Sanchez v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO SANCHEZ, 
Petitioner, No. 04-75584
v.
 Agency No.
A077-832-827
ERIC H. HOLDER, JR., Attorney
General,* OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 15, 2008—Pasadena, California
Filed March 26, 2009
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Andrew J. Kleinfeld, Barry G. Silverman,
M. Margaret McKeown, Raymond C. Fisher,
Richard A. Paez, Consuelo M. Callahan and N. Randy Smith,
Circuit Judges.
Opinion by Judge Silverman;
Concurrence by Judge Paez;
Dissent by Judge Pregerson
*Eric H. Holder, Jr. is substituted for his predecessor, Michael B.
Mukasey, as Attorney General of the United States. Fed. R. App. P.
43(c)(2).
3625
3628 SANCHEZ v. HOLDER
COUNSEL
Frank P. Sprouls, Ricci & Sprouls, San Francisco, California,
for the petitioner.
Manuel Palau, Department of Justice, Washington, D.C., for
the respondent.
OPINION
SILVERMAN, Circuit Judge:
Mario Sanchez petitions for review of the Board of Immi-
gration Appeals’s affirmance of the Immigration Judge’s
decision denying him cancellation of removal because he
could not meet the “good moral character” requirement of 8
U.S.C. § 1229b(b)(1). Persons who have knowingly encour-
aged or assisted other aliens to enter the United States ille-
gally may not be found to have good moral character. 8
U.S.C. §§ 1101(f)(3), 1182(a)(6)(E). In the inadmissibility
context, such persons may obtain a waiver of inadmissibility
if the only person smuggled into the U.S. was their own
spouse, parent, son, or daughter. 8 U.S.C. § 1182(d)(11). We
took this case en banc to resolve whether the alien smuggling
inadmissibility waiver in § 1182(d)(11) applies to an applica-
tion for cancellation of removal. May an applicant for cancel-
lation of removal demonstrate good moral character
notwithstanding his participation in family-only smuggling?
SANCHEZ v. HOLDER 3629
We hold today that he cannot, overruling Moran v. Ashcroft,
395 F.3d 1089 (9th Cir. 2005).
I. Facts
Sanchez first entered the United States in April 1988 with-
out inspection, and resided here without lawful status. He has
left the United States only once since then, returning to Mex-
ico for three weeks in August 1993 to get married. After the
wedding, he paid a “coyote” $1,000 to smuggle himself and
his new wife into the United States.
In May 2000, the Immigration and Naturalization Service
charged Sanchez with removability as an alien found present
in the United States without being admitted or paroled. San-
chez conceded removability and requested cancellation of
removal pursuant to 8 U.S.C. § 1229b(b) on the ground that
removal would result in exceptional and extremely unusual
hardship to his U.S. citizen children and lawful permanent
resident father. After a hearing, the IJ found that Sanchez had
met the statutory qualifications for cancellation of removal in
all but one respect: he was barred from establishing good
moral character because he helped his wife enter the country
illegally in 1993. The IJ reasoned that Sanchez’s conduct
made him “a member of one or more of the classes of per-
sons” — in this case, a smuggler under 8 U.S.C.
§ 1182(a)(6)(E) — who by statute cannot be found to have
good moral character. See 8 U.S.C. § 1101(f)(3). In an
unpublished decision, the BIA affirmed the IJ’s decision. The
Board reasoned that Sanchez’s “smuggling activities d[id] not
fall within the exceptions to section 212(a)(6)(E)(i) of the Act
listed in clauses (ii) and (iii) of that provision.” See 8 U.S.C.
§ 1182(a)(6)(E)(ii), (iii).
Sanchez petitioned for review. When this case was before
the three-judge panel in Sanchez v. Mukasey, 521 F.3d 1106,
1110 (9th Cir. 2008), the panel granted the petition, holding
that the reasoning of our 2005 decision in Moran v. Ashcroft
3630 SANCHEZ v. HOLDER
controlled. In Moran, the court “translat[ed]” the “family
unity” waiver of inadmissibility in § 1182(d)(11), which is
referenced in § 1182(a)(6)(E)(iii) “into the language of can-
cellation of removal” to hold that an alien applying for cancel-
lation of removal “would be eligible for the waiver . . . if the
only individuals he had helped smuggle into the country were
his son and his spouse.” 395 F.3d at 1093-94. The panel in
this case noted the tension between Moran and Khourassany
v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000). Khourassany
held that an alien who had paid a smuggler to bring his wife
and child into the United States illegally from Mexico could
not meet the “good moral character” requirement for volun-
tary departure, and that “[n]o exceptions or other waivers to
the alien smuggler provision appl[ied].” Id.The three-judge panel in the case at bar held that under the
reasoning, albeit not the actual holding, of Moran, Sanchez
appeared to be eligible for the family unity waiver. Sanchez,
521 F.3d at 1110. Judge Wallace, writing separately, sug-
gested that the conflict between Moran and Khourassany
should be resolved by the en banc court, and that Moran “dis-
regard[ed] the plain meaning of the relevant statutes.” Id. at
1111, 1114 (Wallace, J., writing separately). It is in this con-
text that we reheard en banc the petition for review.
II. Analysis
In reviewing the agency’s construction of a statute under
Chevron, the first question we confront is “whether Congress
has directly spoken to the precise question at issue.” Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842 (1984). Because we find the meaning of the statutory text
to be clear, “that is the end of the matter,” and we need not
take advantage of agency expertise in construing the statute.
Id. at 842-43.
[1] “In attempting to determine the meaning of a statute,
‘we look first to the plain meaning . . . and give effect to that
SANCHEZ v. HOLDER 3631
meaning where fairly possible.’ ” Gomez-Lopez v. Ashcroft,
393 F.3d 882, 885 (9th Cir. 2005) (quoting Lagandaon v. Ash-
croft, 383 F.3d 983, 987 (9th Cir. 2004)). The statute govern-
ing cancellation of removal and adjustment of status for
certain nonpermanent residents like Sanchez, 8 U.S.C.
§ 1229b(b)(1) (2006), requires that the alien:
(A) ha[ve] been physically present in the United
States for a continuous period of not less than
10 years immediately preceding the date of
such application;
(B) ha[ve] been a person of good moral character
during such period;
(C) ha[ve] not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3)
. . . ; and
(D) establish[ ] that removal would result in excep-
tional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citi-
zen of the United States or an alien lawfully
admitted for permanent residence.
Here, the IJ found that Sanchez met each of the statutory
criteria except (B), requiring good moral character.
[2] The definition of “good moral character” is in 8 U.S.C.
§ 1101(f) (2006). It states:
No person shall be regarded as, or found to be, a per-
son of good moral character who, during the period
for which good moral character is required to be
established, is, or was —
...
3632 SANCHEZ v. HOLDER
(3) a member of one of more of the classes of per-
sons, whether inadmissible or not, described in para-
graphs (2)(D), (6)(E), and (10)(A) of section 1182(a)
of this title; or subparagraphs (A) and (B) of section
1182(a)(2) of this title and subparagraph (C) thereof
of such section (except as such paragraph relates to
a single offense of simple possession of 30 grams or
less of marihuana), if the offense described therein,
for which such person was convicted or of which he
admits the commission, was committed during such
period . . . .
8 U.S.C. § 1101(f)(3) (2006) (emphasis added). 8 U.S.C.
§ 1182(a)(6)(E)(i) in turn defines “[s]mugglers” — aliens who
have at any time “knowingly . . . encouraged, induced,
assisted, abetted, or aided any other alien to enter or to try to
enter the United States in violation of law.”
[3] Sanchez is a member of one of the “classes of persons”
that cannot establish good moral character because he admit-
ted to aiding his wife to enter the United States illegally by
paying a coyote to smuggle her across the border. Thus, under
the terms of the good moral character definition, he cannot
establish good moral character, whether he is inadmissible or
not. 8 U.S.C. § 1101(f)(3). Sanchez now argues that
§ 1182(d)(11), which provides a waiver of inadmissibility,
should nonetheless permit him to establish good moral char-
acter because he smuggled only his spouse into the United
States. That section states:
The Attorney General may, in his discretion for
humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest, waive
application of clause (i) of subsection (a)(6)(E) in the
case of any alien lawfully admitted for permanent
residence who temporarily proceeded abroad volun-
tarily and not under an order of removal, and who is
otherwise admissible to the United States as a return-
SANCHEZ v. HOLDER 3633
ing resident under section 1181(b) of this title and in
the case of an alien seeking admission or adjustment
of status as an immediate relative or immigrant
under section 1153(a) of this title . . . , if the alien
has encouraged, induced, assisted, abetted, or aided
only an individual who at the time of such action
was the alien’s spouse, parent, son, or daughter (and
no other individual) to enter the United States in vio-
lation of law.
[4] The problem with Sanchez’s argument is that the family
unity waiver of inadmissibility is irrelevant to whether an
alien smuggler can establish good moral character under
§ 1101(f). Since Sanchez falls within one of the “classes of
persons” that cannot establish good moral character, the plain
terms of the good moral character statute make his admissibil-
ity status irrelevant. Section 1101(f) specifically says: “[n]o
person . . . who . . . is . . . a member of one or more of the
classes of persons, whether inadmissible or not,” may estab-
lish good moral character” (emphasis added). Thus, the
waiver of inadmissibility for lawful permanent residents and
aliens seeking admission or adjustment of status as an imme-
diate relative or immigrant under § 1153 who have smuggled
only immediate family members has no bearing on whether
an alien can establish good moral character. In other words,
§ 1182(d)(11) authorizes the Attorney General to waive inad-
missibility if an alien has only smuggled immediate family
members, but does not authorize the Attorney General to
waive the “alien smuggling” bar to establishing good moral
character for purposes of cancellation of removal. A statute
giving the Attorney General discretion to grant relief from
inadmissibility does not give the Attorney General discretion
to grant relief from removal. See Abebe v. Mukasey, No. 05-
76201, 2009 WL 50120, at *2 (9th Cir. Jan. 5, 2009) (en
banc) (holding, in the equal protection context, that Con-
gress’s treating entering aliens differently from illegally pres-
ent aliens passes rational basis review). Harmonizing
§ 1101(f) with § 1182(a)(6)(E), including the waiver autho-
3634 SANCHEZ v. HOLDER
rized by § 1182(a)(6)(E)(iii), we now hold that alien smug-
glers are one of the classes of persons that cannot be found to
have good moral character for the purposes of cancellation of
removal, whether they are inadmissible or not.
[5] This plain reading of 8 U.S.C. §§ 1101(f) and
1182(a)(6)(E) is consistent with other expressions of congres-
sional intentions in this area. Congress has demonstrated that
it knows how to create an exception to the “classes of per-
sons” definitions within the text of § 1101(f)(3) itself when it
wants to. Section 1101(f)(3) bars most “[c]ontrolled substance
traffickers” from establishing good moral character, see 8
U.S.C. § 1182(a)(2)(C), but expressly exempts persons that
have committed “a single offense of simple possession of 30
grams or less of marihuana.” If Congress had intended to
exclude family-only alien smugglers from the “class[ ] of per-
sons” that cannot be found to have good moral character for
cancellation of removal, it could have included a provision
similar to the exception for controlled substance traffickers.
See United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.
1999) (presuming that Congress acts purposefully when it
includes an exception in one section of a statute but omits it
in another).
Moreover, Congress has shown its willingness to override
clearly and explicitly the basic definition of good moral char-
acter when it so desires. See 8 U.S.C. § 1229b(b)(2)(C)
(“Notwithstanding section 1101(f) of this title, an act or con-
viction that does not bar the Attorney General from granting
relief under this paragraph by reason of subparagraph (A)(iv)
shall not bar the Attorney General from finding the alien to
be of good moral character . . . .”). Congress’s failure to
create an exception or waiver to the alien smuggling bar to
showing good moral character in the removal context supports
the inference that Congress intended no such exception. See
Fiorillo, 186 F.3d at 1153.
We note that, even if the family unity inadmissibility
waiver did apply in the cancellation of removal context, San-
SANCHEZ v. HOLDER 3635
chez would not qualify for the waiver under the plain lan-
guage of its text. The § 1182(d)(11) waiver may only apply
“in the case of any alien lawfully admitted for permanent resi-
dence” who temporarily proceeded abroad, and is not subject
to an order of removal and is otherwise admissible, and “in
the case of an alien seeking admission or adjustment of status
as an immediate relative or immigrant under section 1153(a)
of this title.” Sanchez does not fall within either category. His
argument that the family unity waiver should be read to apply
to three categories of persons — lawful permanent residents,
aliens seeking admission, and aliens seeking adjustment of
status as an immediate relative or immigrant under § 1153(a)
— is belied by the statutory text. Congress made clear its
intent to permit the waiver for two categories of persons —
(1) lawful permanent residents; and (2) those aliens seeking
admission or adjustment of status under § 1153(a) (i.e., those
seeking a visa as a family-sponsored immigrant) — when it
used the phrase “in the case of” before each of the two catego-
ries. To receive a waiver under the second clause, an alien
must be using § 1153(a) to seek either admission or adjust-
ment of status. Sanchez’s contention that any alien seeking
admission may qualify for the waiver, regardless of whether
he proceeds under § 1153(a) or not, would open the waiver to
virtually any alien smuggler, a result that would be contrary
both to the statutory text and to the intent that Congress has
demonstrated elsewhere in the statute.
[6] A plain reading of § 1182(d)(11) manifests Congress’s
intent to limit alien smuggling waivers to certain defined
classes of persons. The waiver provision at issue here, 8
U.S.C. § 1182(d)(11), only applies to “alien[s] lawfully
admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of removal, and
who [are] otherwise admissible,” and aliens seeking “admis-
sion or adjustment of status as an immediate relative or immi-
grant under section 1153(a).” A similar family unity waiver
governing persons removable as alien smugglers applies also
only to persons “lawfully admitted for permanent residence.”
3636 SANCHEZ v. HOLDER
8 U.S.C. § 1227(a)(1)(E)(iii) (2008). It is not irrational for
Congress to provide family unity waivers only to persons who
have complied with immigration laws by becoming lawful
permanent residents or to those seeking admission or adjust-
ment of status by applying for a visa, and not to aliens who
entered without inspection and then attempted to smuggle oth-
ers in after them. See Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(noting Congress’s “broad power” over immigration and natu-
ralization). Applying the plain language of §§ 1229b and
1101(f) would not lead to a “patently absurd” result, nor an
unintended result. See Amalgamated Transit Union Local
1309 v. Laidlaw Transit Servs., Inc., 448 F.3d 1092, 1098 (9th
Cir. 2006).
[7] We conclude that Moran’s “translation” of
§ 1182(d)(11) into the cancellation of removal context is at
odds with the plain meaning of §§ 1229b(b), 1101(f), and
1182(a)(6)(E). The family unity waiver of inadmissibility
contained in § 1182(d)(11) does not permit petitioner to dem-
onstrate good moral character.1 Accordingly, the petition for
review is DENIED.
PAEZ, Circuit Judge, concurring:
I agree with the majority that Sanchez is ineligible for the
family unity waiver here because he is neither an “alien law-
1
In his brief on appeal, Sanchez challenged whether substantial evi-
dence supported the IJ’s decision that he was an “alien smuggler.” San-
chez asserted that, because he was a principal and a co-defendant (with his
wife) in the crime of illegal entry, he could not be a smuggler, as he could
not aid and abet his own crime. After review of the record, we find that
substantial evidence supports the IJ’s decision. Counsel also waived this
argument at oral argument. Sanchez’s further argument that his admission
of alien smuggling could not be used against him because he had not been
advised of the elements of the crime of alien smuggling lacks merit. See
Urzua Covarrubias v. Gonzalez, 487 F.3d 742, 749 (9th Cir. 2007).
SANCHEZ v. HOLDER 3637
fully admitted for permanent residence who temporarily pro-
ceeded abroad,” nor “an alien seeking admission or
adjustment of status as an immediate relative or immigrant
under [8 U.S.C. § 1153(a)].” 8 U.S.C. § 1182(d)(11). I there-
fore concur in the result.
I am not persuaded, however, that the statutory language
makes “plain” that the 8 U.S.C. § 1182(a)(6)(E) waivers are
inapplicable to an evaluation of moral character. Mj. Opin. at
3634. The moral character provision states that “[n]o person
shall be . . . found to be[ ] a person of good moral character”
if they are or were a member of certain “classes of persons .
. . described in” § 1182(a), including those described in para-
graph (6)(E). 8 U.S.C. § 1101(f)(3). Paragraph (6)(E) states:
(E) Smugglers
(i) In general
Any alien who at any time knowingly
has encouraged, induced, assisted, abet-
ted, or aided any other alien to enter or
to try to enter the United States in viola-
tion of law is inadmissible.
(ii) Special rule in the case of family reuni-
fication
Clause (i) shall not apply in the case of
alien who is an eligible immigrant (as
defined in section 301(b)(1) of the Immi-
gration Act of 1990), was physically
present in the United States on May 5,
1988, and is seeking admission as an
immediate relative or under section
1153(a)(2) of this title (including under
section 112 of the Immigration Act of
1990) or benefits under section 301(a) of
3638 SANCHEZ v. HOLDER
the Immigration Act of 1990 if the alien,
before May 5, 1988, has encouraged,
induced, assisted, abetted, or aided only
the alien’s spouse, parent, son, or daugh-
ter (and no other individual) to enter the
United States in violation of law.
(iii) Waiver authorized
For provision authorizing waiver of
clause (i), see subsection (d)(11) of this
section.
8 U.S.C. § 1182(a)(6)(E).
At issue here is thus how the “class[ ] of persons . . .
described in paragraph[ ] (6)(E)” is defined. The majority
today finds it clear that this class is described solely in sub-
paragraph (6)(E)(i), emphasizing that the moral character pro-
vision bars those “whether inadmissible or not” who fall
within the classes listed in § 1101(f)(3).1 However, I find it at
least equally plausible that the relevant class is that described
by (6)(E) in its entirety — both the general definition offered
in (6)(E)(i) and the exceptions to that definition provided by
(6)(E)(ii) and (iii). This construction comports with the plain
language of the moral character provision, which points to the
class described in (6)(E) rather than that described in
1
The “whether inadmissible or not” language sheds little light on the
question of whether the exceptions apply. As the BIA has observed, that
language was likely inserted to clarify that § 1101(f) and § 1182, an inad-
missibility statute, are applicable to aliens in other proceedings. See In re
M-, 7 I. & N. Dec. 147, 150-51 (BIA 1956) (observing that the predeces-
sor phrase “whether excludable or not” was inserted “because it was con-
sidered necessary in order to guard against a possible interpretation that
section [1101(f)(3)] did not relate to aliens applying for voluntary depar-
ture and suspension of deportation”); In re Garcia-Hernandez, 23 I. & N.
Dec. 590, 593 n.2 (BIA 2003) (“whether inadmissible or not” phrase is
meant to assure applicability beyond the admissibility context).
SANCHEZ v. HOLDER 3639
(6)(E)(i). Moreover, this is how the BIA has interpreted the
moral character provision for over fifty years. See In re M-,
7 I. & N. Dec. 147, 149-51 (BIA 1956); In re Garcia-
Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003) (noting that
“the ‘description’ of the category . . . also includes the excep-
tion”). Because I find the statute ambiguous as to whether the
exceptions are included within the description of the class, I
would defer to the BIA’s reasonable answer that they are so
included. See Chevron U.S.A., Inc. v. Natural Res. Def. Coun-
cil Inc., 467 U.S. 837, 843 (1984). I would therefore hold that
the 6(E)(iii) waiver is applicable to a determination of good
moral character.
I also write separately to note that while the statutory
scheme as interpreted here may not be “patently absurd,” mj.
opin. at 3636, it does appear “antithetical to Congress’s stated
goal of promoting family unification in immigration law.”
Moran v. Ashcroft, 395 F.3d 1089, 1095 (9th Cir. 2005)
(Fletcher, J., concurring). In justifying the availability of the
waiver to those applying for admission but not to those apply-
ing for cancellation of removal, the majority asserts that it is
rational for Congress to draw a distinction between those who
have entered the United States unlawfully and those who,
despite helping others to enter illegally, are themselves seek-
ing admission through the proper legal channels. Mj. opin. at
3636. This may be true, but it is harder to explain the distinc-
tion between those who have entered the United States ille-
gally and those who have both entered the United States
illegally and have helped their “spouse, parent, son, or daugh-
ter” to do so. Under current law, a person who has helped
only himself is eligible for humanitarian relief from deporta-
tion to prevent “exceptional and extremely unusual hardship
to the alien’s [lawfully present] spouse, parent, or child.” 8
U.S.C. § 1229b(b)(1). However, a person who has also helped
an immediate family member enter the country is ineligible
for such relief because, under the law as interpreted here, he
necessarily lacks “good moral character.” In short, a person
who leaves his family behind as he seeks better opportunities
3640 SANCHEZ v. HOLDER
in the United States may have good moral character, but a
person who attempts to bring a spouse or child along may not.
This not only makes little sense in the context of a family
unity provision, but “grossly distorts the meaning of” the term
“good moral character.” Moran, 395 F.3d at 1095 (Fletcher,
J., concurring); see also Pregerson dissent at 3644.
Fortunately, as the majority notes, Congress “knows how to
create an exception” to the classes of persons deemed neces-
sarily lacking in good moral character. Mj. opin. at 3634. A
clear pronouncement by Congress that the family unity policy
behind the “family smuggling” exception in the admissibility
context applies equally to moral character and cancellation of
removal determinations would ensure that people like Mr.
Sanchez — by all accounts a model employee, son, husband,
and father to three American children, see Pregerson dissent
at 3640-41, 3644 — would not be summarily deported for
endeavoring to keep their families together while seeking a
better life.
PREGERSON, Circuit Judge, dissenting:
This is a story about an industrious young man, Mario San-
chez (“Sanchez”), who was born into poverty in La Palma,
Mexico, and forced by circumstances to drop out of ninth
grade to help support his mother, father, and five siblings.
Sanchez worked at a restaurant as a dishwasher and a preparer
of food, and then at a warehouse. In April 1988, when San-
chez was twenty-two years old, he entered the United States
without inspection in search of a better life. He found a job
in Oakland, California operating the large metal press
machine at a scrap metal company, worked hard, and saved
his money. Five years later he took three weeks off work and
returned to his hometown in Mexico to marry his sweetheart.
He paid a “coyote” $1,000 to help him and his bride Ana
cross the border.
SANCHEZ v. HOLDER 3641
Mario and Ana Sanchez established a home in Oakland in
1993. They have three U.S. born children, Oswaldo, Isidoro,
and Mario Jr., now aged six, twelve, and fourteen years
respectively. At the time the IJ made his decision, the children
were nine months, six years, and nine years old. The IJ noted
that Isidoro and Mario Jr. were “doing quite well . . . in
school,” and that Mario Jr. was enrolled in his school’s
“gifted and talented children” program. Sanchez also testified
that Mario Jr. and Isidoro had earned medals in school mathe-
matics competitions.
Both Mario and Ana Sanchez work full-time. Together they
earn an annual income of around $40,000. Sanchez has a
steady and consistent employment history. For thirteen years
Sanchez worked for the scrap metal company in Oakland. In
2001, Sanchez found a better job as a forklift operator.
Sanchez paid his income taxes every year from 1988 until
his marriage in 1993. Since they were married, the Sanchezes
have paid their income taxes every year. They provide their
family with medical insurance. They live in a duplex that they
own jointly with another relative. A letter from Sanchez’s par-
ish priest at St. Elizabeth Parish in Oakland tells us that San-
chez “has attended our Church services since year 1988,” and
that Sanchez “is a good and hardworking person.” Although
Sanchez pled guilty to a DUI in 1991, two years before he
was married, he has not been arrested since then. For the past
sixteen years, the Sanchezes have been working hard to pro-
vide their three American-born children with a good life in the
United States. They also take care of Sanchez’s ailing, dia-
betic father, a lawful permanent resident, who lives with
them.
In 2000, Sanchez wished to legalize his status in the United
States, so he sought help from two immigration attorneys,
John Ricci (“Ricci”) and Frank Sprouls (“Sprouls”). These
attorneys advised Sanchez to first file an application for asy-
3642 SANCHEZ v. HOLDER
lum on the basis of economic discrimination.1 Ricci appeared
before the IJ in June of 2000 and withdrew the baseless asy-
lum application prepared by his law firm. Ricci told the IJ that
he wished to file an application for cancellation of removal.
The IJ then continued the matter.
Sadly, like many other unsophisticated petitioners, Sanchez
hired attorneys who have poor records before the state bar and
our court. California State Bar records cited Ricci twice for
“Discipline, probation; no actual susp[ension]” and once for
“Public reproval with/duties.” Sprouls, who represented San-
chez before the BIA and our court, has a record of misconduct
before the Ninth Circuit. In 2005, Sprouls “was on probation
for numerous ethical violations in immigration matters.” See
Granados v. Keisler, No. 04-76322, 2007 WL 3230298, at *2
(9th Cir. Oct. 31, 2007) (citing In re Sprouls, No. 05-80025
(9th Cir. Sept. 23, 2005)). In his February 2005 investigation
of Sprouls, the Ninth Circuit Appellate Commissioner found
that Sprouls violated his duties as an attorney by engaging in
many instances of “deficient conduct.”2 Report and Recom-
mendation of the Appellate Commissioner, adopted in In re
Sprouls, No. 05-80025 (9th Cir. Sept. 23, 2005). In a number
of cases the Appellate Commissioner determined that
1
Sanchez’s application for asylum, prepared by his immigration attor-
neys, stated the basis for his claim as: “I have lived in the United States
for over ten years. I would be subject to discrimination, harassment and
economic deprivation by the ruling powers. I come from a poor back-
ground, along with my family I would be denied economic opportunities.”
2
The Appellate Commissioner found that Sprouls’s deficient conduct
included “filing and knowingly maintaining a frivolous action,” “negli-
gently failing to file a response to [a] motion,” “filing frivolous and mis-
leading brief[s],” “negligent[ly] fail[ing] to respond to the court’s orders,”
“negligently failing to file an opposition to the respondent’s motion to dis-
miss,” “fail[ing] to act diligently on behalf of his client,” “fail[ing] to
respond to court orders and fail[ing] to prosecute the petitions,” “fil[ing]
late briefs in seven petitions for review,” and filing five “[i]dentical
[d]efective [b]riefs” on behalf of different clients. Appellate Commission-
er’s Report and Recommendation, adopted in In re Sprouls, No. 05-80025
(9th Cir. Sept. 23, 2005).
SANCHEZ v. HOLDER 3643
Sprouls’s deficient conduct “had the potential to injure his cli-
ents.” Id. Furthermore, in 2007 our court found that Sprouls
provided ineffective assistance of counsel to another client in
Granados v. Keisler.3 See Granados, 2007 WL 3230298, at
*2.
In the case before us, the IJ found that Sanchez met all the
requirements necessary to grant his petition for cancellation of
removal except one: “Unfortunately [Sanchez] is barred from
claiming good moral character,” because “he has paid a coy-
ote to bring his wife into the United States illegally.”4 The IJ
therefore denied Sanchez’s application for cancellation of
removal, and the BIA affirmed.
On appeal to this court, we held that under the reasoning of
Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), Sanchez
was entitled to cancellation of removal because Congress
intended for the family unity waiver to apply in circumstances
where an alien has helped “smuggle” his spouse into the
country. Thus, the majority held that Sanchez possessed the
requisite “good moral character,” and granted his cancellation
of removal application. I agree with the reasoning of Moran
and the holding of the three-judge panel in this case.
Instead of following the logic of Moran, the majority strug-
3
In Granados we held that “[t]he deficient performance of Sprouls in
the proceedings to reopen Granados’s case before the IJ and the BIA is
plain on the face of the administrative record and rises to the level of a due
process violation because Granados was prevented from reasonably pre-
senting his case.” Granados, 2007 WL 3230298, at *2. “Sprouls presented
an incomplete and grammatically flawed motion to reopen, failed to com-
ply with any of the Losada requirements for an IAC claim, failed to inves-
tigate or elicit material facts relevant to Granados’s individual case, failed
to provide a translated version of the motion to reopen to Granados, and
on his own initiative included false statements of fact.” Id.4
The IJ also noted that, “[t]he court need not reach into the issue of dis-
cretion. But if I do, then I will find that I will exercise my discretion in
[Sanchez’s] favor.”
3644 SANCHEZ v. HOLDER
gles through a labyrinth of complex statutory interpretation to
conclude that Congress intended that people like Sanchez be
deemed to have “bad moral character.” With simple common
sense, though, one should easily conclude that the opposite is
true. Indeed, if we tried to explain the majority’s complex
interpretation of Congress’s statutes to members of Congress
themselves, I submit that many would be amused.
How can we possibly say members of Congress intended
that a man who married his hometown sweetheart, brought
her here for a better life, worked hard for twenty-one years to
provide for his three children, bought a home, attended church
regularly, and cared for his ailing father is a man of bad moral
character? Most would say, instead, that this is the story of a
good man making every attempt for himself, his wife, and his
three American citizen children to live the American dream.
In our nation’s history, millions of immigrants have done the
same. How can we condemn this behavior as “bad moral
character” after honoring this dream since the birth of our
nation?
Instead, I find the reasoning of Moran v. Ashcroft to be
much more compelling. Moran held that a petitioner for can-
cellation of removal who assisted another alien to enter this
country illegally generally does not meet the good moral char-
acter requirement for cancellation of removal. Moran, 395
F.3d at 1093. But we further held that under the family unity
waiver5 “the statutory scheme governing the requirements for
5
The text of the family unity waiver reads as follows:
The attorney general may, in his discretion for humanitarian pur-
poses, to assure family unity, or when it is otherwise in the public
interest, waive application of clause (i) of subsection (a)(6)(E) of
this section in the case of any alien lawfully admitted for perma-
nent residence who temporarily proceeded abroad voluntarily and
not under an order of removal, and who is otherwise admissible
to the United States as a returning resident under section 1181(b)
of this title and in the case of an alien seeking admission or
SANCHEZ v. HOLDER 3645
cancellation of removal preserves eligibility for individuals
whose involvement in ‘alien smuggling’ is limited to helping
their own family members, including spouses and children.”
Id. at 1090 (emphasis added).
The Moran court found that because the alien-smuggling
provision and its exceptions6 are written with regards to “in-
admissibility” rather than “cancellation of removal,” courts
must translate the alien-smuggling inadmissibility provision
and its exceptions into the language of cancellation of
removal. Id. at 1093. The Moran court explained that such a
translation “requires that we replace references to admissibil-
ity, applications for admission, and adjustment of status with
references to cancellation of removal.” Id. (citing Gonzalez-
Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004)).
According to Moran, the family unity waiver rule in the con-
text of cancellation of removal would therefore read:
The alien . . . does not fail the good moral character
requirement for cancellation of removal where the
Attorney General exercises discretion to waive the
applicability of [the alien-smuggling provision].
Such discretion may be exercised “for humanitarian
purposes, to assure family unity, or when it is other-
wise in the public interest,” to waive the applicabil-
ity of the alien-smuggling provision to the good
moral character determination of an applicant for
adjustment of status as an immediate relative or immigrant under
section 1153(a) of this title (other than paragraph (4) thereof), if
the alien has encouraged, induced, assisted, abetted, or aided only
an individual who at the time of such action was the alien’s
spouse, parent, son, or daughter (and no other individual) to enter
the United States in violation of law.
8 U.S.C. § 1182(d)(11).
6
The alien-smuggling provision is found in 8 U.S.C. § 1182(a)(6)(E)(i),
and the exceptions are found in 8 U.S.C. § 1182(a)(6)(E)(ii) and (iii), and
§ 1182(d)(11).
3646 SANCHEZ v. HOLDER
cancellation of removal who “has encouraged,
induced, assisted, abetted, or aided only an individ-
ual who at the time of such action was the alien’s
spouse, parent, son, or daughter (and no other indi-
vidual) to enter the United States in violation of
law.”
Id. at 1094 (quoting 8 U.S.C. § 1182(d)(11) (cross-referenced
by 8 U.S.C. § 1182(a)(6)(E)(iii))). This makes perfect sense.
Indeed, by establishing a “family unity” waiver, Congress
has shown that it wants to help immigrant men and women
maintain their marriages and families. Congress has further
demonstrated in the specific context of cancellation of
removal that the family unity waiver applies. When stating the
requirements of “cancellation of removal,” Congress included
the definition of “good moral character.”7 In the definition of
“good moral character,” Congress referred to the alien-
smuggling provision and its exceptions, including the family
unity waiver.8 Why should we disregard the explicit intent of
Congress, as the majority asks us to? The majority finds an
exception barring the family unity waiver in the case of can-
cellation of removal, but Congress has never stated that such
an exception exists.
In short, I agree with the Moran court’s reasoning and the
holding of the three-judge panel’s opinion that the family
unity waiver applies to Sanchez, and that we should grant his
application for cancellation of removal. Accordingly, I dis-
sent.
7
When defining the requirements for cancellation of removal in 8
U.S.C. § 1229b, Congress expressly included the good moral character
definition found in 8 U.S.C. § 1101(f)(3).
8
See supra note 6.