Moran v. Ashcroft, 02-73551.
| Decision Date | 20 January 2005 |
| Docket Number | No. 02-73551.,02-73551. |
| Citation | 395 F.3d 1089 |
| Parties | Martin Noe MORAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cass W. Christenson, McKenna Long & Aldridge, Washington, DC, for the petitioner.
Nicole Nardone, U.S. Department of Justice, Washington, DC, for the respondent. With her on the briefs was Jamie M. Dowd.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before: B. FLETCHER, PRYMER, and PAEZ, Circuit Judges.
Martin Noe Moran ("Moran") petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the finding of the Immigration Judge ("IJ") that Moran was ineligible for cancellation of removal because he encouraged two aliens to enter the country illegally. The aliens he encouraged are his wife and son. While the statutory scheme governing the requirements for cancellation of removal preserves eligibility for individuals whose involvement in "alien smuggling" is limited to helping their own family members, including spouses and children, the statutory provisions make clear that for acts of smuggling occurring after May 5, 1988, the "family member" waiver does not apply to a spouse who was not a spouse at the time of the smuggling. Because Moran and his wife were married after he helped her enter the country illegally, he does not fall within the exception to the alien smuggling provision, and his involvement in helping his son and his future wife (the mother of his son) cross the border in 1993 renders him ineligible for cancellation of removal. We must therefore deny the petition for review.
Martin Noe Moran, a native and citizen of Mexico, arrived in the United States on April 15, 1989.1 In January 2000, Moran was served with a notice to appear charging removability under Immigration and Nationality Act section 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien present in the United States without having been admitted or paroled.
At his removal hearing, Moran conceded removability. He also testified that he agreed to pay smugglers to help the woman who is now his wife, Ana Yuki Moran, and their son illegally enter the United States from Mexico.2 Specifically, Moran testified that he told Ana he wanted her and their son to come to live with him in the United States and he would be willing to help pay for people to smuggle them across the border. Moran testified that he knew Ana and their son would be using the services of smugglers to enter the United States. Ana made the initial arrangements with the smugglers, but prior to the actual border-crossing, Moran and Ana's parents agreed to pay the smugglers. Once Ana and their son were in the United States, Moran paid his share of the smugglers' fee.
After the hearing, Moran applied for cancellation of removal. Finding that Moran failed to meet the good moral character requirement because he encouraged his future wife and his son to enter the United States illegally, the IJ denied Moran's application for cancellation of removal and granted Moran voluntary departure to Mexico. Moran appealed to the BIA, which summarily affirmed the IJ's order.
Moran timely petitioned this court for review.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of removal. Included within our jurisdiction is review of non-discretionary legal determinations regarding an alien's eligibility for cancellation of removal. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). Although we lack jurisdiction to review discretionary determinations of moral character, we have jurisdiction to determine whether a petitioner's conduct falls within a per se exclusion category, an issue that relates to eligibility for cancellation. See Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003).
We review BIA findings of fact for substantial evidence. Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004).
It is undisputed that Ana and the Morans' son entered the country illegally in March 1993 with the help of paid smugglers, that Moran provided a portion of the smugglers' fee, and that Moran made the payment to the smugglers after Ana and their son were already in the United States. But Moran contests the IJ's conclusion that he encouraged Ana and their son to enter the United States illegally. Moran argues that Ana acted alone in hiring the smugglers. Moran admits he paid the smugglers after Ana and their son had been brought into the United States, but he claims that this was a payment made after the fact to protect his family from the smugglers.
The record contradicts Moran's interpretation of events. At the hearing before the IJ, Moran testified: The IJ then asked Moran, "All right well when you told her that you wanted her to return to the United States, did you tell her that she would have to hire a smuggler for that purpose and that you were willing to help pay for the expense of the smuggler?" Moran responded, "Yes it[']s customary, when a person comes to the United States, you have to enlist a service of a smuggler."
Moran argues to this court that the IJ's question was leading and that Moran's answer "only stated the obvious," i.e., that illegal entry requires the services of a smuggler. But other testimony from the hearing corroborates the IJ's understanding of Moran's answer. Moran testified that he knew beforehand that Ana and their son would be smuggled into the United States and the smugglers would expect payment. When the IJ asked him whether he "let [Ana] know that [he was] willing to help pay the expense of the smuggler," Moran answered "yes." The record also indicates that Moran made an agreement with Ana's parents about paying the smugglers: Moran would pay for Ana, and her parents would pay for the Morans' son. When the IJ asked Moran whether the payment agreement between Moran and Ana's parents was made prior to Ana's hiring of the smuggler, Moran answered"yes." Moran even testified that Ana called from Tijuana, right before she and their son crossed the border, to confirm that Moran would have the money for the smugglers. The record thus provides substantial evidence to support the IJ's conclusion that Moran encouraged Ana and their son to enter the country illegally.
In order to be eligible for cancellation of removal, Moran must have "been a person of good moral character" during the continuous 10-year period of physical presence required by the statute. 8 U.S.C. § 1229b(b)(1)(B). The definitions section provides that an individual shall not be regarded as a person of good moral character if the individual is "a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (9)(A) of section 1182(a) of this title." 8 U.S.C. § 1101(f)(3). Relevant to Moran's case is 8 U.S.C. § 1182(a)(6)(E), which provides:
Smugglers
Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.
Clause (i) shall not apply in the case of [an] alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under section 1153(a)(2) of this title (including under section 112 of the Immigration Act of 1990) or benefits under section 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
For provision authorizing waiver of clause (i), see subsection (d)(11) of this section.
The waiver section provides, in turn:
The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) of this section in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under section 1181(b) of this title and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 1153(a) of this title (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
8 U.S.C. § 1182(d)(11).
The application of this statutory scheme in the cancellation of removal context is an issue of first impression in the Ninth Circuit. Cf. Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir.2000) (). As the referenced statutory sections relating to alien smuggling are written to apply to inadmissibility and not to cancellation of removal, it is necessary to extrapolate from these provisions in order to make sense of them in the cancellation of removal context while giving effect to the family unification policies Congress expressed in the statute. See 8 U.S.C. §...
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