Catherine Torres v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE LOPENA TORRES, No. 13-70653
Petitioner,
Agency No.
v. A087-957-047
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted En Banc May 28, 2020 *
San Francisco, California
Filed September 24, 2020
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw, Ronald M. Gould, Johnnie B. Rawlinson,
Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S.
Ikuta, Paul J. Watford, Daniel A. Bress, Danielle J.
Hunsaker and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Wardlaw
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 TORRES V. BARR
SUMMARY **
Immigration
Granting in part and denying in part Catherine Torres’s
petition for review of a decision of the Board of Immigration
Appeals, and remanding, the en banc court overruled Minto
v. Sessions, 854 F.3d 619 (9th Cir. 2017), and held that
Torres, who was present in the Commonwealth of the
Northern Mariana Islands (CNMI) when the Immigration
and Nationality Act (INA) became applicable there, was not
removable under 8 U.S.C. § 1182(a)(7)(a)(i), which applies
to noncitizens who do not possess a valid entry document “at
the time of application for admission.”
Under the 1976 Covenant to Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the
United States of America, certain CNMI citizens and
residents, as well as anyone born on CNMI soil, became
United States citizens. However, the CNMI government
retained control over immigration into the territory,
permitting large numbers of temporary “guest workers” to
work there. In 2008, Congress enacted the Consolidated
Natural Resources Act (CNRA), which imposed the INA
within the CNMI effective November 28, 2009.
Under the INA, a noncitizen present in the United States
without being admitted or paroled is inadmissible under
8 U.S.C. § 1182(a)(6)(A)(i). Because the sudden imposition
of the INA could have rendered thousands of guest workers
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TORRES V. BARR 3
and others removable under this provision overnight,
Congress provided a two-year reprieve in which any alien
“lawfully present in the Commonwealth” on the effective
date could not be removed under § 1182(a)(6). However,
beginning in 2010, the federal government began charging
some CNMI residents as removable under § 1182(a)(7), a
provision not covered by the two-year reprieve.
Torres, a native of the Philippines who entered the CNMI
lawfully as a guest worker in 1997, was placed in removal
proceedings in 2010. She was charged as removable under
§ 1182(a)(6) and § 1182(a)(7). Torres argued that she fell
outside the scope of § 1182(a)(7) on the grounds that she had
lawfully entered the CNMI before the INA went into effect
and had never submitted an application for admission into
the United States. The immigration judge and the BIA
rejected this argument, and a three-judge panel of this court
agreed, concluding it was bound by Minto, which had held
that Minto, who was similarly situated to Torres, was
inadmissible under § 1182(a)(7). The Minto court reasoned
that, because he was present in the United States on the
CNRA’s effective date without having been admitted or
paroled, he was deemed to be an “applicant for admission,”
and therefore should be deemed to have made an application
for admission.
Overruling Minto, the en banc court held that the phrase
“at the time of application for admission” in § 1182(a)(7)
refers to the particular point in time when a noncitizen
submits an application to physically enter the United States,
and therefore, does not apply to noncitizens such as Torres.
In so concluding, the en banc court examined the INA’s
definition of “admission” and this court’s understanding of
the term “entry.” Further, the en banc court explained that,
by using the phrase “time of application for admission”
4 TORRES V. BARR
solely in connection with documents required to lawfully
cross the United States border, § 1182(a)(7) signals that the
time of application for admission is when a noncitizen seeks
permission to physically enter United States territory. The
en banc court noted that this construction is supported by the
statutory context and aligns with the interpretation of the
Fifth and Eleventh Circuits.
The en banc court further explained that Minto’s
interpretation: 1) failed to understand that the phrase
“applicant for admission” is a term of art denoting a
particular legal status, as the history of its enactment makes
clear; 2) entirely disregarded a precedential decision of the
BIA that squarely held to the contrary; and 3) rendered
superfluous key provisions of the immigration laws.
The en banc court remanded to the BIA to decide
whether Torres was removable under § 1182(a)(6),
instructing it to address whether she was “lawfully present”
in the CNMI under CNMI law, and thus not removable under
§ 1182(a)(6).
The en banc court also concluded that Torres is ineligible
for cancellation of removal due to her failure to establish ten
years of continuous presence in the United States, and
concluded that it lacked jurisdiction to consider her request
to remand the case to the agency to consider her application
for “parole-in place.”
TORRES V. BARR 5
COUNSEL
Stephen Carl Woodruff (argued), Saipan, Northern Mariana
Islands; Janet H. King, King Law Offices, Saipan, Northern
Mariana Islands; Daniel S. Volchok, Alex Hemmer, and
Rebecca M. Lee, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington, D.C.; for Petitioner.
Lisa Damiano, Attorney; William C. Minick, Trial Attorney;
Aimee J. Carmichael, Senior Litigation Counsel; John W.
Blakeley, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
Charles Roth, National Immigrant Justice Center, Chicago,
Illinois, for Amici Curiae Organizations Assisting Survivors
of Domestic Violence.
OPINION
WARDLAW, Circuit Judge:
The Immigration and Nationality Act (INA or “the Act”)
suddenly applied to the Commonwealth of the Northern
Mariana Islands (CNMI) on November 28, 2009. By that
point, Catherine Lopena Torres had been lawfully living and
working in the CNMI for over a decade. Though she had
never applied to enter the United States, she abruptly found
herself within the westernmost border of our country.
Nevertheless, the Board of Immigration Appeals (BIA)
ordered her removed on the ground that she did not possess
a valid entry document “at the time of [her] application for
6 TORRES V. BARR
admission” into the United States, in violation of 8 U.S.C.
§ 1182(a)(7)(a)(i)(I) (hereinafter “§ 1182(a)(7)”).
A three-judge panel of this court, in a now-withdrawn
opinion, Torres v. Barr, 925 F.3d 1360 (9th Cir. 2019),
denied Torres’s petition for review under our court’s
decision in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017).
Minto had held that a respondent “present in the CNMI
without admission or parole on November 28, 2009” who is
placed in removal proceedings is “‘deemed’ to be ‘an
applicant for admission’” and removable under § 1182(a)(7)
for not possessing a valid entry document at the time of
application for admission. Id. at 624–25. However, the
panel also joined a concurrence by Judge Berzon, which
argued that Minto was wrongly decided because its atextual
interpretation of the INA had rendered superfluous key
provisions of our immigration laws. 925 F.3d at 1363–64.
A majority of the non-recused active judges of our court
voted to rehear this case en banc to reconsider Minto’s
construction of § 1182(a)(7).
I.
A.
Around 2000 B.C.E., the ancestors of the Chamorros
traveled by canoe from Southeast Asia to an archipelago
situated roughly equidistant from what we now call Japan,
Papua New Guinea, and the Philippines. About the CNMI,
Office of the Governor of the Commonwealth of the
Northern Mariana Islands. 1 Three and a half millennia later,
in 1521, Portuguese explorer Ferdinand Magellan landed on
1
https://tinyurl.com/yyf3sa6h (last visited July 23, 2020).
TORRES V. BARR 7
one of these islands, marking the first known encounter
between Europeans and the Chamorros. Id.
A little more than a century after that, Queen Maria Ana
of Spain, for whom the islands are now named, financed an
expedition to establish a colony on the islands. Id.; Mariana
Islands, Encyclopedia Britannica. 2 The process of
colonization was a brutal one in which many islanders were
felled by a deadly combination of violence and foreign
disease. Northern Mariana Islands, Encyclopedia
3
Britannica. For the next three centuries, the Spanish ruled
the Marianas. See United States ex rel. Richards v. De Leon
Guerrero, 4 F.3d 749, 751 (9th Cir. 1993). At the conclusion
of the Spanish-American War of 1898, however, the
Marianas came under German, and then Japanese, rule. Id.
After World War II, the United Nations appointed the
United States to administer the island territory through a
Trusteeship Agreement, and the relationship between the
United States and the Marianas gradually grew more
intertwined. See generally Trusteeship Agreement for the
Former Japanese Mandated Islands, July 18, 1947, 61 Stat.
3301, T.I.A.S. No. 1665. In 1976, the United States
dissolved this Trusteeship Agreement and replaced it with
the Covenant to Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States of
America (“the Covenant”). Joint Resolution of March 24,
1976, Pub. L. No. 94-241, 90 Stat. 263. 4 After the Covenant
2
https://tinyurl.com/y6jwrrzg (last visited July 23, 2020).
3
https://tinyurl.com/yxgslc6u (last visited August 26, 2020).
4
The Covenant came into full effect in 1986, at which point
President Reagan issued a presidential proclamation terminating the
Trusteeship Agreement. Proclamation No. 5564, 51 Fed. Reg. 40,399
8 TORRES V. BARR
went into effect, certain CNMI citizens and residents, as well
as anyone born on CNMI soil, became citizens of the United
States. See id. art. III; Sabangan v. Powell, 375 F.3d 818,
819–21 (9th Cir. 2004).
At the time, there were roughly 16,000 people living in
the CNMI. S. Rep. No. 110-324, at 2 (2008). The CNMI
government retained nearly exclusive control over
immigration to the territory. See Covenant § 503(a), 90 Stat.
at 268. Although Congress initially envisioned that United
States immigration laws would operate within the CNMI
within a few years, the CNMI continued to administer its
own immigration laws for more than three decades. S. Rep.
No. 110-324, at 2–4. During this time, the CNMI
government permitted large numbers of temporary “guest
workers” to work in the island territory, primarily in the
garment sector and other private industries. S. Rep. No. 110-
324, at 2–4; see also S. Rep. No. 107-28, at 6–7 (2001).
These guest workers lacked any U.S. immigration status. S.
Rep. No. 110-324, at 4; S. Rep. No. 107-28, at 6–7. As the
population of the CNMI expanded to 80,000 people,
Congress grew increasingly concerned by what it saw as the
“ineffective border control[s]” of the territory. S. Rep. No.
110-324, at 2–3.
As a result, Congress enacted the Consolidated Natural
Resources Act of 2008 (CNRA), Pub. L. No. 110-229, 122
Stat. 754 (codified in relevant part at 48 U.S.C. §§ 1806–
1808), which imposed United States immigration laws, in
particular the INA, within the CNMI effective November 28,
(Nov. 3, 1986); see also S.C. Res. 683, U.N. SCOR, 45th Sess., 2972d
mtg., at 29, U.N. Doc. S/RES/683 (Dec. 22, 1990) (recognizing the
termination of the Trusteeship Agreement).
TORRES V. BARR 9
2009, 8 C.F.R. § 1001.1(bb). 5 Under the INA, a noncitizen
present in the United States without being formally admitted
or temporarily paroled into the country is inadmissible.6
8 U.S.C. § 1182(a)(6)(A)(i) (hereinafter “§ 1182(a)(6)”).
Thus, the sudden imposition of the INA could have rendered
thousands of guest workers and other lawful residents under
CNMI law removable overnight. In an effort to ensure that
these guest workers and others like them were not unfairly
penalized, and that the CNMI economy would not be
destabilized by the deportation of previously admitted guest
workers, Congress provided a two-year reprieve in which
any alien “lawfully present in the Commonwealth” on
November 28, 2009 could not be removed for being present
in the United States without admission or parole in violation
of § 1182(a)(6). 48 U.S.C. § 1806(e)(1)(A).
B.
Starting in 2010, just months after the INA went into
effect in the CNMI, the federal government began charging
some CNMI residents as removable under 8 U.S.C.
§ 1182(a)(7), a provision of the INA not covered by the
CNRA’s two-year reprieve, for failing to possess a valid
entry document “at the time of application for admission.”
Many CNMI residents, like Torres, challenged their removal
on the basis that, because they had not yet submitted an
5
Although the initial transition date was June 1, 2009, 48 U.S.C.
§ 1806(a)(1), the Secretary of Homeland Security subsequently
exercised discretion under the CNRA, 48 U.S.C. § 1806(a)(3)(A), to
delay the effective date until November 28, 2009, see CNMI Transitional
Worker Classification, 76 Fed. Reg. 55,502, 55,501–03 (Sept. 7, 2011).
6
This opinion uses the term “noncitizen” as equivalent to the
statutory term “alien” in 8 U.S.C. § 1101(a)(3). See Barton v. Barr,
140 S. Ct. 1442, 1446 n.2 (2020).
10 TORRES V. BARR
application for admission into the United States, they were
not removable under this provision. See, e.g., Minto,
854 F.3d at 621; Erwin v. Whitaker, 752 F. App’x 535, 536
(9th Cir. 2019); Liqiang Gu v. Barr, 771 F. App’x 780, 780
(9th Cir. 2019).
Minto was our first decision to address the merits of this
argument. Minto started by noting that a separate provision
of the INA, 8 U.S.C. § 1225(a)(1), deems any noncitizen
present without admission in the United States an “applicant
for admission.” 7 854 F.3d at 624. Conflating the phrase
“applicant for admission” with “application for admission,”
Minto held that any applicant for admission should be treated
as having made a continuing application for admission that
does not terminate “until it [is] considered by the
[Immigration Judge (IJ)].” Id. The decision in Minto had
significant consequences for individuals who were lawfully
present in the CNMI before the INA went into effect. Many
CNMI residents, like the petitioner in Minto, would have had
no reason to apply for entry papers into the United States, as
they had entered before such papers were required. Yet,
under Minto, all were removable for lack of documentation
under § 1182(a)(7) despite Congress’s expressed intent that
they be permitted to remain for at least two years after the
INA went into effect. 48 U.S.C. § 1806(e)(1)(A).
C.
Like the petitioner in Minto, Torres is a CNMI resident
whom the government placed into removal proceedings in
7
The petitioner in Minto was a native of Bangladesh who had
entered the CNMI on a nonresident worker permit in 1997. Minto,
854 F.3d at 622. This worker permit was subsequently revoked, and the
petitioner was charged as removable under both § 1182(a)(6) and
§ 1182(a)(7). Id.
TORRES V. BARR 11
2010. Torres, a native of the Philippines, entered the CNMI
lawfully as a guest worker in 1997. By November 28, 2009,
Torres had given birth to three children in the CNMI, all of
whom are U.S. citizens. See Sabangan, 375 F.3d at 819–20
(holding that children born in the CNMI after 1978 are
citizens of the United States). Torres also filed a federal
employment discrimination complaint with the Equal
Employment Opportunity Commission (EEOC) and was
subsequently fired in retaliation for engaging in protected
activity. Torres was contesting her dismissal as the INA
became effective in the CNMI.
Nine months later, the Department of Homeland
Security served Torres with a Notice to Appear, charging her
with being removable under 8 U.S.C. § 1182(a)(6) as a
noncitizen “present in the United States without being
admitted or paroled,” and under 8 U.S.C. § 1182(a)(7), as a
noncitizen who “at the time of application for admission”
lacked “a valid entry document.” Torres contested her
removability under § 1182(a)(7) before the IJ, arguing that
because she had lawfully entered the CNMI in 1997 before
the INA went into effect, and because she had never
submitted an application for admission into the United
States, she fell outside the scope of that provision.8
Rejecting this argument, the IJ ordered Torres removed
under § 1182(a)(7). The BIA affirmed.
A three-judge panel of our court agreed, denying
Torres’s petition for review because it was bound by Minto’s
construction of § 1182(a)(7). Judge Berzon authored a
concurrence in which the other two members of the panel
joined, arguing that Minto was wrongly decided and should
8
Torres also contested her removability under § 1182(a)(6), but the
IJ did not reach this ground.
12 TORRES V. BARR
be overruled. Having considered the question en banc, we
now overrule our decision in Minto.
II.
We have jurisdiction under 8 U.S.C. § 1252(a). “[W]e
review de novo both purely legal questions and mixed
questions of law and fact.” Xochihua-Jaimes v. Barr,
962 F.3d 1175, 1183 (9th Cir. 2020) (quoting Cordoba v.
Holder, 726 F.3d 1106, 1113 (9th Cir. 2013)). Only the
“BIA’s findings of fact [are reviewed] for substantial
evidence.” Padilla-Martinez v. Holder, 770 F.3d 825, 830
(9th Cir. 2014).
III.
The complex provisions of the INA have provoked
comparisons to a “morass,” Lacsina Pangilinan v. Holder,
568 F.3d 708, 709 (9th Cir. 2009) (quoting Agyeman v.
I.N.S., 296 F.3d 871, 877 (9th Cir. 2002)), a “Gordian knot,”
Aguilar v. U.S. Immig. & Customs Enf’t, 510 F.3d 1, 6 (1st
Cir. 2007), and “King Minos’s labyrinth in ancient Crete,”
Lok v. I.N.S., 548 F.2d 37, 38 (2d Cir. 1977). We read this
dense statute against the backdrop of our constitutional
principles, see Zadvydas v. Davis, 533 U.S. 678, 690–99
(2001), administrative law, see I.N.S. v. Orlando Ventura,
537 U.S. 12, 16 (2002) (per curiam), and international treaty
obligations, see I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 418,
427 (1999); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436–
441, 439 n.22 (1987). Divining its meaning is ordinarily not
for the faint of heart.
Fortunately, the task here is relatively straightforward.
Torres was charged as removable under § 1182(a)(7), which
renders inadmissible:
TORRES V. BARR 13
any immigrant at the time of application for
admission—
(I) who is not in possession of a valid
unexpired immigrant visa, reentry permit,
border crossing identification card, or
other valid entry document required by
this chapter, and a valid unexpired
passport, or other suitable travel
document, or document of identity and
nationality if such document is required
under the regulations issued by the
Attorney General under section 1181(a)
of this title, or
(II) whose visa has been issued without
compliance with the provisions of section
1153 of this title . . . .
(emphasis added). We must construe the meaning of the
phrase “at the time of application for admission.” We
conclude that the phrase refers to the particular point in time
when a noncitizen submits an application to physically enter
into the United States.
A.
We start with the plain meaning of the statute. See
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017)
(“We begin, as always, with the text.”). Turning first to the
definitions provided by the INA, the term “application for
admission” refers to “application for admission into the
United States” as opposed to “the application for issuance of
an immigrant or nonimmigrant visa.” 8 U.S.C. § 1101(a)(4).
And while the Act does not define the word “application,” it
defines “admission” to mean “the lawful entry of the alien
14 TORRES V. BARR
into the United States after inspection and authorization by
an immigration officer.” 9 Id. § 1101(a)(13)(A). Finally,
although the INA does not currently define the term “entry,”
we have long understood this term to refer to “coming from
outside” into the United States. United States ex rel.
Claussen v. Day, 279 U.S. 398, 401 (1929); see also United
States v. Yong Jun Li, 643 F.3d 1183, 1186–88 (9th Cir.
2011) (explaining that we continue to construe the INA to
incorporate Claussen’s conception of “entry”). Taking these
definitions together, the phrase “application for admission”
means an “application to lawfully come from outside into the
United States after inspection and authorization by an
immigration officer.” Still, this only gets us so far. These
definitions alone do not address the core question in this
case: at what moment does “the time of application for
admission” occur?
By using this phrase solely in connection with
documents required to lawfully cross the United States
border, § 1182(a)(7) signals that the time of application for
admission is the time when a noncitizen seeks permission to
physically enter United States territory, regardless of
whether the noncitizen is seeking entry from outside the
9
“Although we have said that § 1101(a)(13)(A) provides the
‘primary, controlling definition’ of [admission], we have also
‘embrace[d] an alternative construction of the term’ when the statutory
context so dictates.” Ramirez v. Brown, 852 F.3d 954, 961 (9th Cir.
2017) (quoting Negrete-Ramirez v. Holder, 741 F.3d 1047, 1052 (9th
Cir. 2014)); see also Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134–
35 (9th Cir. 2001) (concluding that a post-entry adjustment of status
constitutes an “admission” for purposes of removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii)). As this opinion explains, statutory context
confirms that the “port-of-entry” definition in § 1101(a)(13)(A), id.,
applies in § 1182(a)(7).
TORRES V. BARR 15
country or inside the country at a port of entry. 10 Subsection
1182(a)(7)(A)(i)(I) begins with a list of the types of valid
entry documents an immigrant might need to physically
come into the country, including a “valid unexpired
immigrant visa, reentry permit, [or] border crossing
identification card.” Notably, the Act expressly defines a
“border crossing identification card” as being for the
“purpose of crossing over the borders between the United
States and foreign contiguous territory.” 8 U.S.C.
§ 1101(a)(6). Subsection 1182(a)(7)(A)(i)(I) follows this
list of entry documents with the catch-all phrase “or other
valid entry document”—a phrase which expressly tethers the
statute to the moment of entering into the United States from
another country. The next clause speaks of “a valid
unexpired passport, or other suitable travel document,” both
of which are documents authorizing travel between a foreign
state and the United States. See 8 U.S.C. § 1101(a)(30).
Finally, § 1182(a)(7)(A)(i)(I) concludes by referring to a
“document of identity and nationality if such document is
required under the regulations issued by the Attorney
General under section 1181(a) of this title.” Section 1181(a)
explains:
10
See United States v. Aldana, 878 F.3d 877, 881–82 (9th Cir. 2017)
(discussing the meaning of “a place designated by immigration officers”
and “port of entry” and noting in dicta that some are within the United
States); see also Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct.
1959, 1982 (2020) (“When an alien arrives at a port of entry—for
example, an international airport—the alien is on U. S. soil, but the alien
is not considered to have entered the country for the purposes of this rule.
On the contrary, aliens who arrive at ports of entry—even those paroled
elsewhere in the country for years pending removal—are ‘treated’ for
due process purposes ‘as if stopped at the border.’”).
16 TORRES V. BARR
[N]o immigrant shall be admitted into the
United States unless at the time of application
for admission he (1) has a valid unexpired
immigrant visa or was born subsequent to the
issuance of such visa of the accompanying
parent, and (2) presents a valid unexpired
passport or other suitable travel document, or
document of identity and nationality, if such
document is required under the regulations
issued by the Attorney General.
(emphasis added). By using the phrase “at the time of
application for admission” in connection with a “valid
unexpired immigrant visa” and “a valid unexpired passport
or other suitable travel document”—again, documents
necessary to cross into the country—§ 1181(a) reinforces
our understanding that this phrase refers to the moment of
applying for entry at the border.
Subsection 1182(a)(7)(A)(i)(II) confirms this statutory
reading. This subsection renders inadmissible any
immigrant who, “at the time of application for admission,”
has a “visa” that was “issued without compliance with”
8 U.S.C. § 1153, which itself governs the issuance of
immigrant visas. Like all the documents listed in
§ 1182(a)(7)(A)(i)(I), the sole document listed in
§ 1182(a)(7)(A)(i)(II)—an immigrant visa—is the sort of
document needed to cross into United States territory. See
8 U.S.C. § 1101(a)(16). Because all of the documents listed
in connection with the phrase “at the time of application for
admission” in § 1182(a)(7)(a)(i) subsections (I) and (II) are
of the type needed to lawfully cross into the United States
from another country, the most logical reading of that phrase
is that it refers to the moment of applying for entry into the
country. See Esquivel-Quintana, 137 S. Ct. at 1569 (relying
TORRES V. BARR 17
on the “everyday understanding of the term[s] used in” the
INA to construe a provision of that statute (quoting Lopez v.
Gonzales, 549 U.S. 47, 53 (2006)).
Statutory context supports this construction of
§ 1182(a)(7) as well. See Abramski v. United States,
573 U.S. 169, 179 (2014) (explaining that we “interpret the
relevant words not in a vacuum, but with reference to the
statutory context, ‘structure, history, and purpose’” (quoting
Maracich v. Spears, 570 U.S. 48, 76 (2013))). Section
1182(a)(4)(A), which is in the same inadmissibility
provision as § 1182(a)(7), renders inadmissible anyone who
is or is likely to become a public charge “at the time of
application for a visa, or in the opinion of the Attorney
General at the time of application for admission or
adjustment of status.” Whereas “adjustment of status” is a
way of obtaining lawful status while being physically
present in the United States, “application for admission” is a
way of applying to actually enter the country lawfully. See
Richard D. Steel, Steel on Immigration Law § 7:1 (2019 ed.)
(explaining that “adjustment of status” is “a procedure in
which certain aliens physically present in the United States
can obtain permanent resident status by adjusting their status
without leaving the United States”). By juxtaposing “the
time of application for . . . adjustment of status” with “the
time of application for admission,” § 1182(a)(4)(A)
confirms our conclusion that “application for admission”
should be read as referring to the moment an immigrant
applies to physically enter the country.
Relying on Minto, the government suggests that even if
“the time of application for admission” begins at the moment
when an immigrant applies to enter the country, this moment
continues, potentially for years or decades, until the
immigrant appears before the IJ in removal proceedings. We
18 TORRES V. BARR
have previously explained that the phrase “at the time”
imposes a “temporal requirement.” United States v. Hooper,
229 F.3d 818, 821 (9th Cir. 2000). Given that an immigrant
submits an “application for admission” at a distinct point in
time, stretching the phrase “at the time of application for
admission” to refer to a period of years would push the
statutory text beyond its breaking point. See Kyong Ho Shin
v. Holder, 607 F.3d 1213, 1220 (9th Cir. 2010) (counseling
that we must use common sense in construing the INA).
Congress knows how to write a statute to encompass a
continuous period as opposed to just a single point in time.
For example, in 8 U.S.C. § 1257(a), Congress permitted the
Attorney General to adjust the status of an immigrant who
met certain conditions “at the time of admission or
subsequently.” (emphasis added). Similarly, Congress has
imposed legal liability on employers who had constructive
knowledge of their employees’ unlawful immigration status
“at the time of hiring or afterward.” 8 U.S.C.
§ 1324a(a)(6)(C)(i) (emphasis added). As these examples
show, Congress understands the phrase “at the time” to refer
to a single point in time, and when it wants a statute’s reach
to endure over a continuous subsequent period, it says so. In
contrast to these examples, § 1182(a)(7) applies only when
a noncitizen lacks a valid entry document “at the time of
application for admission.” Accordingly, inadmissibility
must be measured at the point in time that an immigrant
actually submits an application for entry into the United
States.
B.
Our interpretation of § 1182(a)(7) today aligns with that
of the only other circuits to have addressed the question in a
published opinion. In Ortiz-Bouchet v. U.S. Attorney
General, the Eleventh Circuit considered whether two
TORRES V. BARR 19
immigrants physically present in the United States were
removable under § 1182(a)(7) for failing to have valid
documentation at the time of their application for adjustment
of status. 714 F.3d 1353, 1355 (11th Cir. 2013) (per curiam).
In concluding that they were not, the Eleventh Circuit held
that § 1182(a)(7) was inapplicable to undocumented
individuals who “were not outside the United States seeking
entry.” Id. at 1356. The Fifth Circuit later adopted the
Eleventh Circuit’s reasoning, concluding that § 1182(a)(7)
“only applies to applicants for admission and not to
immigrants . . . who sought post-entry adjustment of status
while already in the United States.” 11 Marques v. Lynch, 834
F.3d 549, 561 (5th Cir. 2016) (quoting Ortiz-Bouchet,
714 F.3d at 1356).
Thus, when Minto was decided in 2017, it put our
circuit’s interpretation of § 1182(a)(7) at odds with two other
circuit courts’ constructions of the statute. We now join the
Fifth and Eleventh Circuits in concluding that the statute’s
reference to “the time of application for admission” refers
only to the moment in time when the immigrant actually
applies for admission into the United States.
11
Although the Fourth Circuit has not expressly considered the
scope of § 1182(a)(7), its unpublished decision in Pascual v. Carroll
supports our interpretation of this provision. 976 F.2d 726 (4th Cir.
1992) (table) (analyzing § 1182(a)(7) with reference only to the moment
the petitioner actually sought entry into the United States). By contrast,
an unpublished decision by the Third Circuit adopted an interpretation
of § 1182(a)(7) in line with that of Minto. See Alvarenga de Rodriguez
v. Att’y Gen., 784 F. App’x 852, 853 (3d Cir. 2019). For the reasons
discussed in this opinion, we find the reasoning in Alvarenga de
Rodriguez unpersuasive.
20 TORRES V. BARR
C.
Minto arrived at a different reading of § 1182(a)(7) by
relying on 8 U.S.C. § 1225(a)(1), which provides that “[a]n
alien present in the United States who has not been admitted
. . . shall be deemed for purposes of this chapter an applicant
for admission.” Minto conflated the term “applicant for
admission” from § 1225(a)(1) with the term “application for
admission” in § 1182(a)(7) and made two leaps of logic from
there: first holding that, because Minto was present in the
United States on the CNRA’s effective date without having
been admitted or paroled, he was deemed to be an “applicant
for admission,” and, second, that he should therefore be
deemed to have made an actual application for admission
under § 1182(a)(7). 854 F.3d at 623–24. This reading failed
to understand that the phrase “applicant for admission” is a
term of art denoting a particular legal status, as the history of
its enactment makes clear. Moreover, Minto entirely
disregarded a precedential decision of the BIA that squarely
held to the contrary.
1. History
Section 1225(a)(1) was added to the INA as part of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), Pub. L. No. 104-208, § 302, 110 Stat.
3009-546. “Prior to the passage of IIRIRA, immigration law
provided for two types of removal proceedings: deportation
hearings and exclusion hearings.” Hose v. I.N.S., 180 F.3d
992, 994 (9th Cir. 1999) (en banc). “A deportation hearing
was the ‘usual means of proceeding against an alien already
physically [but not lawfully] in the United States,’ while an
exclusion hearing was the ‘usual means of proceeding
against an alien outside the United States seeking
admission.’” Id. (emphasis added) (quoting Landon v.
Plasencia, 459 U.S. 21, 25 (1982)). Whether an applicant
TORRES V. BARR 21
was eligible for “admission” was determined only in
exclusion proceedings, and exclusion proceedings were
limited to “entering” noncitizens—those noncitizens
“coming . . . into the United States, from a foreign port or
place or from an outlying possession,” Plasencia, 459 U.S.
at 24 n.3 (quoting 8 U.S.C. § 1101(a)(13) (1994)). The
distinction between those who had entered the United States
and those who had not was important: “non-citizens who had
entered without inspection could take advantage of the
greater procedural and substantive rights afforded in
deportation proceedings, while non-citizens who presented
themselves at a port of entry for inspection were subjected
to more summary exclusion proceedings.” Yin Hing Sum v.
Holder, 602 F.3d 1092, 1100 (9th Cir. 2010); see also
Plasencia, 459 U.S. at 25–26 (listing some of the differences
between these proceedings). This created an anomaly
whereby immigrants who were attempting to lawfully enter
the United States were in a worse position than persons who
had crossed the border unlawfully. See Yin Hing Sum,
602 F.3d at 1100; see also H.R. Rep. No. 104-469, pt. 1,
at 225–29 (1996).
IIRIRA did away with this “‘entry doctrine’ . . .
anomaly.” Yin Hing Sum, 602 F.3d at 1100. For example,
IIRIRA amended 8 U.S.C. § 1101 so that it defined
“admission” to mean “lawful entry . . . after inspection and
authorization.” IIRIRA § 301; see H.R. Rep. No. 104-469,
pt. 1, at 225–26 (explaining reasons for the amendment). It
also “replac[ed] deportation and exclusion proceedings with
a general ‘removal’ proceeding.” Yin Hing Sum, 602 F.3d at
1100.
Finally, and most importantly for our purposes, IIRIRA
added § 1225(a)(1). This provision ensures that all
immigrants who have not been lawfully admitted, regardless
22 TORRES V. BARR
of their physical presence in the country, are placed on equal
footing in removal proceedings under the INA—in the
position of an “applicant for admission.” 8 U.S.C.
§ 1225(a)(1); see H.R. Rep. 104-469, pt. 1, at 225
(explaining that § 1225(a)(1) “[wa]s intended to replace
certain aspects of the current ‘entry doctrine,’ under which
illegal aliens who have entered the United States without
inspection gain equities and privileges in immigration
proceedings that are not available to aliens who present
themselves for inspection at a port of entry”). Now, in
removal proceedings, the relevant distinction for procedural
purposes is whether the immigrant has been lawfully
admitted, regardless of actual physical presence. Compare
8 U.S.C. § 1229a(c)(2)(A) (explaining that when the
respondent in removal proceedings is “an applicant for
admission,” he has the burden of proof with regards to
certain elements of the removal proceeding), with id.
§ 1229a(c)(3)(A) (explaining that when the respondent has
been admitted, the burden of proof is on the government).
Minto misread this deeming provision, which places
some physically-but-not-lawfully present noncitizens into a
fictive legal status for purposes of removal proceedings, as
altering the meaning of a substantive ground of
inadmissibility that refers to the time of a real event: an
actual application for admission. The language of
§ 1182(a)(7), the inadmissibility provision at issue in this
case, first entered our immigration laws in its current form
in 1952. See Immigration and Nationality Act of 1952, Pub.
L. No. 82-414, § 212(a)(20), 66 Stat. 163, 183–84; see also
Alien Registration Act of 1940, Pub. L. No. 76-670, § 30, 54
Stat. 670, 673. Congress would have made it plain if the
deeming provision, enacted some four decades later, altered
TORRES V. BARR 23
the longstanding meaning of § 1182(a)(7). 12 For example,
the 1996 IIRIRA explicitly clarified the meaning of one of
the terms in the phrase “at the time of application for
admission” by adding a new definition of “admission” as
“lawful entry.” IIRIRA § 301. Congress did not act to
define “application” in that same provision, however, so it
could not have meant sub silentio to equate “applicant” with
“application.” 13
2. BIA Precedent
Although Minto failed to acknowledge or distinguish it,
the BIA had previously issued a precedential decision,
Matter of Y-N-P-, 26 I. & N. Dec. 10 (BIA 2012), to which
12
To the contrary, the available evidence suggests that Congress
specifically understood that § 1182(a)(7) would continue its historical
meaning. See H.R. Rep. No. 104-828, at 208, 209 (1996) (Conf. Rep.)
(observing that § 1182(a)(6) would apply where noncitizens had already
“made an entry without inspection,” and § 1182(a)(7) would apply where
the “examining immigration officer determines that an arriving alien”
lacks valid documents (emphases added)).
13
The government notes that 8 U.S.C. § 1225(b)(1)(A)(i) allows
expedited removal of noncitizens who are “arriving in the United States”
or certain noncitizens who are physically, but not lawfully, present in the
United States if they are “inadmissible under section 1182(a)(6)(C) or
1182(a)(7).” Thus, the government argues, Torres need not have been
“physically at the border” to have made an application for admission
under § 1182(a)(7). However, no case has held that § 1225(b)(1) allows
an immigration officer to apply § 1182(a)(7) to noncitizens who are
physically but unlawfully present in the United States. Indeed,
§ 1182(a)(7), as opposed to § 1182(a)(6)(C), may apply only to
noncitizens who are “arriving in the United States.” 8 U.S.C. § 1225
(b)(1). But because § 1225(b)(1) references only an immigration
officer’s authority, and not a court’s authority, we need not resolve the
full scope of § 1225(b)(1)(A)(iii) in order to conclude that § 1182(a)(7)
does not apply to a noncitizen in Torres’s situation.
24 TORRES V. BARR
our court has already given deference, that is highly relevant
here. See Garcia-Mendez v. Lynch, 788 F.3d 1058, 1063–65
(9th Cir. 2015) (deferring to Y-N-P-’s interpretation of the
scope of § 1182(h)); see also Arevalo v. U.S. Att’y Gen., 872
F.3d 1184, 1197 (11th Cir. 2017) (per curiam) (same).
Whereas we are presently concerned with the impact of
§ 1225(a)(1) on the phrase “at the time of application for
admission” in § 1182(a)(7), Matter of Y-N-P- was concerned
with the impact of § 1225(a)(1) on the analogous phrase
“applying . . . for admission” in another subsection of § 1182
(“Inadmissible aliens”): the § 1182(h) waiver. In Matter of
Y-N-P-, the respondent had unlawfully entered, and thus was
physically present in the United States without having ever
actually applied for admission. 26 I. & N. Dec. at 10.
Nevertheless, the respondent argued that she should be
deemed an applicant for admission under § 1225(a)(1) and
should therefore be eligible for cancellation of removal as a
noncitizen “applying . . . for admission” under § 1182(h).
Id. at 12–13. A three-judge panel of the BIA rejected this
argument, emphasizing that the term “applicant for
admission” in the deeming provision of § 1225(a)(1)
“merely” determines a respondent’s legal status for purposes
of removal proceedings, and is otherwise “distinguishable
from ‘applying . . . for admission to the United States’ within
the meaning of” § 1182(h). Id. at 13 (citing Poveda v. U.S.
Att’y Gen., 692 F.3d 1168, 1176 (11th Cir. 2012), which
defined the phrase “applying for . . . admission” in § 1182(h)
with reference to an immigrant seeking “admission at the
border”). Just as the BIA concluded that it is a mistake to
read the deeming provision, § 1225(a)(1), as altering the
meaning of “applying . . . for admission” in § 1182(h), so too
is it a mistake to read that provision as changing the meaning
TORRES V. BARR 25
of “the time of application for admission” under
§ 1182(a)(7). 14
14
Minto relied on the BIA’s decision in Matter of Valenzuela-Felix,
26 I. & N. Dec. 53 (BIA 2012), which did not interpret the meaning of
“the time of application for admission” in any provision of the INA, let
alone the meaning of that phrase under § 1182(a)(7). Rather,
Valenzuela-Felix concerns a statutory provision and a statutory phrase
not at issue in this case: 8 U.S.C. § 1101(a)(13)(C), which exempts
returning lawful permanent residents from being regarded as “seeking an
admission into the United States” for immigration purposes unless they
have, inter alia, committed certain criminal acts. Id. at 54. The BIA
determined that the decision whether the noncitizen was a returning
lawful permanent resident under § 1101(a)(13)(C) or was seeking an
admission into the United States could be made in a subsequent removal
proceeding because an “application for admission is a continuing one
and that admissibility is determined on the basis of the law and facts
existing at the time the application is finally considered.” Id. at 59–60.
There was no doubt in Valenzuela-Felix, however that the noncitizen had
sought permission to physically enter the United States from abroad, and
the only question was whether the noncitizen should receive the benefit
of § 1101(a)(13)(C). Therefore, Valenzuela-Felix, sheds no light on
when (if at all) “the time of application for admission” occurs in the
circumstances here, where the noncitizen never sought admission into
the United States in the first place. Thus, Valenzuela-Felix does not
affect our interpretation of the provisions at issue here.
Likewise, none of the other BIA decisions cited by the government
addresses § 1182(a)(7) or sheds light on the question of when “the time
of application for admission” actually occurs. See Matter of Kazemi,
19 I. & N. Dec. 49, 51 (BIA 1984) (explaining that facts that transpired
after an application for admission can be considered in determining the
respondent’s inadmissibility); Matter of Alarcon, 20 I. & N. Dec. 557,
562 (BIA 1992) (same); see also Matter of Accardi, 14 I. & N. Dec. 367,
369 (BIA 1973) (explaining that a respondent physically present inside
the country can be deemed an applicant for admission, which is
consistent with today’s version of § 1225(a)(1)).
26 TORRES V. BARR
D.
While our analysis of the text and context of the statute
is sufficient to reach our conclusion today, we also note that
a contrary reading would render other provisions of the
immigration code superfluous. Minto worked a double-
superfluity to render meaningless Congress’s attempt to
stave off the sudden destabilizing effect an overnight change
of immigration laws would have on workers and residents
lawfully present under CNMI law. First, Minto’s
interpretation of § 1182(a)(7) renders § 1182(a)(6) wholly
redundant as a ground of inadmissibility. Anyone present in
the United States without admission or parole in violation of
§ 1182(a)(6) will necessarily lack a valid admission
document. Under Minto’s reading, therefore, anyone present
without a valid admission document is also in violation of
§ 1182(a)(7), at all times. See Dastar Corp. v. Twentieth
Century Fox Film Corp., 539 U.S. 23, 34–35 (2003); see
also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 174–79 (2012) (regarding the
rule against surplusage).
Second, as a result of the superfluity discussed above,
Minto also renders a complete nullity Congress’s two-year
reprieve for immigrants lawfully present in the CNMI.
Every individual lawfully present in the CNMI as described
in the CNRA, 48 U.S.C. § 1806(e)(1)(A), who would
otherwise have been removable as an individual present
without admission or parole within the meaning of
§ 1182(a)(6), would necessarily also lack a “valid entry
document” within the meaning of § 1182(a)(7). Minto’s
interpretation would thus allow removal of the very persons
Congress sought to protect from removal by enacting the
two-year reprieve statute. When a statute permits of two
interpretations, we generally adopt the interpretation that
TORRES V. BARR 27
avoids depriving another statute of practical effect. TRW
Inc. v. Andrews, 534 U.S. 19, 29 (2001); see also United
States v. Castleman, 572 U.S. 157, 178 (2014) (Scalia, J.,
concurring in part and concurring in the judgment)
(explaining that the “presumption against ineffectiveness”
means “that Congress presumably does not enact useless
laws”).
The government does not contest that Minto vitiates
Congress’s two-year reprieve for CNMI residents. Instead,
the government claims we need not worry because it will not
abuse the INA by removing the CNMI residents that
Congress sought to protect. Yet Congress did not leave the
residents of the CNMI “at the mercy of noblesse oblige.”
United States v. Stevens, 559 U.S. 460, 480 (2010). Instead,
it codified a guarantee, which we decline to make
meaningless.
In addition, amici 15 correctly emphasize that Minto
renders inoperative a third statutory provision: Congress’s
attempt to protect victims of domestic violence through the
Violence Against Women Act (VAWA). VAWA protects
certain “battered women and children” who are “present in
the United States without admission or parole” from removal
under § 1182(a)(6)(A)(i). 8 U.S.C § 1182(a)(6)(A)(ii). The
government’s own data show that nearly 14,000 women and
children filed VAWA petitions in 2019. Number of Form I-
360, Petition for Amerasian, Widow(er), or Special
Immigrant, Violence Against Women Act (VAWA) Self-
15
Amici are organizations assisting survivors of domestic violence,
including the Asian Pacific Institute on Gender-Based Violence,
ASISTA Immigration Assistance, the National Coalition Against
Domestic Violence, the National Immigrant Justice Center, and the
Tahirih Justice Center.
28 TORRES V. BARR
Petitioner, Fiscal Years 2010–2019, By Case Status, Fiscal
Year, and Quarter, U.S. Citizenship and Immigration
Services. 16 The protections Congress sought to provide
many of these women would be worthless if the government
could make an end-run around VAWA by removing these
petitioners for lacking valid documentation while present in
the United States, but before they had in fact applied for
admission to enter it.
IV.
Therefore, we grant Torres’s petition for review to the
extent the BIA determined that she was removable “as an
intending immigrant without a . . . valid entry document”
under § 1182(a)(7).
The BIA properly concluded that Torres is ineligible for
relief in the form of cancellation of removal. Substantial
evidence supports the BIA’s determination that Torres failed
to carry her burden of establishing ten years of continuous
presence in the United States. Construing § 705 of the
CNRA, we held in Eche v. Holder that “residence in the
CNMI before United States immigration law became
effective” does not “count toward the residence required for
naturalization as a United States citizen.” 694 F.3d 1026,
1030 (9th Cir. 2012). Torres does not dispute that she
resided in the CNMI from 1997 through 2010, a period of
time that counts predominantly as residence in the CNMI,
but as only a few months in the United States under § 705(c).
Moreover, the BIA correctly noted that although Torres
applied for parole-in-place, she presented no evidence that
such status had been granted. Torres asks us to remand her
16
https://tinyurl.com/y4lca8ru (last visited July 22, 2020).
TORRES V. BARR 29
case to the agency to determine whether United States
Citizenship and Immigration Services should grant her
application for parole-in-place under 8 U.S.C.
§ 1182(d)(5)(A), which grants the Attorney General
discretion to “parole into the United States temporarily under
such conditions as he may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant public
benefit any alien applying for admission to the United
States.” Neither we nor the agency has jurisdiction over this
question. See id.; 8 C.F.R. § 212.5(a); Rodriguez v. Robbins,
715 F.3d 1127, 1144 (9th Cir. 2013) (“The parole process is
purely discretionary and its results are unreviewable by
IJs.”). As the BIA correctly stated, the “parole authority
under section 212(d)(5)(A) of the [INA] is delegated solely
to the Secretary of Homeland Security and is not within the
jurisdiction of the [agency].”
V.
We therefore grant in part and deny in part the petition
for review, and remand to the agency for a determination in
the first instance whether Torres was removable under the
second ground originally charged in the Notice to Appear—
removability as “[a]n alien present in the United States
without being admitted or paroled” under § 1182(a)(6). The
Notice to Appear issued on July 22, 2010, within the two-
year period during which Congress provided that “no alien
who is lawfully present in the Commonwealth pursuant to
the immigrant laws of the Commonwealth [on the effective
date]” shall be removed for a violation of § 1182(a)(6). The
BIA should, on remand, address the question whether Torres
was “lawfully present” in the CNMI under CNMI law, 17 and
17
Although the BIA noted that Torres lacked an “umbrella permit,”
that does not end the inquiry as to lawful presence. While the CNMI
30 TORRES V. BARR
thus not removable under § 1182(a)(6). See Orlando
Ventura, 537 U.S. at 16.
PETITION GRANTED IN PART; DENIED IN
PART; REMANDED.
government issued some lawfully present guest workers two-year
conditional work permits—colloquially called “umbrella permits”—just
before the CNRA went into effect, not all lawfully present guest workers
received these permits. See USCIS Advises Foreign Nationals Whose
Work Permits Expire Before CNMI-Only Visa Categories Are
Available, https://tinyurl.com/y2o5prhc (last visited July 25, 2020); see
also de Guzman v. Napolitano, No. 11-00021, 2011 WL 8186655, at *1
(D. N. Mar. I. Dec. 30, 2011).