Manuel Campos-Hernandez v. Jefferson Sessions , 889 F.3d 564 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL CAMPOS-HERNANDEZ, No. 14-70034
Petitioner,
Agency No.
v. A094-199-373
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2018
Pasadena, California
Filed May 2, 2018
Before: Marsha S. Berzon and Jay S. Bybee, Circuit
Judges, and Sharon L. Gleason,* District Judge.
Opinion by Judge Berzon
*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 CAMPOS-HERNANDEZ V. SESSIONS
SUMMARY**
Immigration
The panel denied Manuel Campos-Hernandez’s petition
for review of a decision of the Board of Immigration Appeals,
concluding that he was ineligible for special rule cancellation
of removal under the Nicaraguan Adjustment and Central
American Relief Act (NACARA).
To be eligible for cancellation of removal under
NACARA, an applicant who is inadmissible on certain
criminal grounds, like Campos-Hernandez, is subject to a
heightened physical presence requirement such that he must
establish that he “has been physically present in the United
States for a continuous period of not less than 10 years
immediately following the commission of an act, or the
assumption of a status, constituting a ground for removal.”
NACARA § 203(b); 8 C.F.R. § 1240.66(c)(2). The BIA
concluded that Campos-Hernandez’s 2008 conviction was a
ground of removal, and because ten years had not elapsed
between 2008 and the decision of the BIA, he was not eligible
for cancellation of removal under NACARA.
After briefing in this appeal, the BIA held, in Matter of
Castro-Lopez, 26 I. & N. Dec. 693 (BIA 2015), a precedential
opinion in a different immigration appeal, that continuous
presence for cancellation of removal under NACARA
“should be measured from the alien’s most recently incurred
ground of removal.”
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CAMPOS-HERNANDEZ V. SESSIONS 3
The question before the panel in Campos-Hernandez’s
case was which act or status constituting a ground for
removal—the first, last, or any other—starts the clock for the
ten-year “heightened” physical presence requirement.
The panel first determined that, under Nat’l Cable &
Telecommc’ns Ass’n v. Brand X Internet Servs., 545 U.S. 967
(2005), the panel was not bound by this court’s contrary
interpretation of identical language in the now-superseded
suspension of deportation statute in Fong v. INS, 308 F.2d
191 (9th Cir. 1962), concluding that Fong did not hold that a
contrary interpretation was foreclosed.
Second, the panel deferred to Matter of Castro-Lopez. As
a preliminary matter, the panel concluded that Matter of
Castro-Lopez involved the interpretation of a statute, not a
regulation, because the regulation copies verbatim the
relevant statutory text from NACARA. The panel also
determined that NACARA § 203(b) was silent or ambiguous
with respect to the issue here. Further, the panel concluded
that the BIA’s interpretation was reasonable, noting that the
use of indefinite articles in NACARA § 203(b)—(i.e., “an
act,” “a status,” as opposed to “the act,” “the status”) grants
the words an indefinite or generalizing force. Thus, the panel
concluded that it is reasonable to interpret the requisite ten-
year period to immediately follow each disqualifying act or
status, rather than to follow a single particularized act or
status—the first one, as Campos-Hernandez would read the
statute.
The panel also observed that reading the continuous
physical presence requirement to run from the last act or
status, rather than the first, avoids consequences that would
frustrate the evident policy behind the requirement; under the
4 CAMPOS-HERNANDEZ V. SESSIONS
opposite reading, individuals most likely to continue
committing crimes, as evidenced by their very recent
behavior, would be eligible to stay in the country, but
individuals who had not committed any crime for eight or
nine years would not.
COUNSEL
Louis A. Gordon (argued), Law Offices of Louis A. Gordon,
Los Angeles, California; Edgardo Quintanilla, Quintanilla
Law Firm ALC, Sherman Oaks, California; for Petitioner.
Kohsei Ugumori (argued), Senior Litigation Counsel; Emily
Anne Radford, Assistant Director; Joyce R. Branda, Acting
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
CAMPOS-HERNANDEZ V. SESSIONS 5
OPINION
BERZON, Circuit Judge:
To qualify for special rule cancellation of removal under
the Nicaraguan Adjustment and Central American Relief Act
(NACARA),1 an undocumented immigrant must show he has
been “physically present in the United States for a continuous
period of not less than 10 years immediately following the
commission of an act, or the assumption of a status,
constituting a ground for removal.” NACARA § 203(b); see
8 C.F.R. § 1240.66(c)(2). When Manuel Campos-Hernandez
applied for NACARA special rule cancellation, the BIA
interpreted the physical presence requirement as running from
Campos-Hernandez’s most recent disqualifying conviction,
rather than his earliest, and so held him ineligible for
NACARA cancellation of removal. We conclude that the
BIA’s interpretation of NACARA is reasonable and is
therefore entitled to deference. Accordingly, we deny the
petition.
I
Campos-Hernandez, a citizen and native of El Salvador,
entered the United States in 1990 or 1991 without being
admitted or paroled after inspection by an immigration
officer. He is 41 years old and married to a U.S. citizen.
Since 2009, he has worked as a mechanic. Campos-
Hernandez was convicted of drug-related offenses in
California in 2003, 2005, and 2008.
1
Pub. L. No. 105-100, § 203, 111 Stat. 2160, 2196–2201 (1997).
6 CAMPOS-HERNANDEZ V. SESSIONS
In 2008, the Department of Homeland Security (DHS)
served Campos-Hernandez with a Notice to Appear (NTA) at
a removal hearing. The NTA alleged that Campos-
Hernandez arrived in the United States without being
admitted or paroled after inspection, and charged him with
removability both on that basis and on the basis of his drug
convictions.2 Campos-Hernandez admitted the allegations
against him and conceded his removability.
On February 10, 2012, Campos-Hernandez filed a
NACARA application. That same day, an immigration judge
(IJ) found that Campos-Hernandez was ineligible for
NACARA special rule cancellation of removal and denied his
application for relief. Specifically, the IJ determined that,
because the drug convictions rendering him inadmissible
occurred within the previous ten years, Campos-Hernandez
could not satisfy NACARA’s requirement of “10 years [of
continuous physical presence] immediately following the
commission of an act, or the assumption of a status
constituting a ground for removal.” 8 C.F.R. § 1240.66(c)(2).
The BIA dismissed Campos-Hernandez’s appeal in a non-
precedential, single-member opinion. The opinion held that
Campos-Hernandez’s 2008 conviction was “a ground for
removal” under 8 C.F.R. § 1240.66(c)(2), and because ten
years had not elapsed between 2008 and the decision of the
BIA, he was not eligible for cancellation of removal under
2
See 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United
States without being admitted or paroled, or who arrives in the United
States at any time or place other than as designated by the Attorney
General, is inadmissible.”); id. § 1182(a)(2)(A)(i)(II) (“[A]ny alien
convicted of . . . a violation of . . . any law or regulation of a State, the
United States, or a foreign country relating to a controlled substance . . .
is inadmissible.”).
CAMPOS-HERNANDEZ V. SESSIONS 7
NACARA. Campos-Hernandez timely filed a petition for
review.
After the briefing of this appeal, a three-member panel of
the BIA held, in a precedential opinion in a different
immigration appeal, that “for purposes of special rule
cancellation of removal under the NACARA, . . . continuous
physical presence should be measured from the alien’s most
recently incurred ground of removal.” Matter of Castro-
Lopez, 26 I. & N. Dec. 693, 696 (BIA 2015) (emphasis
added). We ordered the parties to submit supplement briefing
addressing Matter of Castro-Lopez, and they did so.
II
A. Applicable law
NACARA was enacted in 1997 to provide immigration
benefits to nationals from certain Central American and
Eastern European countries, including El Salvador. See
NACARA § 203(b);3 8 C.F.R. § 1240.61(a); Barrios v.
Holder, 581 F.3d 849, 857 (9th Cir. 2009). In particular,
“[s]ection 203 of NACARA allows qualified individuals to
apply for special rule cancellation under the more lenient
standards that existed before the passage of [IIRIRA].”
Barrios, 581 F.3d at 857.
3
NACARA amended the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009. IIRIRA had changed the terms previously used in immigration
statutes, replacing “deportation” with “removal” and the concomitant
remedy of “suspension of deportation” with “cancellation of removal.”
Ram v. INS, 243 F.3d 510, 513 (9th Cir. 2001).
8 CAMPOS-HERNANDEZ V. SESSIONS
Most applicants for cancellation of removal under
NACARA must establish physical presence in the United
States for “a continuous period of 7 years immediately
preceding” the filing of an application for cancellation of
removal. NACARA § 203(b); 8 C.F.R. § 1240.66(b)(2). An
applicant for cancellation of removal under NACARA who
is inadmissible under 8 U.S.C. § 1182(a)(2),4 however, is
subject to a heightened physical presence requirement. Such
an applicant, like Campos-Hernandez, must establish that he
“has been physically present in the United States for a
continuous period of not less than 10 years immediately
following the commission of an act, or the assumption of a
status, constituting a ground for removal.” NACARA
§ 203(b); 8 C.F.R. § 1240.66(c)(2).
“Agency regulations interpreting special rule
cancellation”—particularly the continuous physical presence
requirements—“closely track the text of . . . NACARA.”
Barrios, 581 F.3d at 857; see 8 C.F.R. § 1240.66(b)(2), (c)(2).
In turn, the language of NACARA’s continuous physical
presence requirements—both the “heightened” ten-year
requirement and the regular seven-year one—is copied from
an older statute governing suspension of deportation, a now-
superseded form of immigration relief.5 See 8 U.S.C. § 1254
4
As relevant here, that provision covers an applicant who has been
convicted of “a violation of . . . any law or regulation of a State, the
United States, or a foreign country relating to a controlled substance.”
8 U.S.C. § 1182(a)(2)(A)(i)(II). This heightened requirement also applies
to persons deportable under other provisions of the INA not pertinent here.
5
The statutory language governing the continuous physical presence
requirement dates back to at least the 1950s. See Immigration and
Nationality Act of 1952, Pub. L. No. 82-414, § 244(a)(5), 66 Stat. 163,
214–16 (codified at 8 U.S.C. § 1254(a)(5) (1952) (repealed) (entitling a
CAMPOS-HERNANDEZ V. SESSIONS 9
(1996) (repealed); Fong v. INS, 308 F.2d 191 (9th Cir. 1962)
(construing identical language from the now-superseded
suspension of deportation statute).
An agency’s formal interpretation of its governing
statutes may be entitled, when appropriate, to deference under
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984). Chevron deference is appropriate when “it
appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and . . . the
agency interpretation claiming deference was promulgated in
the exercise of that authority.” United States v. Mead Corp.,
533 U.S. 218, 226–27 (2001); see Marmolejo-Campos v.
Holder, 558 F.3d 903, 908 (9th Cir. 2009) (en banc). When
applying Chevron, a court “is confronted with two questions.
First . . . is the question whether Congress has directly spoken
to the precise question at issue. If the intent of Congress is
clear, that is the end of the matter.” Chevron, 467 U.S. at
842. However, “if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. An agency’s
interpretation that conflicts with earlier binding authority of
this court is entitled to deference unless the court’s earlier
interpretation “follows from the unambiguous terms of the
statute and thus leaves no room for agency discretion.” Nat’l
Cable & Telecommc’ns Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 982 (2005); see also Garfias-Rodriguez v.
Holder, 702 F.3d 504, 512–13 (9th Cir. 2012) (en banc).
person to apply for suspension of deportation if, among other things, he
“has been physically present in the United states for a continuous period
of not less than ten years immediately following the commission of an act,
or the assumption of a status, constituting a ground for deportation”).
10 CAMPOS-HERNANDEZ V. SESSIONS
B. Discussion
1. Conflicting authority and Brand X
Before determining whether the BIA’s interpretation in
Matter of Castro-Lopez merits deference, we confront a
threshold issue: whether we are bound by our contrary
interpretation of the now-superseded suspension of
deportation statute. See Fong, 308 F.2d 191. Fong addressed
a continuous physical presence provision identical to the one
we here examine.
In Fong, Louie King Fong’s eligibility for suspension of
deportation hinged, as does Campos-Hernandez’s, on whether
the ten-year physical presence requirement ran from when he
first became deportable in 1944, or from the last act or status
making him deportable, which occurred in 1953. Id. at 193.
If the former, Fong “ha[d] been physically present in the
United States for a continuous period of not less than ten
years immediately following . . . the assumption of a status
. . . constituting a ground for deportation.” Id. at 194 (quoting
8 U.S.C. § 1254(a) (1952)). If the latter, he had not. Finding
the provision “open to two possible constructions,” id., the
court likened the provision to a penal statute, and resolved the
ambiguity by strictly construing the statute in favor of Fong.
Id. at 194–95 (citing Barber v. Gonzales, 347 U.S. 637,
642–43 (1954)). Accordingly, the court held that Fong’s
residence in the United States, dating from his first deportable
act or status in 1944, satisfied the ten-year continuous
physical presence requirement, notwithstanding his later-
incurred grounds for deportation. Id. at 195–96.
NACARA—the statute we address today—is not the same
suspension of deportation statute construed in Fong. In
CAMPOS-HERNANDEZ V. SESSIONS 11
enacting NACARA, however, Congress purposely used
language identical to that in the suspension of deportation
statute, as it intended to preserve the remedy from that statute
for NACARA beneficiaries. See Munoz v. Ashcroft, 339 F.3d
950, 955 (9th Cir. 2003). For that reason, our interpretation
of the provision in Fong would arguably still bind us,
notwithstanding the formal non-identity of the two statutes,
but for the BIA’s recent precedential interpretation of the
provision in Matter of Castro-Lopez.
Fong does not, however, prevent us from deferring to
Matter of Castro-Lopez. “Only a judicial precedent holding
that the statute unambiguously forecloses the agency’s
interpretation, and therefore contains no gap for the agency to
fill, displaces a conflicting agency construction.” Brand X,
545 U.S. at 982–83. Fong expressly determined that the ten-
year physical presence requirement was “open to two possible
constructions.” Fong, 308 F.2d at 194; see id. at 195–96
(“[W]e will not assume that Congress meant to trench on
[Fong’s] freedom beyond that which is required by the
narrowest of several possible meanings of the words used.”)
(emphasis added) (quoting Fong Haw Tan v. Phelan,
333 U.S. 6, 10 (1948)). As Fong did not hold that the
Immigration and Nationality Act “unambiguously
foreclose[d]” a contrary interpretation, our decision in that
case may not “displace[] a conflicting agency construction”
otherwise entitled to deference. Brand X, 545 U.S. at 983.
2. Matter of Castro-Lopez
We next determine whether the BIA’s interpretation of
the ten-year continuous physical presence requirement in
Matter of Castro-Lopez is entitled to deference.
12 CAMPOS-HERNANDEZ V. SESSIONS
As a preliminary matter, we conclude that Matter of
Castro-Lopez involved the interpretation of a statute, not a
regulation. In Matter of Castro-Lopez, the BIA said that it
was interpreting 8 C.F.R. § 1240.66(c)(2), a regulation
implementing NACARA § 203(b), rather than § 203(b) itself.
See 26 I. & N. Dec. at 696 (citing Auer v. Robbins, 519 U.S.
452, 461 (1997)). In general, an agency’s interpretation of its
own ambiguous regulation is subject to “Auer deference.”
See Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820,
828–29 (9th Cir. 2012) (en banc). When, however, “the
underlying regulation at issue [does] ‘little more than restate
the terms of the statute itself[,]’ . . . the question [is] really
one of statutory interpretation.” Id. at 829 (quoting Gonzales
v. Oregon, 546 U.S. 243, 257 (2006)).
The language of 8 C.F.R. § 1240.66(c)(2) copies verbatim
the relevant statutory text of NACARA § 203(b).6 Rather
than specifying whether the ten-year period begins with the
first qualifying act or status or the last one, the regulation
“incorporates the very [gap] . . . the [agency] seeks to
clarify.” Christopher v. SmithKline Beecham Corp., 635 F.3d
383, 394 (9th Cir. 2011).
The language of § 1240.66(c)(2) thus “comes [directly]
from Congress, not the Attorney General,” so “the question
. . . is not the meaning of the regulation but the meaning of
the statute.” Gonzales, 546 U.S. at 257. The regulation’s
“parroting” of the statute, id., is all the more conspicuous
6
Compare NACARA § 203(b) (“[T]he alien . . . has been physically
present in the United States for a continuous period of not less than 10
years immediately following the commission of an act, or the assumption
of a status, constituting a ground for removal”), with 8 C.F.R.
§ 1240.66(c)(2) (same, less one comma).
CAMPOS-HERNANDEZ V. SESSIONS 13
given that NACARA § 203(b) itself borrowed the precise
language from statutes dating back at least to 1952. See
8 U.S.C. § 1254(a) (1952) (repealed). Accordingly, we assess
whether Matter of Castro-Lopez is a permissible
interpretation of the statutory text of NACARA § 203(b),
rather than the regulatory text of 8 C.F.R. § 1240.66(c)(2).
The BIA’s interpretation of the ten-year physical presence
requirement in Matter of Castro-Lopez merits deference
under Chevron. First, as noted above, § 203(b) of NACARA
is “silent or ambiguous with respect to” the issue presented
here: which act or status constituting a ground for
removal—the first, last, or any other—starts the clock for the
ten-year “heightened” physical presence requirement. Anaya-
Ortiz v. Holder, 594 F.3d 673, 677 (9th Cir. 2010) (quoting
Chevron, 467 U.S. at 842).7
Next, Matter of Castro-Lopez is a “published BIA case”
that constitutes “binding agency precedent on-point” that fills
the interpretive gap. See id. (quoting Park v. Holder,
572 F.3d 619, 623–24 (9th Cir.2009)); Matter of Castro-
Lopez, 26 I. & N. Dec. at 696.
Finally, the BIA’s interpretation of the ten-year physical
presence requirement is reasonable. See Garfias-Rodriguez,
702 F.3d at 513. The statute requires ten years’ continuous
physical presence immediately following “the commission of
7
See Fong, 308 F.2d at 194; Gagliano v. INS, 353 F.2d 922, 929 (2d
Cir. 1965) (concluding that the continuous physical presence requirement
was “somewhat ambiguous” and “allow[ed] for two possible
constructions”); Matter of Castro-Lopez, 26 I. & N. Dec. at 694 (“[W]e
find [the language] to be ambiguous. It does not address the situation
where there is more than one act or event that renders an alien removable,
as is the case with the respondent.”).
14 CAMPOS-HERNANDEZ V. SESSIONS
an act, or the assumption of a status, constituting a ground for
removal,” NACARA § 203(b) (emphasis added), not “the
act,” or “the status,” that constitutes a ground for removal.
The indefinite article grants the words “act” and “status” an
“indefinite or generalizing force,” rather than
“particulariz[ing]” them, Gale v. First Franklin Loan Servs.,
701 F.3d 1240, 1246 (9th Cir. 2012), as use of the definite
article would have, to denote a specific act or status
constituting a ground for removal. See also Black’s Law
Dictionary 1 (6th ed. 1990) (“The article ‘a’ is not necessarily
a singular term; it is often used in the sense of ‘any’ . . . .”).
It is thus reasonable to interpret the requisite ten-year period
to immediately follow each disqualifying act or status, rather
than to follow a single particularized act or status—the first
one, as Campos-Hernandez would read the statute.
Reading the continuous physical presence requirement to
run from the last act or status, rather than the first, avoids
consequences that would frustrate the evident policy behind
the requirement. For example, under the opposite reading, an
applicant who was convicted of a drug offense in 2000, but
not again until 2010, could thereafter accumulate any number
of disqualifying convictions and statuses while still remaining
eligible for cancellation of removal under NACARA. The
ten-year crime-free requirement would then serve a perverse
purpose, as the individuals most likely to continue
committing crimes, as evidenced by their very recent
behavior, would be eligible to stay in the country, but
individuals who had not committed any crime for eight or
nine years would not. Such a result would severely
undermine the “testing” or “qualifying” role of the physical
presence provision. Patsis v. INS, 337 F.2d 733, 740 (8th Cir.
1964) (Blackmun, J.); Matter of V-R-, 9 I. & N. Dec. 340, 344
CAMPOS-HERNANDEZ V. SESSIONS 15
(BIA 1961), rule reinstated by Matter of Wong, 13 I. & N.
Dec. 427 (BIA 1969).
Bolstering our conclusion, several circuits (and the BIA)
have interpreted the same phrase in the suspension of
deportation statute, 8 U.S.C. § 1254(a) (1952) (repealed), to
date from the last deportable offense or status. See, e.g.,
Patsis, 337 F.2d at 740–42; Matter of Wong, 13 I. & N. Dec.
at 430.8 Fong itself recognized that the BIA’s construction of
the phrase “might find support in logic,” 308 F.2d at 195,
even though it ultimately resolved the ambiguity in favor of
the petitioner.
We are mindful that NACARA was enacted to help
people “who had taken unusual risks in escaping from
oppressive governments,” and those “whose countries had
been profoundly ravaged by war.” Ram v. INS, 243 F.3d 510,
517 (9th Cir. 2001). But NACARA’s humanitarian purpose
does not override the BIA’s authority to interpret ambiguous
provisions of the statutes that govern it. The reasonableness
of the BIA’s interpretation, along with the weight of authority
supporting it, compel the conclusion that the BIA’s
interpretation is not “arbitrary, capricious, or manifestly
contrary to the statute.” Garcia v. Holder, 659 F.3d 1261,
1266 (9th Cir. 2011) (quoting Chevron, 467 U.S. at 844).
8
See also Gagliano, 353 F.2d at 929 (following Patsis); Bello v.
Gonzales, 152 F. App’x 146, 148 (3d Cir. 2005) (precedential but not
selected for publication) (“This Court has previously indicated, in
accordance with . . . the INS and the majority of courts to address the
issue, that the period of physical presence commences on the date of the
most recent acts constituting grounds for deportation.”); Richard D. Steel,
Steel on Immigration Law § 14:29 (2017) (“If more than one ground of
deportability is alleged, the ten years only begins to run from the last event
that gave rise to a ground of deportability.”).
16 CAMPOS-HERNANDEZ V. SESSIONS
We therefore defer to Matter of Castro-Lopez’s
interpretation of NACARA § 203(b) as requiring that the ten-
year continuous physical presence requirement for NACARA
applicants run from the most recent “commission of an act, or
. . . assumption of a status, constituting a ground for
removal.” Campos-Hernandez was convicted of a drug-
related offense in June 2008, rendering him inadmissible
under § 212(a)(2) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(II).
Because he cannot establish that he has been “physically
present in the United States for . . . not less than 10 years
immediately following the commission of an act, or the
assumption of a status, constituting a ground for removal,” he
is not eligible for special rule cancellation of removal under
NACARA.
The petition is DENIED.