Moreno-Morante v. Gonzales
| Decision Date | 21 June 2007 |
| Docket Number | No. 05-75376.,05-75376. |
| Citation | 490 F.3d 1172 |
| Parties | Macario MORENO-MORANTE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cesar Luna, Luna & Associates, San Diego, CA, for the petitioner.
Bryan Beier (argued) and Luis E. Perez (briefed), Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A97-476-013.
Before: B. FLETCHER, EUGENE E. SILER, JR.,* and HAWKINS, Circuit Judges.
We address a question of first impression: does a United States citizen grandchild, in the lawful custody of non-citizen grandparents, meet the statutory definition of "qualifying relative" for the purpose of cancellation of removal? Grandparent Macario Moreno-Morante ("Moreno") seeks review of the Board of Immigration Appeals's ("BIA") adoption and affirmance of an Immigration Judge's ("IJ") denial of his application for cancellation of removal, concluding that Moreno lacked qualifying relatives for purposes of the hardship determination and rejecting the contention that Moreno's U.S. citizen grandchildren should qualify in light of his legal guardianship, custody, and pending adoption of them. We have jurisdiction under 8 U.S.C. § 1252 and deny Moreno's petition.1
On November 25, 2003, Moreno, a native and citizen of Mexico, was appointed the legal guardian of his five U.S. citizen minor grandchildren. Moreno alleges his grandchildren were abused physically and emotionally by their natural mother and respective natural fathers. In addition, he contends both fathers are now absent and the mother has been removed to Mexico due to the domestic violence issues involving her children. Although he did not become a guardian until November 2003, Moreno contends he and his spouse have always played a major role in raising their grandchildren, who have lived with Moreno on a permanent basis since 2002.
More than a month before Moreno was appointed guardian, the Department of Homeland Security ("DHS") issued a Notice to Appear charging Moreno with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who was present in the United States without having been admitted or paroled. At his initial hearing on January 9, 2004, Moreno conceded removability, contesting only the alleged date of entry. Moreno also applied for cancellation of removal pursuant to 8 U.S.C. § 1229(b)(1) and, in the alternative, voluntary departure. Moreno sought and obtained a continuance so he could determine whether his court-ordered custody of his grandchildren constituted a formal adoption, possibly rendering them qualifying relatives for purposes of cancellation.
At a second hearing the following month, Moreno requested and was granted a second continuance to consult with DHS about the possibility of an administrative closure of the removal proceeding in light of Moreno's intent and ongoing efforts to formally adopt his grandchildren.
During the final hearing on April 8, 2004, Moreno's counsel indicated he had been unable to speak with DHS about closing the removal proceedings and indicated that Moreno's adoption of his grandchildren was still six to twelve months from completion. DHS informed the IJ that, after considering the merits of Moreno's case, it had decided not to exercise its discretion to administratively close the removal proceedings.
The IJ issued an oral decision: (1) denying Moreno's request for administrative closure because the government had opted not to exercise its discretion to close the proceedings; (2) pretermitting Moreno's application for cancellation of removal because he had no "qualifying relative" insofar as his adoption of his grandchildren was not yet complete; and (3) granting Moreno's unopposed request for voluntary departure.
Moreno appealed to the BIA, arguing his grandchildren "should be deemed qualifying relatives similar to `children' for cancellation purposes" because "he holds permanent and undisputed legal custody and guardianship" of them. The BIA adopted and affirmed the IJ's decision regarding "[Moreno's] failure to establish a qualifying relative for cancellation of removal" and specifically rejected his request for a remand to the IJ to allow Moreno "to conclude the adoption process of his [U.S.] citizen grandchildren in order to be eligible for cancellation of removal."
Where, as here, the BIA affirms the IJ pursuant to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and does not express disagreement with any part of the IJ's decision, the BIA effectively adopts the IJ's decision in its entirety. See Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). Unlike a streamlined summary affirmance, which signifies only that the result the IJ reached was correct and any errors were harmless or nonmaterial, a Burbano affirmance signifies that the BIA has conducted an independent review of the record and has determined that its conclusions are the same as those articulated by the IJ. See id. at 1040 n. 3. In this case, because the BIA adopted the IJ's decision, and expressed no disagreement with it, we review the IJ's decision as if it were the BIA's. Id. at 1039-40.
We review purely legal determinations de novo. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir. 2002). Although the agency's interpretation of immigration laws is entitled to deference, such deference is required only "after we determine that a statute is ambiguous." Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir.2003).
To be eligible for cancellation of removal, a nonpermanent resident must establish, inter alia, 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." 8 U.S.C. § 1229b(b)(1)(D) (emphasis added). Moreno does not claim to have a qualifying spouse or parent, but contends that each of his grandchildren qualifies as a "child" under the statute.
"Child," for purposes of cancellation of removal, is defined by 8 U.S.C. § 1101(b)(1). Montero-Martinez, 277 F.3d at 1145. Moreno first argues that his grandchildren qualify under this statute because they are orphans as defined by § 1101(b)(1)(F)(i). Alternatively, Moreno argues that his grandchildren are "de facto" children in light of his legal guardianship and custody. Neither argument is supported by — or permissible under — the law.
Our starting point for any issue of statutory construction is the plain language of the statute. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). If the language in question has an unambiguous meaning, our inquiry must cease. Montero-Martinez, 277 F.3d at 1141. Here, the plain language at issue is unambiguous, and Moreno's grandchildren do not satisfy its express terms.
In § 1101(b)(1), Congress defines "child" for purposes of cancellation of removal as "an unmarried person under twenty-one years of age" falling within at least one of several enumerated categories, including: children born out of wedlock, certain stepchildren, legitimate children, certain adopted children (and their siblings), and certain orphans. 8 U.S.C. § 1101(b)(1)(A)(F). Moreno contends his grandchildren qualify as orphans, as defined by § 1101(b)(1)(F)(i).
Section 1101(b)(1)(F)(i) states:2
(1) The term "child" means an unmarried person under twenty-one years of age who is—
. . . .
(F) (i) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 201(b) [8 U.S.C. § 1151(b)],
who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption;
who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or
who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the pre-adoption requirements, if any, of the child's proposed residence:
Provided, That the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act
. . . .
Moreno contends his grandchildren must be deemed "orphans" by virtue of their abandonment by and legal separation from their natural parents. However, even accepting the alleged abandonment and legal separation as true, Moreno's grandchildren do not satisfy § 1101(b)(1)(F)(i)'s requirements. By its plain language § 1101(b)(1)(F)(i) applies only to a child for whom "a classification as an immediate relative under [8 U.S.C. § 1151(b)]" is sought. It is uncontested that no petitions for classification as an "immediate relative" under § 1151(b) have been filed on Moreno's grandchildren's behalf. Nor would such a petition be appropriate here. Moreno's grandchildren are U.S. citizens themselves, whereas § 1151(b) confers "immediate relative" status to the "children, spouses, and parents" of U.S. citizens.
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