Jorge Aragon-Salazar v. Eric Holder, Jr. , 769 F.3d 699 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE DARIO ARAGON-SALAZAR, No. 10-71763
Petitioner,
Agency No.
v. A072-400-647
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 14, 2014—San Francisco, California
Filed October 2, 2014
Before: Consuelo M. Callahan and Milan D. Smith, Jr.,
Circuit Judges, and Edward R. Korman, Senior District
Judge.*
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Callahan
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 ARAGON-SALAZAR V. HOLDER
SUMMARY**
Immigration
The panel granted Jorge Dario Aragon-Salazar’s petition
for review of the Board of Immigration Appeals’ decision
finding that he was statutorily ineligible for special rule
cancellation of removal under the Nicaraguan Adjustment
and Central American Relief Act because he failed to
establish good moral character during the requisite seven-year
period.
As a matter of first impression, the panel held that an
application for NACARA special rule cancellation is not a
continuing application, and that the seven-year period during
which good moral character is required under NACARA ends
on the date of the filing of the application. The panel held
that if Aragon gave false testimony, he did so after the seven-
year period, and the panel accordingly granted his petition
and remanded for further proceedings.
Dissenting, Judge Callahan would affirm the BIA’s
determination that Aragon lacks good moral character, and
would deny his petition. Judge Callahan would find
NACARA § 203 ambiguous, and further disagreed with the
majority’s holding that an applicant’s responsibility to
maintain good moral character vanishes upon the filing of an
application for relief.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARAGON-SALAZAR V. HOLDER 3
COUNSEL
Bobby Glenn Bell, Jr. (argued), Oakland, California, for
Petitioner.
David H. Wetmore (argued) and Matt A. Crapo, United States
Department of Justice, Washington, D.C., for Respondent.
OPINION
M. SMITH, Circuit Judge:
Jorge Dario Aragon-Salazar (Aragon), a native and citizen
of Guatemala, petitions for review of a decision by the Board
of Immigration Appeals (BIA), affirming the Immigration
Judge’s (IJ) denial of his application for special rule
cancellation of removal under the Nicaraguan Adjustment
and Central American Relief Act (NACARA), Pub. L. No.
105-100, 111 Stat. 2160, 2193–2201 (1997). The IJ and BIA
denied Aragon’s application on the ground that his false
testimony prevented him from establishing good moral
character during the seven-year period required by NACARA
in order to be eligible for special rule cancellation of removal.
As a matter of first impression in our circuit, we hold that an
application for special rule cancellation of removal under
NACARA is not a continuing application, and that the seven-
year period during which good moral character is required
under NACARA ends on the date of the filing of the
application. In this case, if Aragon gave false testimony, he
did so after the requisite seven-year period. Accordingly, we
grant the petition for review, and remand for further
proceedings.
4 ARAGON-SALAZAR V. HOLDER
LEGAL, FACTUAL, AND PROCEDURAL
BACKGROUND
I. Statutory Structure
Section 203 of NACARA establishes rules to permit
certain classes of aliens, including some from Guatemala, to
apply for relief from removal under what is titled “Special
Rule for Cancellation of Removal.” NACARA, Pub. L. No.
105-100, 111 Stat. 2160, 2193–2201 (NACARA § 203). In
enacting NACARA, Congress relaxed the requirements of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009,
for cancellation of removal for such aliens by applying the
less stringent pre-IIRIRA requirements. See Barrios v.
Holder, 581 F.3d 849, 857 (9th Cir. 2009); Munoz v.
Ashcroft, 339 F.3d 950, 955–56 (9th Cir. 2003).
Under § 309(f) of IIRIRA, as amended by NACARA
§ 203, the Attorney General has discretion to “cancel removal
of, and adjust to the status of an alien lawfully admitted for
permanent residence” an alien who, inter alia:
(i) is not inadmissible or deportable under
paragraph (2) or (3) of section 212(a) or
paragraph (2), (3), or (4) of section 237(a) of
the Immigration and Nationality Act and is
not an alien described in section
241(b)(3)(B)(i) of such Act;
(ii) has been physically present in the United
States for a continuous period of not less than
7 years immediately preceding the date of
such application;
ARAGON-SALAZAR V. HOLDER 5
(iii) has been a person of good moral character
during such period; and
(iv) establishes that removal would result in
extreme hardship to the alien or to the alien’s
spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for
permanent residence.
IIRIRA § 309(f), as amended by NACARA § 203, amended
by Pub. L. No. 105-139, 111 Stat. 2644, 2644–45 (1997).1 No
person “who has given false testimony for the purpose of
obtaining any [immigration] benefits” during the relevant
period for which good moral character is required shall be
found to be a person of good moral character. 8 U.S.C.
§ 1101(f)(6).
If an application for NACARA special rule cancellation
of removal was treated as a continuing application, an
applicant would be required to show good moral character up
to the point that a final administrative decision is issued in
order to meet NACARA’s requirement. See In re Garcia, 24
I. & N. Dec. 179, 183 (B.I.A. 2007). If, however, an
application for NACARA special rule cancellation of removal
is not a continuing application, then the seven-year good
1
The incorporation of Immigration and Nationality Act (INA)
§ 241(b)(3)(B)(i), 8 U.S.C. § 1231(b)(3)(B)(i) into § 309 of IIRIRA bars
any alien who “ordered, incited, assisted, or otherwise participated in the
persecution of an individual because of that individual’s race, religion,
nationality, membership in a particular group, or political opinion” from
obtaining special rule cancellation of removal. 8 U.S.C.
§ 1231(b)(3)(B)(I). This subsection is commonly referred to as the
“persecutor bar.”
6 ARAGON-SALAZAR V. HOLDER
moral character period requirement ends on the date the
applicant files the application.
II. Factual and Procedural History
Aragon is a native and citizen of Guatemala, who entered
the United States without inspection in 1988. On June 13,
2006, Aragon filed an application for special rule cancellation
of removal under NACARA. On September 13, 2006, Helen
Maudeen Wauku, an asylum officer, interviewed Aragon.
After the interview, the Department of Homeland Security
(DHS) declined to grant Aragon’s application because it
appeared from Aragon’s testimony that he was barred from
relief as a person who ordered, incited, assisted or otherwise
participated in the persecution of others under INA
§ 240A(c)(5), 8 U.S.C. § 1229b(c)(5). DHS instead referred
Aragon’s application to an IJ. Aragon subsequently
submitted an updated NACARA application at the request of
the IJ.
On January 7, 2009, Aragon testified about his role in the
Guatemalan army from 1983 to 1988 and stated on direct
examination that his army unit had arrested one guerrilla. On
cross-examination, Aragon testified that his unit had arrested
guerrillas on approximately two other occasions, but that he
was not present during those arrests. Aragon denied that he
stated during his NACARA interview with Wauku that every
time his unit engaged in combat, it captured three to six
guerillas.
On March 3, 2009, Wauku testified before the IJ about
Aragon’s NACARA interview. Reviewing the notes she took
during the interview, she testified that Aragon stated during
the interview that his unit had captured between three to six
ARAGON-SALAZAR V. HOLDER 7
guerrillas every six months. Wauku testified that she had
concluded after the interview that Aragon had assisted a
“persecutory army” because he drove troops to areas where
“atrocious” conflicts had occurred, and was knowledgeable
about catching guerrillas. She stated that she had therefore
determined that he was ineligible for NACARA relief due to
the persecutor bar, and had referred his application to an IJ.
On March 3, 2009, the IJ denied Aragon’s application for
NACARA special rule cancellation of removal. Although the
IJ found that Aragon had established the extreme hardship
and continuous physical presence requirements, she found
that Aragon had given false testimony for the purpose of
obtaining an immigration benefit, either by fabricating
incidents during the NACARA interview to make himself
seem more important or by minimizing incidents during the
merits hearing to avoid the persecutor bar. Accordingly, the
IJ found that Aragon was unable to establish good moral
character under 8 U.S.C. § 1101(f)(6). The IJ concluded that
Aragon was thus statutorily ineligible for special rule
cancellation of removal, and denied his application.
Aragon appealed to the BIA, which held that an
application for special rule cancellation of removal is a
“continuing” application through removal proceedings. As
such, the BIA explained that the seven-year period during
which good moral character is required did not end on the
date Aragon filed his application, but rather extended until a
final administrative decision was issued. The BIA then
affirmed the IJ’s finding that Aragon made false statements
for the purpose of obtaining special rule cancellation of
removal, based on the inconsistencies between his testimony
at the merits hearing and the NACARA interview. The BIA
thus affirmed the IJ’s conclusion that Aragon was statutorily
8 ARAGON-SALAZAR V. HOLDER
ineligible for special rule cancellation of removal because he
could not establish good moral character during the requisite
seven-year period. Aragon timely filed this petition for
review.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a final order of removal
under 8 U.S.C. § 1252. We review questions of law de novo,
except to the extent that deference is owed to the BIA’s
determination of the governing statutes and regulations.
Barrios, 581 F.3d at 854.
DISCUSSION
The BIA and the IJ concluded that Aragon presented false
testimony during either the NACARA interview or the merits
hearing for the purpose of obtaining NACARA special rule
cancellation of removal. Because the BIA concluded that an
application for NACARA special rule cancellation of removal
is a continuing application, it considered these statements,
which were made after Aragon filed his application, when
determining whether Aragon was a person of good moral
character.
Aragon argues that a NACARA application is not
continuing in nature. Thus, he contends that because his
purportedly false statements were made after he filed his
application, they should not be taken into account for
purposes of making the required good moral character
determination. The government counters that we must defer
to the BIA’s determination that an application for special rule
cancellation of removal is continuing. See Garcia, 24 I. & N.
Dec. at 183 (holding, in the context of the continuous
ARAGON-SALAZAR V. HOLDER 9
physical presence requirement, that an application for
NACARA special rule cancellation of removal is a continuing
application, and that an applicant can accrue physical
presence until the issuance of a final administrative decision);
cf. In re Ortega-Cabrera, 23 I. & N. Dec. 793 (B.I.A. 2005)
(holding that an application for cancellation of removal under
INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1) is a continuing
application for purposes of evaluating good moral character).
We employ the Chevron two-step framework when
reviewing the BIA’s interpretation of its governing statutes.
Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir.
2009) (en banc) (citing Chevron U.S.A. Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984)). Accordingly, we
must first determine whether “the intent of Congress is clear.”
Chevron, 467 U.S. at 842. “If it is, both [we] and the agency
‘must give effect to the unambiguously expressed intent of
Congress.’” Marmolejo-Campos, 558 F.3d at 908 (quoting
Chevron, 467 U.S. at 842–43). If, however, the statute is
“silent or ambiguous,” we must then determine “whether the
agency’s answer is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843.
“At the first step, we ask whether the statute’s plain terms
‘directly addres[s] the precise question at issue.’” Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 986 (2005) (quoting Chevron, 467 U.S. at 843). “If
[we], employing traditional tools of statutory construction,
ascertain[] that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect.” Chevron, 467 U.S. at 843 n.9. Said another way,
“[t]he starting point for our interpretation of a statute is
always its language,” Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 739 (1989), and “[we] must presume that
10 ARAGON-SALAZAR V. HOLDER
a legislature says in a statute what it means and means in a
statute what it says there,” Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253–54 (1992). “When the words of a statute are
unambiguous, then, this first canon is also the last: judicial
inquiry is complete.” Id. at 254 (internal quotation omitted).
The relevant portion of NACARA states that the Attorney
General has discretion to cancel removal of an alien, who,
among other requirements:
(ii) has been physically present in the United
States for a continuous period of not less than
7 years immediately preceding the date of
such application; [and]
(iii) has been a person of good moral character
during such period.
NACARA § 203 (emphasis added).
The plain terms of the statute require that an applicant for
NACARA special rule cancellation of removal be a person of
good moral character during the requisite period of
continuous physical presence, which is “not less than 7 years
immediately preceding the date of such application.”
NACARA § 203(1)(A)(ii). When must the applicant have
“good moral character?” He must have it “during such
period,” id. § 203(1)(A)(iii), which clearly refers back to the
period of time for which continuous physical presence is
required, as stated in NACARA § 203(1)(A)(ii). The plain
language of NACARA is thus clear—the period of time for
which an applicant must show good moral character refers to
the period of seven years “immediately preceding the date of
[the NACARA] application,” id. § 203(1)(A)(ii), and ends on
ARAGON-SALAZAR V. HOLDER 11
the date that application is filed. For this reason, any conduct
occurring after the filing of the application is irrelevant to the
good moral character determination required under the plain
language of the statute.2 Under the plain terms of NACARA,
an application for special rule cancellation of removal is
therefore not a continuing application.
The language of the now-repealed suspension of
deportation statute, 8 U.S.C. § 1254(a)(1) (1996) (repealed by
IIRIRA on September 20, 1996) (emphasis added), provides
additional support for our conclusion that the statutory
language relevant to special rule cancellation of removal
under NACARA unambiguously establishes that it is not a
continuing application. To have been eligible for suspension
of deportation, an alien must have established, inter alia, that
he “[was] physically present in the United States for a
continuous period of not less than seven years immediately
preceding the date of such application, and . . . that during all
of such period he was and is a person of good moral
character.” Id. (emphasis added); see also 8 C.F.R.
§ 240.65(b) (requiring that alien “was and is” a person of
good moral character to be eligible for suspension of
2
Moreover, the phrase “date of such application” suggests a fixed date
of the application. NACARA § 203(1)(A)(ii). Unsurprisingly, the
agency’s practice has otherwise conformed to the plain language of the
statute. For instance, under the applicable regulations, an alien must make
an application for special rule cancellation of removal on Form I-881,
which is titled “Application for . . . Special Rule Cancellation of
Removal.” 8 C.F.R. § 240.63(a). The regulations also specifically
provide that an alien must establish that he “has been physically present
in the United States for a continuous period of 7 years immediately
preceding the date the application was filed” and that he “has been a
person of good moral character during the required period of continuous
physical presence.” Id. § 240.66(b) (emphasis added).
12 ARAGON-SALAZAR V. HOLDER
deportation under NACARA). This language shows that
“Congress . . . knew how to expand the required period of
good moral character beyond the period immediately
preceding the date of application by using the expansive
language ‘was and is’ rather than the past tense ‘has been,’”
Cuadra v. Gonzales, 417 F.3d 947, 951 (8th Cir. 2005), but
did not do so for special rule cancellation of removal. See
Conn. Nat’l Bank, 503 U.S. at 253–54; Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (internal quotation omitted)); see
also Keene Corp. v. United States, 508 U.S. 200, 208 (1993)
(highlighting a court’s “duty to refrain from reading a phrase
into the statute when Congress has left it out”).
The government asserted at oral argument that the “date
of such application” language in the NACARA special rule
cancellation of removal statute is ambiguous.3 First, the
government argued that the NACARA special rule
cancellation of removal statute is ambiguous for the same
reasons the Seventh Circuit found ambiguity in the
cancellation of removal statute, 8 U.S.C. § 1229b(b)(1), in
Duron-Ortiz v. Holder, 698 F.3d 523 (7th Cir. 2012). In
Duron-Ortiz, the Seventh Circuit held that the inclusion of a
“stop-time” rule, which provides that any period of
continuous physical presence ends “when the alien is served
a notice to appear,” 8 U.S.C. § 1229b(d)(1), adds ambiguity
3
The government failed in its brief to clearly articulate how the relevant
statutory language is ambiguous. Rather, it focused its argument on how
the BIA’s interpretation of the language is a permissible construction of
the statute.
ARAGON-SALAZAR V. HOLDER 13
to the cancellation of removal statute. Duron-Ortiz, 698 F.3d
at 527. The Seventh Circuit explained that this “interplay of
the statutory language” creates ambiguity because the stop-
time provision renders the “date of [the] application”
language superfluous when the notice to appear is served. Id.
The Seventh Circuit concluded that “[i]n light of the possible
ambiguity the stop-time provision adds to the [cancellation
of] removal statute,” it must defer to the BIA’s reasonable
interpretation of when an alien must show good moral
character for cancellation of removal. Id. However, unlike
the provision at issue in Duron-Ortiz, NACARA special rule
cancellation of removal does not include such a stop-time
rule. See NACARA § 203. Therefore, the ambiguity that the
Seventh Circuit described in the cancellation of removal
statute is not present in the NACARA special rule
cancellation of removal statute.
Second, the government pointed to Aragon’s NACARA
application to argue that the statutory language “the date of
such application” is ambiguous. See also Garcia, 24 I. & N.
Dec. at 183. The government represented that Aragon had
filed two NACARA applications, and claimed that it was
therefore unclear to which date the statute refers. Even if we
were to consider arguments based on documents extrinsic to
the statute in evaluating the statute’s meaning, this argument
is plainly incorrect. The record shows that the second
application that Aragon submitted was an update to his initial
application. Moreover, the DHS notice to Aragon, dated
September 13, 2006, which notified him that DHS declined
to grant his application after the NACARA interview,
specifically stated that it was “not a denial of [his]
application,” and that the application would be referred to an
IJ. The notice also provided that the IJ may give Aragon
permission “to supplement [his] present application.” We
14 ARAGON-SALAZAR V. HOLDER
see no ambiguity in the language of the statute referring to
“the date of such application,” and the government’s attempts
to manufacture ambiguity are unpersuasive.4
For these reasons, the plain language of the NACARA
special rule cancellation of removal statute unambiguously
expresses Congress’s intent that the relevant good moral
character period is the seven-year period preceding the filing
of the application. We therefore hold that an application for
special rule cancellation of removal under NACARA is not a
continuing application. Because the statutory language is
unambiguous, we end our inquiry at Chevron’s first step, and
need not reach the question whether the BIA’s approach is
based on a permissible construction of the statute. See
Chevron, 467 U.S. at 842–43. This result is consistent with
that of the Eighth Circuit in Cuadra v. Gonzales, which is the
only other federal appellate decision to address this precise
issue. 417 F.3d at 951.
4
The government also argues that Castillo-Cruz v. Holder, 581 F.3d
1154, 1162 (9th Cir. 2009), forecloses Aragon’s argument that the period
during which good moral character is required for NACARA does not
extend until a final administrative decision is issued. Castillo-Cruz,
however, cited a BIA decision concluding that applications for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C) are continuing,
without considering whether to afford the decision deference under
Chevron. Id. We are not bound by this unreasoned conclusion arising in
a different context. See In re Wal-Mart Wage & Hour Emp’t Practices
Litig., 737 F.3d 1262, 1268 n.8 (9th Cir. 2013) (“Where it is clear that a
statement is made casually and without analysis, where the statement is
uttered in passing without due consideration of the alternatives, or where
it is merely a prelude to another legal issue that commands the panel’s full
attention, it may be appropriate to re-visit the issue in a later case.”
(quoting United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001) (en
banc) (Kozinski, J., concurring))).
ARAGON-SALAZAR V. HOLDER 15
In reaching this result, we acknowledge that it may allow
an alien who presents false testimony after his application is
filed to nonetheless show good moral character for purposes
of special rule cancellation of removal. However, we decline
to allow policy considerations to inject ambiguity into the text
of an unambiguous statute. Using extrinsic policy
considerations to determine whether there is statutory
ambiguity is plainly contrary to Supreme Court precedent on
both Chevron step one and statutory interpretation more
generally. See, e.g., DePierre v. United States, 131 S. Ct.
2225, 2233 (2011) (“That we may rue inartful legislative
drafting . . . does not excuse us from the responsibility of
construing a statute as faithfully as possible to its actual
text.”); Conn. Nat’l Bank, 503 U.S. at 253–54; Chevron, 467
U.S. at 842, 843 n.9.
Moreover, our construction of NACARA will not lead to
the absurd result that an applicant who provides false
testimony following the filing of the application will
necessarily obtain relief. As the government acknowledges,
special rule cancellation of removal is a discretionary form of
relief, see NACARA § 203, under which an adjudicator may
consider an alien’s false testimony as a discretionary factor,
even if the alien can establish good moral character during the
requisite seven-year period under the statute.
Aragon filed his application for special rule cancellation
of removal on June 13, 2006. The relevant period during
which Aragon must show good moral character is therefore
the seven-year period immediately preceding June 13, 2006.
Aragon’s purportedly false statements were given during
either his NACARA interview on September 13, 2006 or at
the merits hearing on January 7, 2009. Both of these dates
are outside the relevant time period during which good moral
16 ARAGON-SALAZAR V. HOLDER
character is required under NACARA § 203. Thus, the IJ and
the BIA incorrectly determined that Aragon’s testimony after
he filed the NACARA application rendered him statutorily
ineligible for special rule cancellation of removal.
Accordingly, we grant the petition for review and remand this
matter to the BIA to determine, consistent with this opinion,
whether Aragon is eligible for NACARA special rule
cancellation of removal.
PETITION FOR REVIEW GRANTED AND
REMANDED.
CALLAHAN, Circuit Judge, dissenting:
The majority holds that a petitioner seeking relief under
the Special Rule for Cancellation of Removal, IIRIRA
§ 309(f), as amended by NACARA § 203, amended by Pub.
L. No. 105–139, 111 Stat. 2644–45 (1997), is not disqualified
from relief based upon false testimony given after the filing
and during the processing of his immigration application
because those falsehoods did not take place within the seven
years preceding the date of his application. In arriving at its
conclusion, the majority relies on the first prong of the test set
forth in Chevron, U.S.A., Inc. v. Natural Res. Ref. Council,
Inc., 467 U.S. 837 (1984), finding the statutory language of
§ 203 to be both clear and compelling. I respectfully
disagree. I believe the statute is ambiguous because it does
not address the question of whether maintaining a good moral
character is a continuing obligation during the processing of
an individual’s immigration application. Considering the
statute in the context of immigration proceedings, I do not
agree that an applicant’s responsibility to maintain a good
ARAGON-SALAZAR V. HOLDER 17
moral character vanishes upon the filing of an application for
relief. I would affirm the BIA’s determination that Aragon
lacks a good moral character and would deny his petition for
review.
Pursuant to the applicable Chevron two-step test, the
court must first determine whether “the intent of Congress is
clear.” Chevron, 467 U.S. at 842. If it is, we give effect to the
“unambiguously expressed intent of Congress.” Id. at
842–43; see also Marmolejo-Campos v. Holder, 558 F.3d
903, 908 (9th Cir. 2009) (en banc). However, if the statute is
“silent or ambiguous,” we must determine “whether the
agency’s answer is based on a permissible construction of the
statute,” rather than applying our “own construction of a
statutory provision.” Chevron, 467 U.S. at 843–44.
A.
Section 203 plainly states that the Attorney General has
discretion to cancel removal of an alien who, inter alia, “(ii)
has been physically present in the United States for a
continuous period of not less than 7 years immediately
preceding the date of such application; [and] (iii) has been a
person of good moral character during such period.”
NACARA § 203. However, the question here is not whether
the statute reflects the “unambiguously expressed intent of
Congress” to require an applicant to maintain good moral
character during the seven years preceding the date of the
filing of the application, but instead whether § 203 requires
maintaining good moral character throughout the entirety of
the immigration application process.
Section 203 is silent on this issue. It contains no language
that explicitly addresses Congress’s intent concerning an
18 ARAGON-SALAZAR V. HOLDER
applicant’s duty to show a good moral character throughout
the processing of an immigration application. Congress,
through § 203, simply provided a start date—seven years
preceding the date of the filing of the NACARA
application—and failed to mention an end date. See
NACARA § 203.
Although the statute’s silence might in itself place it
outside the coverage of Chevron’s first prong, this conclusion
is supported, if not compelled, by the requirement that the
statute be read in context. “Statutory language cannot be
construed in a vacuum,” rather “[i]t is a fundamental canon
of statutory construction that the words of a statute must be
read in their context and with a view to their place in the
overall statutory scheme.” Cazerez-Gutierrez v. Ashcroft,
382 F.3d 905, 912 (9th Cir. 2004) (quoting Davis v. Mich.
Dep’t of Treasury, 489 U.S. 803, 809 (1989)). In FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33
(2000), the Supreme Court set forth the following standard:
In determining whether Congress has
specifically addressed the question at issue, a
reviewing court should not confine itself to
examining a particular statutory provision in
isolation. The meaning—or ambiguity—of
certain words or phrases may only become
evident when placed in context. See Brown v.
Gardner, 513 U.S. 115, 118 (1994)
(“Ambiguity is a creature not of definitional
possibilities but of statutory context”). It is a
“fundamental canon of statutory construction
that the words of a statute must be read in
their context and with a view to their place in
the overall statutory scheme.” Davis v.
ARAGON-SALAZAR V. HOLDER 19
Michigan Dept. of Treasury, 489 U.S. 803,
809 (1989). A court must therefore interpret
the statute “as a symmetrical and coherent
regulatory scheme,” Gustafson v. Alloyd Co.,
513 U.S. 561, 569 (1995), and “fit, if possible,
all parts into an harmonious whole,” FTC v.
Mandel Brothers, Inc., 359 U.S. 385, 389
(1959). Similarly, the meaning of one statute
may be affected by other Acts, particularly
where Congress has spoken subsequently and
more specifically to the topic at hand. See
United States v. Estate of Romani, 523 U.S.
517, 530–531 (1998); United States v. Fausto,
484 U.S. 439 (1988). In addition, we must be
guided to a degree by common sense as to the
manner in which Congress is likely to
delegate a policy decision of such economic
and political magnitude to an administrative
agency.
(parallel citations omitted). See also Padash v. I.N.S., 358
F.3d 1161, 1170 (9th Cir. 2004) (“We must analyze the
statutory provision in question in the context of the governing
statute as a whole, presuming congressional intent to create
a coherent regulatory scheme.”).
Applying this standard to NACARA § 203, I cannot find
that the statute is unambiguous. I agree with Judge Melloy’s
explanation in his dissent in Cuadra v. Gonzales, 417 F.3d
947 (8th Cir. 2005), that:
Here, that context includes the prior
suspension of deportation statute that
permitted the Attorney General to suspend
20 ARAGON-SALAZAR V. HOLDER
deportation for an applicant who “was and is
a person of good moral character.”
Immigration and Nationality Act of 1952,
Section 244(a), codified as 8 U.S.C. § 1254(a)
(1994); see, e.g., Chanmouny v. Ashcroft, 376
F.3d 810, 811 n. 1 (8th Cir.2004) (discussing
the change in available relief from suspension
of deportation to cancellation of removal
caused by the IIRIRA). Further, as with any
applicant for government benefits, we expect
applicants for immigration benefits to be
honest in their dealings with the government.
See, e.g., 18 U.S.C. § 1001 (prohibiting a
person from “knowingly and willfully . . .
[making] any materially false . . . statement
. . .”). Given the emphasis on honesty and
good moral character within all of the
pertinent statutes, it is unlikely that an
applicant’s behavior simply does not matter
during the period between the filing of his or
her application and the adjudication of his or
her claim.
417 F.3d at 952.
Of course, I recognize that the majority in Cuadra, as the
majority in this case, found that the statute was unambiguous.
Id. at 951. However, even assuming that interpretation is
reasonable, it is not the only reasonable interpretation. “A
statute or portion thereof is ambiguous when it is capable of
being understood by reasonably well-informed persons in
either of two or more senses.” Tahoe Regional Planning
Agency v. McKay, 769 F.2d 534, 537 (9th Cir. 1985) (quoting
Robert E. v. Justice Court of Reno Township, 664 P.2d 957,
ARAGON-SALAZAR V. HOLDER 21
959 (Nev.1983)); see also John v. United States, 247 F.3d
1032, 1042 (9th Cir. 2001) (“A statute is ambiguous,
however, only if it is subject to more than one reasonable
interpretation.”).
The Board of Immigration Appeals (“BIA”) has declined
to follow the Eighth Circuit’s decision in Cuadra. In In re
Garcia, 24 I. & N. Dec 179 (2007), the BIA, after noting the
contrary position in Cuadra, explained that “congressional
intent appears to favor treatment of applications for special
rule cancellation as ‘continuing applications.’”1 Id. at 181.
1
The BIA wrote:
Congress specifically exempted applications for special
rule cancellation from the “stop-time” rule of section
240A(d)(1) of the Act, which automatically cuts off the
accrual of continuous physical presence for cancellation
of removal applicants. See IIRIRA § 309(f)(1), added
by NACARA § 203(b), 111 Stat. at 2198. Because
Congress enacted the NACARA to ameliorate the
“harsher effects” of prior legislation, it would be
anomalous to construe “continuous physical presence”
for special rule cancellation of removal applicants in the
most restrictive manner. Masnauskas v. Gonzales, 432
F.3d 1067, 1070 (9th Cir. 2005). As we stated in
Matter of Ortega-Cabrera, supra, Congress was aware
of our longstanding practice of considering similar
applications as “continuing” in nature when it enacted
this legislation . Id. at 797 (noting that “aside from the
leftover language ‘such period’ in section
240A(b)(1)(B), there is no indication that Congress, in
creating the ‘stop-time’ rule, intended to alter the
well-established practice of treating the application as
a continuing one”). We find support for treating
22 ARAGON-SALAZAR V. HOLDER
It explained that in Matter of Ortega-Cabrera, 23 I. & N.
Dec. 793 (BIA 2005), it:
examined the coterminous concepts of good
moral character and continuous physical
presence and concluded that “in line with
long-standing practice, an application for
cancellation of removal remains a continuing
one for purposes of evaluating an alien’s
moral character.” In reaching that conclusion,
we noted that a contrary ruling could result in
a situation where an alien would be required
to be found ineligible for relief based on a
disqualifying bad act that occurred many
years in the past, whereas one who committed
a disqualifying act after the application was
filed (that is, during the hearing or shortly
before the hearing, depending on when the
application is deemed “filed,” as discussed
below) would not be so ineligible.
Garcia, 24 I. & N. Dec. 179 at 182.
The BIA has consistently maintained that because an
application for cancellation of removal is a continuing one for
purposes of good moral character, the period during which
good moral character must be established ends with the entry
applications for special rule cancellation as
“continuing” in the fact that Congress did not make the
“stop-time” rule applicable to such applications.
23 I. & N. Dec. 179 at 181–82.
ARAGON-SALAZAR V. HOLDER 23
of a final administrative order. See Matter of Isidro-
Zamorano, 25 I. & N. Dec. 829, 831 (BIA 2012).
Indeed, the Seventh Circuit has indicated that they agree
that an application for special rule cancellation is a continuing
application. In Duron-Ortiz v. Holder, 698 F.3d 523 (7th Cir.
2012), the petitioner argued the statute is not ambiguous and
urged the court “to read the statute in such a way that the
ten-year period to establish continuous physical presence and
good moral character cuts off when an alien is served an
NTA.” Id. at 527. The Seventh Circuit recognized that the
statute was susceptible to different readings and deferred to
the BIA’s reasonable interpretation in Matter of Ortega-
Cabrera that the period during which good moral character
must be established ends with the entry of a final
administrative decision. Id. at 527–28. The Seventh Circuit
noted that reading the statute as urged by the petitioner
“would result in precisely the untenable situation the Board
sought to avoid—namely, an applicant could commit a crime
or otherwise engage in disqualifying activity after being
served with an NTA, yet remain eligible for cancellation of
removal.”2 Id.
In addition, the majority’s determination that the statute
clearly states that a special rules application is not a
continuing application is inconsistent with our reasoning in
Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009). In
Castillo-Cruz, we applied the BIA’s holding in Matter of
Ortega-Cabrera that “the relevant ten year period for the
2
Also, the Sixth Circuit in Callejas v. Holder, 534 F. App’x. 386 (6th
Cir. 2013), noted but did not rule on, the BIA’s position that an applicant
for special rule cancellation of removal under NACARA accrues physical
presence until the issuance of a final administrative decision.
24 ARAGON-SALAZAR V. HOLDER
moral character determination is calculated backwards from
the date on which the cancellation of removal application is
finally resolved by the IJ or the BIA.” Id. at 1162.
In sum, NACARA § 203 is not unambiguous as to
whether an application for special rule cancellation is a
continuing application. Not only is the statute silent on this
issue, but when reviewed in the context of immigration
proceedings, this silence does not does reflect an
“unambiguously expressed intent of Congress.” Chevron,
467 U.S. at 843. Accordingly, this appeal should not be
decided on the first prong of Chevron.
B.
The arguments set forth by the BIA in Matter of Ortega-
Cabrera, and In re Garcia are clearly reasonable. It would
make little sense to hold that an applicant’s lies in the
application process may not be considered simply because he
had not lied for seven years. As Judge Melloy noted in his
dissent, “as with any applicant for government benefits, we
expect applicants for immigration benefits to be honest in
their dealings with the government.” Cuadra, 417 F.3d at
952. Similarly, both the Seventh Circuit and the BIA
describe as untenable, an interpretation pursuant to which “an
applicant could commit a crime or otherwise engage in
disqualifying activity after being served with an NTA, yet
remain eligible for cancellation of removal.” Duron-Ortiz,
698 F.3d at 528; see also Matter of Ortega-Cabrera, 23 I. &
N. Dec 793 at 796–97. Indeed, the majority does not really
deny that if the statute is ambiguous, the BIA’s interpretation
ARAGON-SALAZAR V. HOLDER 25
is “a permissible construction of the statute.”3 Chevron, 467
U.S. at 843.
Because I cannot find that § 203 reflects an
“unambiguously expressed intent of Congress” as to whether
special rule applications are continuing applications, I would
decide this petition on the second prong set forth in Chevron,
467 U.S. at 843. I would hold that the BIA’s consistent
position for the last seven years to be a “permissible
construction” of the statute. Accordingly, I respectfully
dissent.
3
The majority’s acceptance of the reasonableness of the BIA’s position
is implicit in its assertion that the majority’s “construction of NACARA
will not lead to the absurd result that an applicant who provides false
testimony following the filing of the application will necessarily obtain
relief,” Majority Opinion at 15 (emphasis added).