Torres v. Barr

• Decision Date: 24 September 2020
• Docket Number: No. 13-70653,13-70653
• Parties: Catherine Lopena TORRES, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

976 F.3d 918

Catherine Lopena TORRES, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 13-70653

United States Court of Appeals, Ninth Circuit.

Submitted En Banc May 28, 2020^* San Francisco, California

Filed September 24, 2020

Stephen Carl Woodruff (argued), Saipan, Northern Mariana Islands; Janet H. King, King Law Offices, Saipan, Northern Mariana Islands; Daniel S. Volchok, Alex Hemmer, and Rebecca M. Lee, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for Petitioner.

Lisa Damiano, Attorney; William C. Minick, Trial Attorney; Aimee J. Carmichael, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Charles Roth, National Immigrant Justice Center, Chicago, Illinois, for Amici Curiae Organizations Assisting Survivors of Domestic Violence.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX7-047

Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw, Ronald M. Gould, Johnnie B. Rawlinson, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Paul J. Watford, Daniel A. Bress, Danielle J. Hunsaker and Patrick J. Bumatay, Circuit Judges.

WARDLAW, Circuit Judge:

The Immigration and Nationality Act (INA or "the Act") suddenly applied to the Commonwealth of the Northern Mariana Islands (CNMI) on November 28, 2009. By that point, Catherine Lopena Torres had been lawfully living and working in the CNMI for over a decade. Though she had never applied to enter the United States, she abruptly found herself within the westernmost border of our country. Nevertheless, the Board of Immigration Appeals (BIA) ordered her removed on the ground that she did not possess a valid entry document "at the time of [her] application for admission" into the United States, in violation of 8 U.S.C. § 1182(a)(7)(a)(i)(I) (hereinafter " § 1182(a)(7)").

A three-judge panel of this court, in a now-withdrawn opinion, Torres v. Barr , 925 F.3d 1360 (9th Cir. 2019), denied Torres's petition for review under our court's decision in Minto v. Sessions , 854 F.3d 619 (9th Cir. 2017). Minto had held that a respondent "present in the CNMI without admission or parole on November 28, 2009" who is placed in removal proceedings is " ‘deemed’ to be ‘an applicant for admission’ " and removable under § 1182(a)(7) for not possessing a valid entry document at the time of application for admission. Id. at 624–25. However, the panel also joined a concurrence by Judge Berzon, which argued that Minto was wrongly decided because its atextual interpretation of the INA had rendered superfluous key provisions of our immigration laws. 925 F.3d at 1363–64.

A majority of the non-recused active judges of our court voted to rehear this case en banc to reconsider Minto ’s construction of § 1182(a)(7).

I.

A.

Around 2000 B.C.E., the ancestors of the Chamorros traveled by canoe from Southeast Asia to an archipelago situated roughly equidistant from what we now call Japan, Papua New Guinea, and the Philippines. About the CNMI , Office of the Governor of the Commonwealth of the Northern Mariana Islands.¹ Three and a half millennia later, in 1521, Portuguese explorer Ferdinand Magellan landed on one of these islands, marking the first known encounter between Europeans and the Chamorros. Id.

A little more than a century after that, Queen Maria Ana of Spain, for whom the islands are now named, financed an expedition to establish a colony on the islands. Id. ; Mariana Islands , Encyclopedia Britannica.² The process of colonization was a brutal one in which many islanders were felled by a deadly combination of violence and foreign disease. Northern Mariana Islands , Encyclopedia Britannica.³ For the next three centuries, the Spanish ruled the Marianas. See United States ex rel. Richards v. De Leon Guerrero , 4 F.3d 749, 751 (9th Cir. 1993). At the conclusion of the Spanish-American War of 1898, however, the Marianas came under German, and then Japanese, rule. Id.

After World War II, the United Nations appointed the United States to administer the island territory through a Trusteeship Agreement, and the relationship between the United States and the Marianas gradually grew more intertwined. See generally Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665. In 1976, the United States dissolved this Trusteeship Agreement and replaced it with the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America ("the Covenant"). Joint Resolution of March 24, 1976, Pub. L. No. 94-241, 90 Stat. 263.⁴ After the Covenant went into effect, certain CNMI citizens and residents, as well as anyone born on CNMI soil, became citizens of the United States. See id. art. III; Sabangan v. Powell , 375 F.3d 818, 819–21 (9th Cir. 2004).

At the time, there were roughly 16,000 people living in the CNMI. S. Rep. No. 110-324, at 2 (2008). The CNMI government retained nearly exclusive control over immigration to the territory. See Covenant § 503(a), 90 Stat. at 268. Although Congress initially envisioned that United States immigration laws would operate within the CNMI within a few years, the CNMI continued to administer its own immigration laws for more than three decades. S. Rep. No. 110-324, at 2–4. During this time, the CNMI government permitted large numbers of temporary "guest workers" to work in the island territory, primarily in the garment sector and other private industries. S. Rep. No. 110-324, at 2–4 ; see also S. Rep. No. 107-28, at 6–7 (2001). These guest workers lacked any U.S. immigration status. S. Rep. No. 110-324, at 4 ; S. Rep. No. 107-28, at 6–7. As the population of the CNMI expanded to 80,000 people, Congress grew increasingly concerned by what it saw as the "ineffective border control[s]" of the territory. S. Rep. No. 110-324, at 2–3.

As a result, Congress enacted the Consolidated Natural Resources Act of 2008 (CNRA), Pub. L. No. 110-229, 122 Stat. 754 (codified in relevant part at 48 U.S.C. §§ 1806 – 1808 ), which imposed United States immigration laws, in particular the INA, within the CNMI effective November 28, 2009, 8 C.F.R. § 1001.1(bb).⁵ Under the INA, a noncitizen present in the United States without being formally admitted or temporarily paroled into the country is inadmissible.⁶ 8 U.S.C. § 1182(a)(6)(A)(i) (hereinafter " § 1182(a)(6)"). Thus, the sudden imposition of the INA could have rendered thousands of guest workers and other lawful residents under CNMI law removable overnight. In an effort to ensure that these guest workers and others like them were not unfairly penalized, and that the CNMI economy would not be destabilized by the deportation of previously admitted guest workers, Congress provided a two-year reprieve in which any alien "lawfully present in the Commonwealth" on November 28, 2009 could not be removed for being present in the United States without admission or parole in violation of § 1182(a)(6). 48 U.S.C. § 1806(e)(1)(A).

B.

Starting in 2010, just months after the INA went into effect in the CNMI, the federal government began charging some CNMI residents as removable under 8 U.S.C. § 1182(a)(7), a provision of the INA not covered by the CNRA's two-year reprieve, for failing to possess a valid entry document "at the time of application for admission." Many CNMI residents, like Torres, challenged their removal on the basis that, because they had not yet submitted an application for admission into the United States, they were not removable under this provision. See, e.g. , Minto , 854 F.3d at 621 ; Erwin v. Whitaker , 752 F. App'x 535, 536 (9th Cir. 2019) ; Liqiang Gu v. Barr , 771 F. App'x 780, 780 (9th Cir. 2019).

Minto was our first decision to address the merits of this argument. Minto started by noting that a separate provision of the INA, 8 U.S.C. § 1225(a)(1), deems any noncitizen present without admission in the United States an "applicant for admission."⁷ 854 F.3d at 624. Conflating the phrase "applicant for admission" with "application for admission," Minto held that any applicant for admission should be treated as having made a continuing application for admission that does not terminate "until it [is] considered by the [Immigration Judge (IJ) ]." Id. The decision in Minto had significant consequences for individuals who were lawfully present in the CNMI before the INA went into effect. Many CNMI residents, like the petitioner in Minto , would have had no reason to apply for entry papers into the United States, as they had entered before such papers were required. Yet, under Minto , all were removable for lack of documentation under § 1182(a)(7) despite Congress's expressed intent that they be permitted to remain for at least two years after the INA went into effect. 48 U.S.C. § 1806(e)(1)(A).

C.

Like the petitioner in Minto , Torres is a CNMI resident whom the government placed into removal proceedings in 2010. Torres, a native of the Philippines, entered the CNMI lawfully as a guest worker in 1997. By November 28, 2009, Torres had given birth to three children in the CNMI, all of whom are U.S. citizens. See Sabangan , 375 F.3d at 819–20 (holding that children born in the CNMI after 1978 are citizens of the United States). Torres also filed a federal employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and was subsequently fired in retaliation for engaging in protected activity. Torres was contesting her dismissal as the INA became effective in the CNMI.

Nine months later, the Department of Homeland Security served Torres with a Notice to Appear, charging her with being removable under 8 U.S.C. § 1182(a)(6) as a noncitizen "present in the United States without being admitted or paroled," and under 8 U.S.C. § 1182(a)(7), as a noncitizen who "at the time of...