasonable interpretation. Id. at 845, 104 S.Ct. 2778.

DISCUSSION

Petitioner contends that he cannot be removed because he entered the United States as a refugee and his refugee status was not terminated in the manner contemplated by 8 U.S.C. § 1157(c)(4). Petitioner's entry into the United States as a refugee is undisputed. In his application for asylum, and throughout his hearings, Petitioner stated that he originally entered the United States as a refugee. The government has never challenged that fact. Nor has the government ever contended that Petitioner's refugee status was terminated pursuant to § 1157(c)(4). Instead, the government argues that this claim was not exhausted before the BIA and that, if the argument was preserved, Petitioner can be removed notwithstanding his entry into the United States as a refugee. We address each of those arguments in turn.

A. Exhaustion of Claim

We must first decide the preliminary question whether Petitioner exhausted

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his claim before the BIA. See 8 U.S.C. § 1252(d)(1) (providing that the court may review a final order of removal only if "the alien has exhausted all administrative remedies available to the alien as of right"); Vargas v. U.S. Dep't of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th...