Vu Nguyen v. Jefferson Sessions, III , 901 F.3d 1093 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VU MINH NGUYEN, No. 17-70251
Petitioner,
Agency No.
v. A047-102-316
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 12, 2018
Seattle, Washington
Filed August 23, 2018
Before: Richard R. Clifton and Jacqueline H. Nguyen,
Circuit Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Nguyen
*
The Honorable Jed S. Rakoff, Senior United States District Judge
for the Southern District of New York, sitting by designation.
2 NGUYEN V. SESSIONS
SUMMARY **
Immigration
The panel granted Vu Minh Nguyen’s petition for review
of a decision of the Board of Immigration Appeals that found
Nguyen ineligible for cancellation of removal, holding that
Nguyen’s admitted use of cocaine did not render him
inadmissible, and therefore did not trigger the stop-time rule
for cancellation of removal, because Nguyen is a lawful
permanent resident not seeking admission, and remanded.
To be eligible for cancellation of removal for certain
permanent residents, one of the statutory prerequisites
Nguyen had to establish was seven years of continuous
residence in the United States. Under the stop-time rule, as
relevant here, a period of continuous residence is deemed to
end “when the alien has committed an offense referred to in
section 1182(a)(2) of this title that renders the alien
inadmissible to the United States under section 1182(a)(2)
of this title or removable from the United States under
section 1227(a)(2) or 1227(a)(4) of this title.” 8 U.S.C.
§ 1229b(d)(1).
During his merits hearing, Nguyen admitted on cross-
examination that he used cocaine in 2005. The immigration
judge pretermitted Nguyen’s application for cancellation of
removal on the ground that Nguyen’s commission of a drug
offense rendered him inadmissible, therefore stopping his
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NGUYEN V. SESSIONS 3
accrual of continuous residence at five years. The BIA
affirmed.
The panel observed that the case implicates two distinct
concepts in our immigration law—inadmissibility and
removability—and explained various ways the difference
between the two is relevant to the immigration system. The
panel also explained that lawful permanent residents are
under most circumstances subject to the grounds of
removability, not inadmissibility, and that Nguyen was
not—and could not have been—charged with being
inadmissible under the circumstances.
The panel held that, under the plain text of the stop-time
rule, Nguyen was not rendered inadmissible by his
possession of cocaine because, as a lawful permanent
resident, he is not subject to the grounds of inadmissibility.
Accordingly, the panel held that Nguyen’s admitted use of
cocaine did not trigger the stop-time rule and, therefore,
Nguyen is eligible to apply for cancellation of removal. The
panel also acknowledged that its conclusion parts ways with
the Fifth Circuit’s decision in Calix v. Lynch, 784 F.3d 1000
(5th Cir. 2015).
The panel remanded to the BIA for consideration of
Nguyen’s application for cancellation of removal on the
merits.
4 NGUYEN V. SESSIONS
COUNSEL
Tim Henry Warden-Hertz (argued) and Matt Adams,
Northwest Immigrant Rights Project, Seattle, Washington,
for Petitioner.
Timothy G. Hayes (argued), Trial Attorney; Andrew N.
O’Malley, Senior Litigation Counsel; Cindy S. Ferrier,
Assistant Director; Chad A. Readler, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
NGUYEN, Circuit Judge:
Vu Minh Nguyen, a citizen of Vietnam, immigrated to
the United States as a lawful permanent resident in the year
2000, when he was eighteen years old. Fifteen years later, he
was placed in removal proceedings and charged with
removability due to three misdemeanor convictions.
Nguyen, with the assistance of pro bono counsel, applied
for cancellation of removal. This form of relief is a
discretionary benefit that requires an immigration judge
(“IJ”) to balance the applicant’s “adverse factors . . . with the
social and humane considerations presented on his (or her)
behalf to determine whether the granting of relief appears in
the best interest of” the United States. Ridore v. Holder,
696 F.3d 907, 920 (9th Cir. 2012) (internal alterations
omitted).
NGUYEN V. SESSIONS 5
The question before us is whether Nguyen is even
eligible to seek cancellation of removal. The government
contends that Nguyen is barred from cancellation
consideration because he failed to meet one of the three
statutory prerequisites: seven years of continuous residence,
which cannot be interrupted by the “commi[ssion] [of] an
offense . . . that renders the alien inadmissible to the United
States under” 8 U.S.C. § 1182(a)(2) or removable under
8 U.S.C. §§ 1227(a)(2) or (a)(4). 8 U.S.C. § 1229b(d)(1).
During his merits hearing, Nguyen admitted on cross-
examination that he used cocaine in 2005. The government
argued below that Nguyen’s commission of a drug offense
rendered him inadmissible, therefore stopping his accrual of
continuous residence at five years. The IJ agreed and
pretermitted Nguyen’s cancellation application. The Board
of Immigration Appeals (“BIA”) affirmed in an unpublished
decision.
We grant Nguyen’s petition for relief and remand for
consideration of his cancellation of removal application on
the merits. We hold that Nguyen was not “rendered
inadmissible” by his drug offense because he is a lawful
permanent resident not seeking admission.
I.
We have jurisdiction under 8 U.S.C. § 1252. The issue
before us is a question of law, which we review de novo.
Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050 (9th Cir.
2014).
6 NGUYEN V. SESSIONS
II.
The relevant statutory section, known as the “stop-time
rule,” 1 see Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018),
states:
For purposes of this section, any period of
continuous residence or continuous physical
presence in the United States shall be deemed
to end . . . when the alien has committed an
offense referred to in section 1182(a)(2) of
this title that renders the alien inadmissible to
the United States under section 1182(a)(2) of
this title or removable from the United States
under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.
8 U.S.C. § 1229b(d)(1).
Both parties agree that the stop-time rule is triggered by
two events: 1) “commi[ssion] [of] an offense referred to in
section 1182(a)(2) of this title,” and 2) the offense’s effect
of “render[ing]” the applicant “inadmissible to the United
States under section 1182(a)(2) of this title or removable
from the United States under section 1227(a)(2) or
1227(a)(4) of this title.” Id. Because Nguyen admitted that
he possessed cocaine—a controlled substance offense
“referred to in section 1182(a)(2)”—it appears that he
triggered the rule’s first requirement. The dispute is whether
1
Time can also be stopped by the “serv[ice] [of] a notice to appear
under section 1229(a) of this title.” 8 U.S.C. § 1229b(d)(1). That portion
of the rule is not at issue in this case.
NGUYEN V. SESSIONS 7
Nguyen’s commission of that offense rendered him
inadmissible.
A.
This case implicates two distinct concepts in our
immigration law—inadmissibility and removability.
“Federal immigration law governs both the exclusion of
aliens from admission to this country and the deportation of
aliens previously admitted.” Judulang v. Holder, 565 U.S.
42, 45 (2011). “An inadmissible alien is one who was not
admitted legally to the United States and is removable under
§ 1182, whereas a deportable alien is in the United States
lawfully and is removable under § 1227.” Vasquez-
Hernandez v. Holder, 590 F.3d 1053, 1055 (9th Cir. 2010).
Prior to enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), “these two
kinds of action occurred in different procedural settings,” but
since then, “the Government has used a unified procedure,
known as a ‘removal proceeding,’ for exclusions and
deportations alike.” Judulang, 565 U.S. at 45–46 (citing
8 U.S.C. §§ 1229, 1229a).
The difference between inadmissibility and removability
is relevant to the immigration system in several ways. First,
when a noncitizen is placed in removal proceedings, the
burden of proof shifts depending on whether he is subject to
inadmissibility or removability. An “applicant for
admission” bears the burden of proving he is not
inadmissible under 8 U.S.C. § 1182, while the government
bears the burden of showing removability when a noncitizen
has been lawfully admitted to the United States. 8 U.S.C.
§ 1229a(c)(2)–(3). Adding further to the statutory scheme’s
complexity is the fact that the grounds for inadmissibility
and deportability do not perfectly match, as some conduct
and offenses can render a person inadmissible but not
8 NGUYEN V. SESSIONS
deportable, and vice versa. See, e.g., id. § 1227(a)(2)(C)
(creating removability for “[c]ertain firearm offenses,” a
ground which is not present in 8 U.S.C. § 1182(a)(2));
compare id. § 1227(a)(2)(B)(i) (allowing an exception to
controlled substance offense removability for “a single
offense involving possession for one’s own use of 30 grams
or less of marijuana”), with id. § 1182(a)(2)(A)(i)(II)
(allowing no such exception in the parallel inadmissibility
ground). And admission to “committing acts which
constitute the essential elements of” a specified offense can
make an applicant inadmissible, while, in most cases, a
conviction is required to make a noncitizen deportable for
commission of a crime. Compare id. § 1182(a)(2)(A)(i),
with id. § 1227(a)(2)(A).
Lawful permanent residents—who have been
“admitted”—are under most circumstances subject to the
grounds of removability, not inadmissibility. Id. § 1227(a)
(subjecting a noncitizen “in and admitted to the United
States” to the grounds of deportability). This is precisely
what occurred in Nguyen’s case. As a lawful permanent
resident, Nguyen was charged with removability under
8 U.S.C. § 1227(a)(2). Nguyen was not charged with being
inadmissible—and indeed, he could not have been. A
noncitizen “lawfully admitted for permanent residence in the
United States shall not be regarded as seeking an admission
into the United States for purposes of the immigration laws”
except under one of six narrow exceptions, none of which
applies here. Id. § 1101(a)(13)(C) (emphasis added).
With this statutory structure as the backdrop, the effect
of the stop-time rule on a lawful permanent resident is clear.
Under the plain text of the stop-time rule, Nguyen was not
rendered inadmissible by his possession of cocaine in 2005
because he is not subject to the grounds of inadmissibility.
NGUYEN V. SESSIONS 9
We can find no provision in the Immigration and Nationality
Act (“INA”)—and the government has pointed us to none—
where inadmissibility is divorced from the context of
seeking admission. There is no reason to conclude that
inadmissibility should function differently for the purposes
of the stop-time rule than it does elsewhere in the INA. We
therefore hold that because Nguyen was not rendered
inadmissible by his admitted use of cocaine in 2005, he did
not trigger the stop-time rule and is eligible to apply for
cancellation of removal.
B.
The government presents several arguments to the
contrary, none of which is persuasive.
First, the government argues that Nguyen was rendered
inadmissible because he would be inadmissible if he ever
sought admission to the United States. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). This reading, however, renders the
second part of the stop-time rule entirely superfluous. “In
construing a statute we are obliged to give effect, if possible,
to every word Congress used.” Reiter v. Sonotone Corp.,
442 U.S. 330, 339 (1979). The canon against surplusage is
not absolute, but “is strongest when an interpretation would
render superfluous another part of the same statutory
scheme.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 385–
86 (2013).
Under the government’s reading, “commi[ssion] [of] an
offense referred to in section 1182(a)(2)” would “render”
any noncitizen inadmissible under all circumstances—
making the phrase “that renders the alien inadmissible . . . or
removable” completely unnecessary. See 8 U.S.C.
§ 1229b(d)(1). The government’s argument is an obvious
overreach, especially because Nguyen’s reading perfectly
10 NGUYEN V. SESSIONS
comports with the statute’s plain language in light of the
distinction between inadmissibility and removability. 2
Second, the government points us to the inadmissibility
grounds set forth in 8 U.S.C. § 1182(a)(2)(A)(i). That
section, which creates inadmissibility on “[c]riminal and
related grounds,” states that “any alien convicted of, or who
admits having committed, or who admits committing acts
which constitute the essential elements of” certain crimes
involving moral turpitude or a controlled substance “is
inadmissible.” Because the statute applies to “any alien,” the
government argues, it also applies to Nguyen, and it
“rendered” him inadmissible in 2005.
The government reads this subsection out of context.
Section 1182, titled “[i]nadmissible aliens,” begins with the
header “[c]lasses of aliens ineligible for visas or admission.”
8 U.S.C. § 1182(a) (emphasis added). Under the statute’s
plain language, a noncitizen is “inadmissible” under section
1182 in the context of seeking a visa or admission, and not
otherwise. Accord 8 C.F.R. § 235.1(f)(2) (noting that a
noncitizen “present in the United States who has not been
admitted or paroled” or “who seeks entry at other than an
open, designated port-of-entry . . . is subject to” the
inadmissibility grounds at 8 U.S.C. § 1182(a)). The
government argues that Congress could have intended
“inadmissibility” to operate differently for the purposes of
the stop-time rule, but “it is a normal rule of statutory
2
The government admits, as it must, that its reading makes part of
the statute superfluous, but argues that because “the stop-time rule was
one feature of a congressional overhaul of immigration statutes . . . it is
understandable that certain superfluidities appear in the statute.” Calix
v. Lynch, 784 F.3d 1000, 1006 (5th Cir. 2015). But the complexities of
the INA are not a reason to abandon traditional tools of statutory
interpretation.
NGUYEN V. SESSIONS 11
construction that identical words used in different parts of
the same act are intended to have the same meaning.”
Pereira, 138 S. Ct. at 2115 (quoting Taniguchi v. Kan
Pacific Saipan, Ltd., 566 U.S. 560, 571 (2012)). Therefore,
we cannot divorce “inadmissibility” from the admissions
context. Nor can we assume that Congress meant to tie the
stop-time rule to commission of an offense alone when it
knew how to write language doing precisely that. See Matter
of Cortez, 25 I&N Dec. 301, 308 (BIA 2010) (noting that the
stop-time rule, “which requires that an [applicant] be
‘render[ed] . . . inadmissible to the United States under
section [1182(a)(2)] or removable from the United States
under section [1227(a)(2)] or [1227(a)(4)],’ clearly
evidences Congress’ understanding of how to draft statutory
language requiring an [applicant] to be inadmissible or
removable under a specific charge” (second alteration in
original) (quoting 8 U.S.C. § 1229b(d)(1))); accord
Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652–53 & n.3
(9th Cir. 2004) (contrasting the legislative history of the
nonpermanent resident cancellation requirements with the
stop-time rule).
Finally, the government argues that the statutory
language is ambiguous, and that the BIA’s interpretation of
the stop-time rule is entitled to deference under Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984). As explained, the statute is not
ambiguous. “We only defer . . . to agency interpretations of
statutes that, applying the normal ‘tools of statutory
construction,’ are ambiguous.” INS v. St. Cyr, 533 U.S. 289,
320 n.45 (2001) (quoting Chevron, 467 U.S. at 843 n.9).
Because the BIA’s interpretation impermissibly renders a
portion of the rule superfluous, there is no ambiguity that
would require us to exercise deference. See Pereira, 138 S.
Ct. at 2117 (finding that the word “under” in the stop-time
12 NGUYEN V. SESSIONS
rule “can only mean ‘in accordance with’ or ‘according to,’”
based on the statute’s “plain language and statutory
context”).
The BIA’s decision in Matter of Jurado-Delgado, which
the agency cited when deciding Nguyen’s case, does not
resolve the issue or require us to defer to the agency. In
Jurado-Delgado, the BIA held that a cancellation applicant
need not “have been charged with . . . an offense as a ground
of inadmissibility or removability in order for the provision
to stop the . . . accrual of continuous residence” pursuant to
the stop-time rule. 24 I&N Dec. 29, 31 (BIA 2006)
(emphasis added). But the case does not squarely address
the question at issue here: whether a lawful permanent
resident can be “rendered inadmissible” when he is not
subject to the grounds of inadmissibility. 3 See Calix v.
Lynch, 784 F.3d 1000, 1009 (5th Cir. 2015) (reading Jurado-
Delgado to “not explicitly answer whether a lawful
permanent resident who does not need to be admitted
3
The Jurado-Delgado respondent was rendered removable by his
commission of two crimes involving moral turpitude during the seven-
year residence period, see 24 I&N Dec. at 29, meaning the BIA did not
need to reach the question of whether his 1992 offense made him
inadmissible. Thus, the BIA’s cursory statement that respondent’s prior
conviction for a crime involving moral turpitude “‘render[ed]’ him
inadmissible under” 8 U.S.C. § 1182(a)(2)(A)(i)(I) is merely dicta. See
id. at 35; see also Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157,
170 (2004) (“Questions which merely lurk in the record, neither brought
to the attention of the court nor ruled upon, are not to be considered as
having been so decided as to constitute precedents.” (quoting Webster v.
Fall, 266 U.S. 507, 511 (1925)).
NGUYEN V. SESSIONS 13
nonetheless has his period of continuous residence stopped
by an offense rendering him inadmissible”). 4
We acknowledge that our conclusion parts ways with the
Fifth Circuit. In Calix v. Lynch, the Fifth Circuit found the
stop-time rule’s phrase “renders the alien inadmissible”
ambiguous as to its effect on lawful permanent residents not
subject to the grounds of inadmissibility, and then, not
applying Chevron but “impos[ing] [its] own construction on
the stop-time rule,” agreed with the government’s
interpretation. 784 F.3d at 1006–07, 1009. Respectfully, we
are not persuaded by Calix’s analysis, which even the
government concedes is problematic. Calix dodged the
surplusage problem by noting that different statutory
sections of the INA can be “difficult to harmonize.” Id. at
1006. As explained, this is an impermissible reason to read
superfluousness into a statute when applying the traditional
rules of statutory construction leads to a perfectly reasonable
reading.
Moreover, as Calix correctly acknowledges, but fails to
address, “the concept of inadmissibility is generally married
to situations in which an alien is actually seeking admission
to the United States.” Id. at 1004. The decision’s reasoning
also conflicts with at least two precedential BIA decisions.
Compare id. at 1006 (relying on the possibility of
surplusage), with Matter of Campos-Torres, 22 I&N Dec.
4
Nor would we defer to the agency’s unpublished decision in
Nguyen’s case because it lacks the power to persuade. See Mejia-
Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011) (noting that an
unpublished, single-member BIA decision does not carry the force of
law and is entitled only to Skidmore deference, meaning that our
“deference [is] proportional to [the decision’s] thoroughness, reasoning,
consistency, and ability to persuade” (citing Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006))).
14 NGUYEN V. SESSIONS
1289, 1294–95 (BIA 2000) (rejecting a reading of the stop-
time rule that would make “referred to in section
[1182(a)(2)]” meaningless); compare also Calix, 784 F.3d at
1011 (relying on the exceptions for some inadmissibility
offenses that do not exist for parallel removability grounds),
with Matter of Garcia, 25 I&N Dec. 332, 335–36 (BIA
2010) (holding that an offense is not “referred to in section
[1182(a)(2)]” for the stop-time rule’s purposes where it
qualifies for the petty theft exception, which only applies to
inadmissibility grounds). 5
***
Under the plain language of the stop-time rule and the
INA, a lawful permanent resident cannot be “rendered
inadmissible” unless he is seeking admission. We therefore
grant the petition and remand for consideration of Nguyen’s
application for cancellation of removal on the merits.
PETITION GRANTED.
5
In a footnote, the BIA suggests that Nguyen may have been
rendered deportable as a drug abuser or addict under 8 U.S.C.
§ 1227(a)(2)(B)(ii), thereby stopping his accrual of time. The BIA
engaged in improper fact-finding, as the IJ made no factual findings
related to drug abuse or addiction. See 8 C.F.R. § 1003.1(d)(3); Brezilien
v. Holder, 569 F.3d 403, 412–13 (9th Cir. 2009). Indeed, the government
conceded below that Nguyen’s admission of drug use did not constitute
a ground of deportability.