Perez-Martin v. Ashcroft

• Decision Date: 12 January 2005
• Docket Number: No. 03-70923.,03-70923.
• Citation: 394 F.3d 752
• Parties: Jose Artemio PEREZ-MARTIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

394 F.3d 752

Jose Artemio PEREZ-MARTIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-70923.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2004.

Filed January 12, 2005.

COPYRIGHT MATERIAL OMITTED

Orit Levit, Korenberg, Abramowitz & Feldun, Sherman Oaks, CA, for the petitioner.

Elizabeth J. Stevens, U.S. Department of Justice, Washington DC, for the respondent. With her on the briefs was Lisa M. Arnold.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A92-958-263.

Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

In this petition for review of his removal order, petitioner Jose Artemio Perez-Martin ("Perez") challenges the Legalization Appeals Unit ("LAU")'s denial of his 1988 application for temporary resident status as a Special Agricultural Worker ("SAW"). Perez claims both that the LAU erred substantively in denying his application, and that the Immigration Judge ("IJ") and Board of Immigration Appeals ("BIA") erred in refusing to review the LAU's decision as part of the removal proceedings against Perez. This case raises important questions about our jurisdiction and about the operation of the statute governing SAW benefits, 8 U.S.C. § 1160. We hold that we have jurisdiction to review the denial of SAW status, and that neither the IJ nor the BIA has such jurisdiction. On the merits, we deny the petition for review.

I. BACKGROUND

Federal law confers temporary resident status on any alien who qualifies as a "Special Agricultural Worker." 8 U.S.C. § 1160(a)(1). To qualify for this designation, an alien must establish that he or she resided in the United States and performed at least 90 days of "seasonal agricultural services" during the twelve-month period ending on May 1, 1986. Id. § 1160(a)(1)(B). An applicant for SAW adjustment of status has the burden to prove qualifying employment by a preponderance of the evidence, id. § 1160(b)(3)(B)(i), which may include government records, employer or union records, or "such other reliable documentation as the alien may provide," id. § 1160(b)(3)(A). Once the applicant has produced evidence sufficient to show qualifying employment "as a matter of just and reasonable inference," the burden shifts to the government to "disprove" the applicant's evidence "with a showing which negates the reasonableness of the inference to be drawn from the evidence." Id. § 1160(b)(3)(B)(iii).

The statute sets out the exclusive procedures for administrative and judicial review of agency decisions determining SAW status. Id. § 1160(e)(1). Within the agency, a denial of SAW status is subject to a single level of administrative review by an appellate authority that the Attorney General establishes for this purpose. Id. § 1160(e)(2)(A). Judicial review of the agency's denial of SAW status is permissible only in the context of the review of an order of removal. See id. § 1160(e)(3)(A).¹

In December 1988, Perez applied for temporary resident status as a SAW. In his application, Perez claimed as qualifying employment 103 days of picking and weeding strawberries for Juan Ramirez at the Santa Maria Berry Farms in Santa Barbara, California. In support of his claim, Perez submitted an affidavit from Ramirez claiming personal knowledge that Perez worked 103 days picking and weeding strawberries for Ramirez and his wife between May 1 and October 14, 1985.

Seven months later, in response to a grand jury subpoena, Juan Ramirez signed a declaration casting substantial doubt on Perez's claim. In the declaration, Ramirez stated:

I have been advised that several apparently forged documents have surfaced which purport to bear my signature. I have not condoned the use of fraudulent documents, nor have I lent my signature to documents for non-employees. For this reason, I hereby specifically disavow and renounce any and all such documents. I have given no one authority to sign on my behalf and I know of no one who has reason to sign for me. Any document which purports to bear my signature in reference [to] any INS application should therefore be regarded as null and void.

An INS agent then spoke to Raul Segura, the Office Manager for Santa Maria Berry Farms. According to the INS report recounting the interview, Segura said that during the time Ramirez worked land owned by Santa Maria, Ramirez employed no more than two to three individuals at any given time, and those individuals "were continuously being replaced by newly hired employees."

In March 1991, the Service issued a Notice of Intent to Deny Perez's SAW application, on the basis of Ramirez's second affidavit and of the facts provided by Segura. In response to the Notice, Perez submitted a letter on Santa Maria Berry Farms letterhead from Juan Ramirez. Entitled "To: Immigration and Naturalization Service / Re: Jose Artsmio [sic] Perez Martin," the letter states that Ramirez is a strawberry grower and that from 1985-88, the harvesting season was approximately six months, Ramirez paid his workers in cash, and no records were kept. The letter contains no specific information regarding Perez, but it concludes: "I understand that the purpose of this letter is to verify this individual's employment by me, in connection with an application for an immigrant visa." The Service, suggesting it did not find the additional letter from Ramirez to be credible, denied Perez's SAW application.

Perez appealed the decision to the LAU, which dismissed the appeal in October 1994. According to the LAU, the final Ramirez letter did not "overcome the adverse evidence" submitted by the government because the letter failed to address either the Segura statement or Ramirez's own previous affidavit declaring that all employment documents bearing his name should be considered "null and void."

In July 1999, the INS charged Perez with 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 hearing six months later, Perez conceded removability but sought review before the Immigration Judge ("IJ") of the denial of his SAW application. After the issue was briefed, the IJ concluded in June 2000 that the SAW statute foreclosed review of a SAW application by the IJ. The IJ denied adjustment of status and granted Perez voluntary departure, with an alternate order of removal to Mexico. Perez appealed to the BIA, which affirmed the IJ in a brief order.

Perez then petitioned this court for review.

II. JURISDICTION

Our authority to review the denial of Perez's application for SAW status is not immediately clear. Though the parties do not discuss this issue beyond Perez's bare assertion that judicial review of SAW applications has been preserved, we have an independent obligation to inquire into our own jurisdiction. See Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934). The existence of jurisdiction is a question of law reviewed de novo. Chang v. United States, 327 F.3d 911, 922 (9th Cir.2003).

The SAW statute provides: "There shall be judicial review of such a denial [i.e., of SAW status] only in the judicial review of an order of exclusion or deportation under section 1105a of this title (as in effect before October 1, 1996)." 8 U.S.C. § 1160(e)(3)(A). The parenthetical was added to the statute by section 308(g)(2)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-612 ("IIRIRA"), a law that also repealed former 8 U.S.C. § 1105a, see IIRIRA § 306(b); amended 8 U.S.C. § 1252 to govern judicial review of removal orders, see IIRIRA § 306(a); and in general consolidated the former categories of "deportation" and "exclusion" under the single concept of "removal."

Post-IIRIRA, this court has jurisdiction to review the BIA's final order of removal under 8 U.S.C. § 1252(a)(1). The jurisdictional question we face today is whether the SAW statute's provision for judicial review, 8 U.S.C. § 1160(e)(3)(A), still applies when judicial review is premised on 8 U.S.C. § 1252 rather than the section specified in the SAW statute, the now-defunct 8 U.S.C. § 1105a.

Though it appears no federal court has addressed this question, the Fourth Circuit has interpreted language nearly identical to that of 8 U.S.C. § 1160(e)(3)(A) as preserving judicial review of legalization decisions in post-IIRIRA judicial review of removal orders. Specifically, in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir.2003), the Fourth Circuit considered whether its review of a removal order could include a review of a denial of amnesty under 8 U.S.C. § 1255a. Regarding judicial review, the statute at issue in that case provided: "There shall be judicial review of such denial only in the judicial review of an order of deportation under section 1105a of this title (as in effect before October 1, 1996)." Id. at 418 (quoting 8 U.S.C. § 1255a(f)(4)(A)) (internal quotation marks and emphasis omitted).² As in the parallel provision of the SAW statute, the parenthetical was added by IIRIRA. Id. The court found that this addition was susceptible to two constructions in light of IIRIRA's abolition of 8 U.S.C. § 1105a: either the parenthetical functioned to "freeze in place the previously existing scope of judicial review," regardless of the section under which an appellate court exercised jurisdiction, or the parenthetical indicated that judicial review of a denial of legalization was to be available only in the context of judicial review arising "under" § 1105a itself. Id. at 418-19.³ Finding that the latter interpretation would render the parenthetical surplusage, would conflict with a related statute, and would contravene the "well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action," id. at 422 (quoting McNary v....