Lagandaon v. Ashcroft

• Decision Date: 09 September 2004
• Docket Number: No. 02-73216.,02-73216.
• Citation: 383 F.3d 983
• Parties: Melquiades T. LAGANDAON, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 983

Melquiades T. LAGANDAON, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73216.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2004.

Filed September 9, 2004.

COPYRIGHT MATERIAL OMITTED

Michael Ungar, Simmons & Ungar, San Francisco, CA, for the petitioner.

Terri J. Scadron and Earle B. Wilson, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-307-078.

Before T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.

BERZON, Circuit Judge.

How long is a year? We are not the first to confront this question. See, e.g., British Calendar Act, 1751, 24 Geo. 2 c. 23 (Eng.) (adopting the Gregorian calendar); Pope Gregory XIII, Inter Gravissimas (1582), reprinted in VIII BULLARUM DIPLOMATUM ET PRIVILEGIORUM SANCTORUM ROMAN-PONTIFICUM 386 (Sebastiano Franco & Henrico Dalmazzo, eds. 1863), translation available at http://personal.ecu.edu/ mccartyr/intGrvEng.html (declaring the modern, or Gregorian, calendar, in which years begin January 1 and end December 31). Following our august predecessors, we hold that a year, other than a leap year, is 365 days. In this case, concerning whether an alien has been here long enough to be eligible for discretionary relief, that conclusion means we must grant the petition for review.

I

Certain aliens subject to removal from the United States are eligible, in the discretion of the Attorney General, for "cancellation of removal," permitting them to stay in this country. Petitioner Melquiades Lagandaon seeks to establish eligibility for this form of relief. As he was never a permanent resident of the United States, his eligibility for cancellation of removal is governed by 8 U.S.C. § 1229b(b)(1):

Attorney General may 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 —

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title (except in a case described in section 1227(a)(7) of this title where the Attorney General exercises discretion to grant a waiver); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

Lagandaon was personally served with a Notice to Appear (Notice) for removal proceedings on May 13, 1997. By statute, any period of continuous presence stops running when a Notice is served. § 1229b(d)(1); see also Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 971 (9th Cir.2003). By sheer coincidence, the relevant starting date for determining whether Lagandaon had accrued ten years of physical presence, and was thereby statutorily eligible for cancellation of removal, was May 14, 1987, the day he returned to the United States from an extended trip to Taiwan and the Philippines.¹ The crucial legal question is thus whether the period beginning May 14, 1987, and ending May 13, 1997, is "a continuous period of not less than 10 years," § 1229b(b)(1)(A). Answering that question requires us to decide how long one year is for this purpose.

The immigration judge (IJ) found that Lagandaon would have qualified for and, as a matter of discretion, would have received cancellation of removal, except that he had not been present for the requisite ten years. The IJ found that Lagandaon satisfied the requirements of § 1229(b)(1)(B)-(D) because, inter alia, he and his wife have a seriously disabled American-citizen daughter who would suffer exceptional and extremely unusual hardship if her parents had to leave the country. Lagandaon's wife, who did not leave the United States with him in 1987, was granted cancellation of removal.

On appeal, one member of the Board of Immigration Appeals (BIA) affirmed. The BIA held that Lagandaon needed to accrue ten years of presence "prior to" the date the Notice was served in order to be eligible for cancellation of removal. Because the Notice was served on the 365th day of the tenth year, the BIA reasoned, he did not have ten years' presence before the day the Notice was served.

Lagandaon petitions for review of the BIA's eligibility determination. As the Notice was served after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208 div. C., 110 Stat. 3009-546, this case is governed by IIRIRA's permanent rules. Under those rules, the scope of our review in a cancellation of removal case is limited. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir.2003). We may not review "any judgment regarding the granting of relief under" § 1229b, the section governing cancellation of removal. 8 U.S.C. § 1252(a)(2)(B) (emphasis added).

The BIA's interpretation of the Immigration and Naturalization Act (INA) is not, however, a "judgment" review of which is precluded, as it entails no exercise of discretion. Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005 (9th Cir.2003). Here, "[e]ither the petitioner has been continuously present in the United States for [ten] years or the petitioner has not," Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). As our answer to the question posed by this case thus turns solely upon statutory interpretation, we have jurisdiction. Ramirez-Perez, 336 F.3d at 1005.

II

We review purely legal questions concerning the meaning of the immigration laws de novo. Murillo-Espinoza v. INS, 261 F.3d 771, 773 (9th Cir.2001). As long as the BIA "intended to issue an interpretation" of a statute it enforces, its interpretation of ambiguities in that statute is generally accorded deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Hernandez v. Ashcroft, 345 F.3d 824, 839 n. 13 (9th Cir.2003); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1173 (9th Cir.2003).² Under Chevron, we look first to the plain meaning of a statute and give effect to that meaning where fairly possible. Where a statute is ambiguous and thus admits more than one reasonable interpretation, however, we must defer to the interpretation given by the agency charged with administering the statute. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 816 (9th Cir.2004).³

The BIA's interpretation of § 1229b misreads the statute's plain language by conflating two distinct statutory provisions. Accordingly, the interpretation fails at step one of the Chevron analysis. See Lal v. INS, 255 F.3d 998, 1009 (9th Cir.2001) (reversing the BIA where its reading of an INS regulation was "not consistent with the regulation's plain language").

Section 1229b(d)(1) states that the period of presence "shall be deemed to end ... when the alien is served a notice to appear" (emphasis added). In turn, § 1229b(b)(1)(A) specifies that an applicant for cancellation of removal must have accrued ten years of physical presence "immediately preceding the date of such application" (emphasis added). So the statute's plain language provides, first, that the period of physical presence includes the date the Notice is served, and, second, that when an alien applies for cancellation of removal, the period of continuous presence must end immediately before the application is filed.

The BIA improperly imported the "preceding the date" requirement of § 1229b(b)(1)(A) into § 1229b(d)(1). Its opinion stated:

In this case, the respondent was served with a [Notice to Appear] on May 13, 1997. Accordingly, he must establish continuous physical presence in the United States for 10 years prior to that date.... [W]e find that his period of continuous residence [⁴] in the United States began on May 14, 1987.... Therefore, we conclude that the respondent is ineligible for cancellation of removal pursuant to [§ 1229b] since he failed to establish the minimum physical presence that is statutorily required for relief.

(Emphasis added). The BIA thus concluded that the date the Notice is served does not count toward the period of continuous physical presence, and that the period of continuous presence must therefore end before that date.

The Attorney General contends here that the plain language of § 1229b compels the BIA's conclusion. We disagree.

Section 1229b(d)(1) states that the period of continuous presence ends "when" a Notice to Appear is served, not "prior to" that service. The plain meaning of "when" is not "the day before," any more than it is "the week before." All the dictionaries we have examined⁵ agree that "when" does not mean "prior to."⁶ See, e.g., MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1345-46 (10th ed.1993) (defining "when" as "at or during which time," "at or during the time that: while," "just at the moment that"); XX OXFORD ENGLISH DICTIONARY 209 (2d ed.1989) (giving definitions including "At the (or a) time at which; on the (or an) occasion on which" and "At which time, on which occasion; and then. Sometimes implying suddenness: = and just then, and at that moment."); AMERICAN HERITAGE DICTIONARY 917 (3d ed.1994) (defining "when" as "At what time," "At the time that," and "As soon as"). Further, the fact that Congress used language in § 1229b(b)(1)(A) that does exclude the date of application from the period of presence reinforces our conclusion that its failure to use similar language in § 1229b(d)(1) means that it did not intend to exclude the date of service. We therefore...