Kaganovich v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VITALIY SEMENOVICH KAGANOVICH, 
Petitioner, No. 04-70625
v.
 Agency No.
A71-243-964
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 17, 2006—Pasadena, California
Filed December 12, 2006
Before: Richard D. Cudahy,* Susan P. Graber, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Graber
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
19365
KAGANOVICH v. GONZALES 19367
COUNSEL
Jonathan D. Montag, Montag & Nadalin LLP, San Diego,
California, for the petitioner.
John D. Williams, Trial Attorney, and Terri J. Scadron, Assis-
tant Director, Office of Immigration Litigation, U.S. Depart-
ment of Justice, Washington, D.C., for the respondent.
OPINION
GRABER, Circuit Judge:
Petitioner Vitaliy Semenovich Kaganovich seeks review of
the Board of Immigration Appeals’ (“BIA”) order of removal
and denial of his claims for relief. In this opinion,1 we address
1
Petitioner raises several other issues that we address and reject in a sep-
arate memorandum disposition, filed this date.
19368 KAGANOVICH v. GONZALES
the question whether an alien who arrives in the United States
as a refugee pursuant to 8 U.S.C. § 1157 may be removed,
even if his refugee status has never been terminated pursuant
to 8 U.S.C. § 1157(c)(4). We conclude that the answer is
“yes.”
FACTUAL AND PROCEDURAL BACKGROUND
In the early 1990s, Petitioner applied for refugee status
while living in Ukraine, his home country. His application
was accepted, and Petitioner arrived in the United States as a
refugee in 1994.2 After residing in the United States for one
year, Petitioner became a lawful permanent resident pursuant
to 8 U.S.C. § 1159(a).
In early 2001, Petitioner was stopped at the San Ysidro port
of entry on the Mexico-United States border by United States
border patrol officers, as he attempted to drive from Mexico
back into the United States. The passenger in Petitioner’s car
was a Ukrainian citizen who presented false documentation to
the border patrol. Petitioner was charged with inadmissibility
for alien smuggling, under 8 U.S.C. § 1182(a)(6)(E)(i).
After hearings before an immigration judge (“IJ”), the IJ
found that Petitioner’s conduct met the statutory definition of
alien smuggling and therefore ordered him removed. The IJ
also denied Petitioner’s claims for relief in the form of an
application for asylum, withholding of removal, and protec-
tion under the Convention Against Torture. The BIA affirmed
those findings without elaboration. Petitioner filed a timely
petition for review in this court.
2
The exact procedure that Petitioner used to obtain refugee status is
unclear from the record. There is some evidence that Petitioner may have
been admitted under the provision known as the “Lautenberg Amend-
ment,” Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1990, Pub. L. No. 101-167, tit. V, § 599D, 103 Stat.
1195, 1261-63 (1989).
KAGANOVICH v. GONZALES 19369
STANDARD OF REVIEW
We review de novo questions of law. De Martinez v. Ash-
croft, 374 F.3d 759, 761 (9th Cir. 2004). In interpreting a stat-
ute, we apply the two-part test set forth in Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-45 (1984). See Kepilino v. Gonzales, 454 F.3d 1057,
1061 n.2 (9th Cir. 2006) (applying the Chevron test to the
BIA’s interpretation of the Immigration and Nationality Act).
We first examine the text of the statute to determine whether
congressional intent is clear. Chevron, 467 U.S. at 842. If the
statute’s text is ambiguous, we defer to the agency’s reason-
able interpretation. Id. at 845.
DISCUSSION
Petitioner contends that he cannot be removed because he
entered the United States as a refugee and his refugee status
was not terminated in the manner contemplated by 8 U.S.C.
§ 1157(c)(4). Petitioner’s entry into the United States as a ref-
ugee is undisputed. In his application for asylum, and
throughout his hearings, Petitioner stated that he originally
entered the United States as a refugee. The government has
never challenged that fact. Nor has the government ever con-
tended that Petitioner’s refugee status was terminated pursu-
ant to § 1157(c)(4). Instead, the government argues that this
claim was not exhausted before the BIA and that, if the argu-
ment was preserved, Petitioner can be removed notwithstand-
ing his entry into the United States as a refugee. We address
each of those arguments in turn.
A. Exhaustion of Claim
[1] We must first decide the preliminary question whether
Petitioner exhausted his claim before the BIA. See 8 U.S.C.
§ 1252(d)(1) (providing that the court may review a final
order of removal only if “the alien has exhausted all adminis-
trative remedies available to the alien as of right”); Vargas v.
19370 KAGANOVICH v. GONZALES
U.S. Dep’t of Immigration & Naturalization, 831 F.2d 906,
907-08 (9th Cir. 1987) (holding that a petitioner’s failure to
raise an issue to the BIA deprives this court of jurisdiction).
Petitioner’s notice of appeal to the BIA asserted that the “Im-
migration Judge erred in disregarding that [Petitioner] entered
the United States as a refugee.” That statement “was sufficient
to put the BIA on notice . . . and the agency had an opportu-
nity to pass on this issue.” Zhang v. Ashcroft, 388 F.3d 713,
721 (9th Cir. 2004) (per curiam).
[2] Petitioner’s failure to elaborate on the argument in his
brief to the BIA is immaterial to our jurisdiction. See Ladha
v. INS, 215 F.3d 889, 903 (9th Cir. 2000) (holding that the
petitioners exhausted claim by raising it in their notice of
appeal, even though it was not discussed in the briefs before
the BIA). In short, Petitioner “raised the issue . . . before the
BIA, and our precedent requires nothing more.” Zhang, 388
F.3d at 721; cf. Barron v. Ashcroft, 358 F.3d 674, 676 (9th
Cir. 2004) (holding exhaustion requirement not met where
appeal “nowhere mention[ed]” petitioner’s newly raised due
process challenge).
B. Removability of Refugee
[3] Turning to the merits, we note that we are not the first
circuit to have addressed this issue. In Smriko v. Ashcroft, 387
F.3d 279 (3d Cir. 2004), the Third Circuit faced a similar cir-
cumstance. The court remanded the case to the BIA in part so
that it could decide whether an alien loses refugee status when
the refugee becomes a lawful permanent resident. Id. at 297.
The BIA, in a published opinion, held that regardless of
whether a refugee loses refugee status upon adjusting status
to lawful permanent resident—a question that the BIA con-
cluded that it need not reach—the refugee may be removed.
In re Smriko, 23 I. & N. Dec. 836, 842 (B.I.A. 2005). The
Third Circuit recently upheld that interpretation, affording
Chevron deference to the BIA’s precedential decision.
KAGANOVICH v. GONZALES 19371
Romanishyn v. Atty Gen’l of U.S., 455 F.3d 175, 185 (3d Cir.
2006).
[4] We begin, as always, with the text of the statute in ques-
tion. Chevron, 467 U.S. at 842. The relevant passages plainly
provide for the possibility that a person classified as a “refu-
gee” may be removed. The general removal provision states
that “[a]ny alien” may be removed. 8 U.S.C. § 1227(a)
(emphasis added); see also id. § 1182(a)(6)(E)(i) (alien smug-
gling provision applies to “[a]ny alien” (emphasis added)).
Petitioner does not contend that he is not an “alien.” See 8
U.S.C. § 1101(a)(3) (“The term ‘alien’ means any person not
a citizen or national of the United States.”). Furthermore, Peti-
tioner is unable to point to any provision of the statute that
unambiguously bars removal of refugees.
[5] Even if the statute were ambiguous because of the bene-
fits afforded those who arrive as refugees, we would have to
reach the same conclusion. Under Chevron, we must defer to
an agency’s reasonable, published interpretation of an ambig-
uous provision within its area of expertise. See United States
v. Mead Corp., 533 U.S. 218, 230 (2001) (stating that Chev-
ron deference applies to formal adjudications of agencies).
Deference is especially appropriate in the context of immigra-
tion law, where national uniformity is paramount. See Fer-
reira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004) (noting
that the need for national uniformity is “paramount” in the
immigration context).
[6] The BIA’s interpretation of the statutory scheme as a
whole is reasonable in view of the statutory text allowing
removal of any alien. 8 U.S.C. § 1227(a). The BIA’s interpre-
tation also is reasonable in view of the policy considerations
it examined. Refugee status may be terminated only “if the
Attorney General determines that the alien was not in fact a
refugee . . . at the time of the alien’s admission.” 8 U.S.C.
§ 1157(c)(4). The BIA observed that it is difficult to imagine
that Congress intended validly admitted refugees to be
19372 KAGANOVICH v. GONZALES
shielded permanently from removal, regardless of the per-
son’s acts in the United States. In re Smriko, 23 I. & N. Dec.
at 841.
[7] In conclusion, whether under our reading of the plain
text of the statute or in deferring to the BIA’s interpretation
in In re Smriko, the outcome is the same. We join the Third
Circuit in concluding that an alien who arrives in the United
States as a refugee may be removed even if refugee status has
never been terminated pursuant to 8 U.S.C. § 1157(c)(4).
PETITION DENIED.