Perez-Enriquez v. Gonzales

• Decision Date: 15 September 2006
• Docket Number: No. 03-70244.,03-70244.
• Citation: 463 F.3d 1007
• Parties: Jaime PEREZ-ENRIQUEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

463 F.3d 1007

Jaime PEREZ-ENRIQUEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-70244.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 23, 2006.

Filed September 15, 2006.

Raul R. Labrador, Nampa, ID, Robert H. Gibbs, Robert H. Pauw, Gibbs Houston Pauw, Seattle, WA, for the petitioner.

Francis W. Fraser, Deborah N. Misir, U.S. Department of Justice, Washington, D.C., for the respondent.

Stephen W. Manning, Jennifer M. Rotman, and Jessica M. Boell, American Immigration Lawyers Association, Portland, OR, for Amicus.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-002-074.

Before: SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, THOMAS, SILVERMAN, McKEOWN, WARDLAW, W. FLETCHER, FISHER, PAEZ, MARSHA S. BERZON, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

The question raised by this petition is whether the admissibility of an alien under the Special Agricultural Worker ("SAW") program is determined only as of the date of admission for lawful temporary residence under 8 U.S.C. § 1160(a)(1), or whether it is determined both as of that date and as of the date of adjustment to lawful permanent residence under § 1160(a)(2). We hold that admissibility is determined as of the date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence. We therefore grant the petition for review.

I. Factual Background

On about November 10, 1988, Jaime Perez-Enriquez, a citizen of Mexico, was admitted to lawful temporary resident status under the SAW provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1160(a)(1). It is undisputed that at the time he was granted temporary resident status, Perez-Enriquez satisfied the requirements for admissibility under § 1160(a)(1). On December 1, 1990, Perez-Enriquez's status was automatically adjusted to lawful permanent resident under 8 U.S.C. § 1160(a)(2).

On March 27, 1989, after his admission as a lawful temporary resident under § 1160(a)(1), but before his adjustment to lawful permanent resident status under § 1160(a)(2), Perez-Enriquez pled guilty to possession for sale of a controlled substance in violation of California Health and Safety Code § 11135. The court imposed a $100 fine and a suspended sentence of 180 days in county jail. In 2001, the Immigration and Naturalization Service¹ ("INS") sought to remove Perez-Enriquez as an inadmissible alien under 8 U.S.C. § 1227(a)(1)(A) on the ground that, due to his drug conviction, he was inadmissible at the time his status was adjusted to that of lawful permanent resident. Perez-Enriquez contended that because he had been admitted under the SAW program, his admissibility had been determined at the time of his admission as a lawful temporary resident under § 1160(a)(1). Therefore, according to Perez-Enriquez, the INS could not seek removal on the ground that he was inadmissible.

The Immigration Judge ("IJ") ordered Perez-Enriquez removed as an inadmissible alien under § 1227(a)(1)(A). The Board of Immigration Appeals ("BIA") summarily affirmed the IJ's decision in a "streamlined" order.

Perez-Enriquez timely petitioned for review in this court. A three-judge panel denied the petition, holding that because Perez-Enriquez had been convicted of his crime before his adjustment to lawful permanent resident status under § 1160(a)(2), he never successfully adjusted to that status. Thus, according to the panel, the INS could seek his removal as an inadmissible alien under § 1227(a)(1)(A) rather than as a lawful permanent resident. Perez-Enriquez v. Gonzales, 411 F.3d 1079, 1083 (9th Cir.2005). We have vacated the decision of the three-judge panel and taken the case en banc to consider Perez-Enriquez's petition anew. Perez-Enriquez v. Gonzales, 436 F.3d 1097 (9th Cir.2006).

Because this was a streamlined decision, we review the IJ's decision as the final agency action. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003), as amended. We review the legal questions presented de novo. de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004), as amended. We give Chevron deference to established constructions by the BIA of the statutes it is charged to administer. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).

II. Jurisdiction

The government has argued that under 8 U.S.C. § 1252(a)(2)(C) we lack jurisdiction to review the petition because Perez-Enriquez "is removable by reason of having committed a criminal offense covered in [8 U.S.C. §] 1182(a)(2)." This argument was made prior to the enactment of the REAL ID Act of 2005. Pub.L. No. 109-13, 119 Stat. 231, 310 (2005). Section 106(a)(1)(A)(iii) of the Act amended 8 U.S.C. § 1252 to add a new subsection. That subsection provides: "Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D). We are presented with a reviewable question of law: whether Perez-Enriquez's admissibility is determined not only as of the date of his admission to lawful temporary status under § 1160(a)(1), but also as of the date of his adjustment to lawful permanent status under § 1160(a)(2). The government contended, and the IJ concluded, that the statute requires that admissibility be determined as of both dates. If the IJ's construction of the statute is wrong, Perez-Enriquez is not removable on the ground charged by the government. We have jurisdiction under § 1252 to review the IJ's legal conclusion.

III. Discussion

The SAW program was established by Congress in 1986 as a two-step legalization program for certain alien agricultural workers. Under 8 U.S.C. § 1160(a)(1), the Attorney General "shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that" the individual has applied for such adjustment within eighteen months of November 6, 1986; has resided in the United States and performed agricultural work for at least 90 man-days during the twelve-month period ending on May 1, 1986; and is otherwise admissible as an immigrant. After a statutorily prescribed time period, the Attorney General then "shall adjust the status of any alien provided lawful temporary resident status under paragraph (1) to that of an alien lawfully admitted for permanent residence." Id. § 1160(a)(2).

Under § 1160(a)(3)(A), the Attorney General "may terminate" an individual's temporary resident status at any time prior to adjustment of status to a lawful permanent resident. Under § 1160(a)(3)(B), the Attorney General "may deny adjustment to permanent status and provide for termination of the temporary resident status" under § 1160(a)(1) if, inter alia, "the alien . . . is convicted of a felony . . . committed in the United States." However, if the Attorney General does not act affirmatively to terminate an alien's temporary resident status under § 1160(a)(3), that status is automatically adjusted to permanent resident under § 1160(a)(2) after the passage of the requisite time period.

The government, however, contends that 8 U.S.C. § 1227(a)(1)(A) dictates a different timetable for determining admissibility than just described. Section 1227(a)(1)(A) provides:

Inadmissible aliens

Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

(Emphasis added.) The government contends that the admissibility of all aliens — even aliens already admitted to lawful temporary resident status under the SAW program under § 1160(a)(1) — is determined, for purposes of any adjustment of status, as of the date of that adjustment. By the government's logic, Perez-Enriquez's conviction rendered him inadmissible at the time of his adjustment from temporary to permanent legal resident status. Therefore, according to the government, Perez-Enriquez is removable as an inadmissible alien under § 1227(a)(1)(A).

The legal question is narrow, but the consequence is important. If the admissibility of an alien admitted under the SAW program is determined at the time of his initial adjustment of status to lawful temporary resident under § 1160(a)(1), and if the alien's status is thereafter automatically adjusted to lawful permanent resident without further inquiry into admissibility, the government may institute removal proceedings against the alien. But the government must do so on the premise that the alien is a lawful permanent resident alien rather than that the alien is inadmissible.

Lawful permanent resident aliens have important protections in removal proceedings that are not provided to inadmissible aliens. For example, depending on the circumstances, a lawful permanent resident alien is entitled to seek relief under Section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996), and INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), or to seek cancellation of removal under 8 U.S.C. § 1229b(a). In Perez-Enriquez's case, the relevant protection is that provided by Section 212(c) and St. Cyr because he pled guilty to his drug offense in 1989, prior to the adoption of three statutes limiting the availability of relief under Section 212(c). See St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271.

The BIA has authoritatively construed the statute in the manner urged by Perez-Enriquez. In Matter of Jimenez-Lopez, 20 I. & N. Dec. 738, ...