Minto v. Sessions, No. 12-74027

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BEA, Circuit Judge
• Citation: 854 F.3d 619
• Parties: MINTO, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Docket Number: No. 12-74027
• Decision Date: 17 April 2017

854 F.3d 619

MINTO, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 12-74027

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 23, 2017, Honolulu, Hawaii
Filed April 17, 2017

Joseph E. Horey (argued), O'Connor Berman Dotts & Banes, Saipan, Commonwealth of the Northern Mariana Islands, for Petitioner.

854 F.3d 621

Jessica E. Burns (argued), Senior Litigation Counsel; Ashley Martin, Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Alex Kozinski, Michael Daly Hawkins, and Carlos T. Bea, Circuit Judges.

OPINION

BEA, Circuit Judge:

In 2009, the immigration laws of the United States took effect in the Commonwealth of the Northern Mariana Islands ("CNMI"), a group of islands in the Pacific Ocean.¹ An immigration judge ("IJ") then ordered Minto,² who was in the CNMI, removed on the basis of 8 U.S.C. § 1182(a)(7)(A)(i)(I), which makes an immigrant inadmissible if he lacks a valid entry document "at the time of application for admission." The Board of Immigration Appeals ("BIA") dismissed Minto's subsequent appeal. He now petitions this Court for review, arguing that 8 U.S.C. § 1182(a)(7)(A)(i)(I) does not apply to him because he never applied for admission to the United States at a definite time. We deny Minto's petition for review because we conclude that he is an immigrant who lacked a valid entry document and is deemed by law to have made a continuing application for admission by being present in the CNMI, an application that was considered and denied during his removal proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Commonwealth of the Northern Mariana Islands

Previously Spanish possessions, the Northern Mariana Islands first came under United States control after World War II. See U.S. ex rel. Richards v. De Leon Guerrero , 4 F.3d 749, 751 (9th Cir. 1993). In 1976, Congress, the Northern Mariana Islands District Legislature, and the people of the Northern Mariana Islands approved a Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (the "Covenant"). See Pub. L. No. 94–241, 90 Stat. 263, 265–66 (1976) (joint resolution of Congress approving the Covenant and setting out its text). Under the Covenant, the new Commonwealth of the Northern Mariana Islands delegated "complete responsibility" for some matters—such as foreign affairs and defense—to the United States, but retained "the right of local self-government ... with respect to internal affairs." Covenant art. 1, §§ 103–104.

Initially, immigration was reserved to the CNMI. See Covenant § 503(a) ( "The following laws of the United States ... will not apply to the Northern Mariana Islands ... : (a) [ ] the immigration and naturalization laws of the United States."). This changed in 2008 when Congress passed the Consolidated Natural Resources Act ("CNRA"), codified in relevant part at 48 U.S.C. §§ 1806 –1808. The CNRA provided

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that the "immigration laws"³ of the United States "shall apply" to the CNMI no later than December 1, 2009. See id . § 1806(a)(1) (setting June 1, 2009 as the "transition program effective date"—that is, the date that the U.S. immigration laws would take effect in the CNMI); id. § 1806(a)(3) (authorizing the Secretary of Homeland Security to "delay[ ] [the transition program effective date] for a period not to exceed more than [sic] 180 days after such date"). U.S. immigration laws became applicable to the CNMI on November 28, 2009. See 8 C.F.R. § 1001.1(bb). Also, the CNRA "made the CNMI part of the United States within the meaning of the Immigration and Nationality Act." Eche v. Holder , 694 F.3d 1026, 1027 (9th Cir. 2012) (citing CNRA § 702, Pub. L. No. 110–229, 122 Stat. 754, 866 (2008); 8 U.S.C. § 1101(a)(36), (a)(38) ). Therefore, since November 28, 2009, the CNMI has been part of the United States for purposes of the immigration laws.

B. Minto's History in the CNMI

Minto is a native of Bangladesh. He arrived in the CNMI by plane in 1997 and was admitted with a nonresident worker entry permit. In 2003, he married Maria Aurelio Ray ("Ray"), a citizen of the Federated States of Micronesia⁴ and a resident of the CNMI. After his marriage, Minto received an entry permit under section 706D of the Northern Mariana Islands Immigration Regulations as an immediate relative of a resident of the CNMI. See 7 N. Mar. I. Reg. 3786–87 (July 22, 1985).

In 2008, the CNMI Director of Immigration revoked Minto's 706D entry permit because a CNMI court had convicted Ray of two counts of conspiracy to commit marriage fraud. Minto was also convicted of conspiracy to commit marriage fraud and solicitation a few months after his wife's convictions. The convictions did not involve Minto's marriage to Ray, the legitimacy of which has not been questioned. According to the CNMI Director of Immigration, Ray was "deportable" because of this felony offense, and Ray could therefore no longer serve as the sponsoring spouse for Minto's 706D entry permit. Minto appealed the decision to revoke his entry permit to the CNMI Attorney General on the basis that Ray's conviction was not final because Ray had filed a motion for a new trial, which was awaiting adjudication.

C. Procedural History

On May 12, 2010, the Department of Homeland Security ("DHS") served Minto with a Notice to Appear ("NTA"). Allegedly, Minto was "an immigrant not in possession of a valid unexpired immigration visa ... or other valid entry document." The NTA charged Minto with being removable from the United States based on §§ 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(a)(7)(A)(i)(I). Section 1182(a)(6) states that an alien is inadmissible if that alien is "present in the United States without being admitted or paroled." Section 1182(a)(7) states that an immigrant is inadmissible if the immigrant lacks a valid entry document "at the time of application for admission."

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The IJ sustained the charge under § 1182(a)(7). The IJ ordered Minto removed.

Minto appealed the removal order to the BIA. Before the BIA, Minto moved for a remand to apply for parole under a new program created by the United States Citizenship and Immigration Services ("USCIS") called Parole for Immediate Relatives of U.S. Citizens and Certain Stateless Individuals ("the USCIS program"). The BIA dismissed the petition for review, thereby affirming the removal order, and denied the motion for remand. The BIA found that Minto was not entitled to parole under the USCIS program because Minto did not provide evidence of lawful presence in the CNMI as of November 27, 2011. Specifically, the BIA found that he had failed to provide documentation that Ray had filed a motion for a new trial, that Ray had appealed the conviction, or that Minto's appeal of the revocation of his entry permit was successful.

Minto then filed a timely petition for review with this Court, arguing that he is not removable under § 1182(a)(7).

II. JURISDICTION AND STANDARD OF REVIEW

This Court reviews the BIA's legal determinations de novo . De Martinez v. Ashcroft , 374 F.3d 759, 761 (9th Cir. 2004). The BIA's factual findings are reviewed for "substantial evidence," and...