Sanchez v. Mukasey

• Decision Date: 02 April 2008
• Docket Number: No. 04-75584.,04-75584.
• Parties: Mario SANCHEZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

521 F.3d 1106

Mario SANCHEZ, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 04-75584.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 14, 2008.

Filed April 2, 2008.

Frank Sprouls, San Francisco, CA, for the petitioner.

Erica B. Miles, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-832-827.

Before: J. CLIFFORD WALLACE, PROCTER HUG, JR., and MARY M. SCHROEDER, Circuit Judges.

Opinion by Judge SCHROEDER; Judge WALLACE Writing Separately.

SCHROEDER, Circuit Judge:

Mario Sanchez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for cancellation of removal. The BIA denied the application on the ground that Sanchez lacked the good moral character required by 8 U.S.C. § 1229b(b)(1)(B), because he had smuggled his alien wife into the country. Citing to Moron v. Ashcroft, 395 F.3d 1089 (9th Cir.2005), Sanchez asks this court to remand to the BIA, claiming he is eligible for the "family unity" waiver contained in 8 U.S.C. § 1182(a)(6)(E)(iii). This is the first published opinion of this court after Moron to consider whether the family unity waiver is available to an alien denied cancellation because he smuggled his spouse, parent, or child into this country.

In Moran, we concluded that an applicant for cancellation of removal is eligible to be considered for a discretionary "family unity" waiver of the alien-smuggling bar when the smuggled alien was the applicant's spouse, parent, son or daughter. 395 F.3d at 1094-95. We denied the petitioner relief in that case because when the petitioner smuggled the alien, she was not yet his wife. Id. We reasoned that the waiver would have applied if they had been married at the time of the entry.

The government's principal contention in this case is that Moran's discussion of the applicability of the family unity waiver to cancellation is dictum that we are free to ignore. We do not accept that contention. We hold that Moran's reasoning is controlling in this case. We therefore remand to the BIA.

The complicated framework of the cancellation of removal statute, 8 U.S.C. § 1229b(b), is important to our analysis. The relevant subsection governing cancellation provides:

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien —

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes 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) (emphasis added). As the language makes clear, the Attorney General may not cancel removal under § 1229b(b)(1) unless the alien establishes "good moral character."

Section 1229b(b) itself does not contain any definition of good moral character. We therefore look to the general definitions section of the Immigration and Nationality Act, 8 U.S.C. § 1101, and specifically to § 1101(f)(3). This subsection defines the term by pointing us to the admissibility provisions of section 1182: a person who is a member of the class of persons described in I.N.A. § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E) cannot be found to have good moral character, regardless of admissibility or inadmissibility. Subsection 1101(f)(3) states:

[n]o person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was ... a member of one or more of the classes of persons, whether inadmissible or not, described in paragraph[] ... (6)(E) ... of section 1182(a) of this title....

The general definition of good moral character thus incorporates provisions that on their face govern admissibility, because § 1182(a)(6)(E) is located in that portion of the statute. Section 1182 governs whether an alien is admissible to the United States, or whether an alien may adjust status to that of permanent resident. In order to determine whether an alien is of good moral character for cancellation of removal, we must determine whether the alien has engaged in conduct that would render the alien inadmissible under § 1182.

Alien smuggling constitutes such conduct. Section 1182(a)(6)(E)(i) renders alien smugglers inadmissible. It provides that "[a]ny 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." Accordingly, because a smuggler is a "member of the [inadmissible] classes of persons" described in § 1182(a)(6)(E)(i), a smuggler cannot be found to have good moral character for purposes of an application for cancellation of removal. See 8 U.S.C. §§ 1101(f)(3); 1229b(b)(1).

The particular provision of § 1182 in dispute here, however, the "family unity" waiver, establishes a limited and discretionary waiver of inadmissibility for a smuggler when the smuggled alien was a close family member.

Section 1182(d)(11) provides:

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) ... 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.

In Moron we considered this provision for the first time in the context of cancellation of removal. 395 F.3d at 1093. The petitioner sought review of an order of removal on grounds of alien smuggling. Id. at 1090. The alien had smuggled his future wife into the country. Id. Moron considered the applicability of the waiver and held it did not apply in that case. Id. at 1094 Its analysis is critical to our own.

Moron recognized that, on its face, the waiver of inadmissibility in (d)(11) applies to admissibility or eligibility for adjustment of status, not to relief from cancellation. See id. at 1093. The Moron opinion noted, however, that the relevant definition of good moral character for cancellation purposes is found in a provision relating to inadmissibility. See id. at 1093. To apply the good moral character provision required some adaptation of the language, including the disqualification for alien smuggling, so that it would apply in the context of an application for cancellation of removal. In the words of the opinion, it was necessary to "translat[e] the aliensmuggling inadmissibility provision and its exceptions into the language of cancellation of removal." Id.

In Moron, we relied upon Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir.2004), where we considered a provision that on its face rendered an alien inadmissible. We held that it also rendered an alien ineligible for cancellation. 389 F.3d at 1093. Moron cited Gonzalez-Gonzalez for the proposition that cancellation of removal must be read to "cross reference the relevant concepts in other statutes." Id. (internal alterations and quotation marks omitted).

In Gonzalez-Gonzalez, we held that the petitioner, who had entered without being admitted and was later convicted of the crime of domestic violence, was ineligible for cancellation of removal. 390 F.3d at 650. Our opinion explained that the section governing cancellation, see 8 U.S.C. § 1229b(b)(1)(C), renders aliens ineligible if they have been convicted of an offense listed in either I.N.A. § 212(a)(2), 8 U.S.C. § 1182(a)(2), a provision governing inadmissibility, or I.N.A. § 237(a)(2)-(3), 8 U.S.C. § 1227(a)(2)-(3), provisions governing removability. Id. Domestic violence is listed as an offense under the removal provisions, see § 1227(a)(2)(E)(i), but not the inadmissibility provision. Id. at 652. The removal provisions state that they only apply to aliens "admitted to the United States." § 1227(a). Because the petitioner was never admitted to the United States, and his offense was only found in the removal provisions, he argued that it posed no bar to his application for cancellation of removal.

We rejected that argument. Gonzalez-Gonzalez, 390 F.3d at 652. We explained that the "language of § 1229b indicates that it should be read to cross-reference a list of offenses in three statutes, rather than the statutes as a whole." Id. Petitioner's status as an alien present without admission was irrelevant. See id. at 653. Because the petitioner was convicted of an offense included in the grounds for removal, he was ineligible for cancellation, regardless of whether he had ever been lawfully admitted. We denied relief from removal. Id.

Moran relied upon that reasoning to reach a conclusion that would make some aliens eligible to obtain relief from removal because they would have been eligible for a waiver of inadmissibility. Moran was decided...