Jaime Perez-Enriquez v. Alberto R. Gonzales, Attorney General

463 F.3d 1007, 37 A.L.R. Fed. 2d 747, 2006 U.S. App. LEXIS 23466

Opinions

WILLIAM A. FLETCHER, Circuit Judge:

The question raised by this petition is whether the admissibility of an alien under the Special Agricultural Worker (“SAW”) program is determined only as of the date of admission for lawful temporary residence under 8 U.S.C. § 1160(a)(1), or whether it is determined both as of that date and as of the date of adjustment to lawful permanent residence under § 1160(a)(2). We hold that admissibility is determined as of the date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence. We therefore grant the petition for review.

I. Factual Background

On about November 10, 1988, Jaime Perez-Enriquez, a citizen of Mexico, was admitted to lawful temporary resident status under the SAW provisions of the Im migration and Nationality Act (“INA”), 8 U.S.C. § 1160(a)(1). It is undisputed that at the time he was granted temporary resident status, Perez-Enriquez satisfied the requirements for admissibility under § 1160(a)(1). On December 1, 1990, Per-eznEnriquez’s status was automatically adjusted to lawful permanent resident under 8 U.S.C. § 1160(a)(2).

On March 27, 1989, after his admission as a lawful temporary resident under § 1160(a)(1), but before his adjustment to lawful permanent resident status under § 1160(a)(2), Perez-Enriquez pled guilty to possession for sale of a controlled substance in violation of California Health and Safety Code § 11135. The court imposed a $100 fine and a suspended sentence of 180 days in county jail. In 2001, the Immigration and Naturalization Service¹ (“INS”) sought to remove Perez-Enriquez as an inadmissible alien under 8 U.S.C. § 1227(a)(1)(A) on the ground that, due to his drug conviction, he was inadmissible at the time his status was adjusted to that of lawful permanent resident. Perez-Enri-quez contended that because he had been admitted under the SAW program, his admissibility had been determined at the time of his admission as a lawful temporary resident under § 1160(a)(1). Therefore, according to Perez-Enriquez, the INS could not seek removal on the ground that he was inadmissible.

The Immigration Judge (“LJ”) ordered Perez-Enriquez removed as an inadmissible alien under § 1227(a)(1)(A). The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision in a “streamlined” order.

Perez-Enriquez timely petitioned for review in this court. A three-judge panel denied the petition, holding that because Perez-Enriquez had been convicted of his crime before his adjustment to lawful permanent resident status under § 1160(a)(2), he never successfully adjusted to that status. Thus, according to the panel, the INS could seek his removal as an inadmissible alien under § 1227(a)(1)(A) rather than as a lawful permanent resident. Perez-Enri-quez v. Gonzales, 411 F.3d 1079, 1083 (9th Cir.2005). We have vacated the decision of the three-judge panel and taken the case en banc to consider Perez-Enriquez’s petition anew. Perez-Enriquez v. Gonzales, 436 F.3d 1097 (9th Cir.2006).

Because this was a streamlined decision, we review the IJ’s decision as the final agency action. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003), as amended. We review the legal questions presented de novo, de Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004), as amended. We give Chevron deference to established constructions by the BIA of the statutes it is charged to administer. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).

II. Jurisdiction

The government has argued that under 8 U.S.C. § 1252(a)(2)(C) we lack jurisdiction to review the petition because Perez-Enriquez “is removable by reason of having committed a criminal offense covered in [8 U.S.C. § ] 1182(a)(2).” This argument was made prior to the enactment of the REAL ID Act of 2005. Pub.L. No. 109-13, 119 Stat. 231, 310 (2005). Section 106(a)(l)(A)(iii) of the Act amended 8 U.S.C. § 1252 to add a new subsection. That subsection provides: “Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” 8 U.S.C. § 1252(a)(2)(D). We are presented with a reviewable question of law: whether PerezAEnriquez’s admissibility is determined not only as of the date of his admission to lawful temporary status under § 1160(a)(1), but also as of the date of his adjustment to lawful permanent status under § 1160(a)(2). The government contended, and the IJ concluded, that the statute requires that admissibility be determined as of both dates. If the IJ’s construction of the statute is wrong, Perez-Enriquez is not removable on the ground charged by the government. We have jurisdiction under § 1252 to review the IJ’s legal conclusion.

III. Discussion

The SAW program was established by Congress in 1986 as a two-step legalization program for certain alien agricultural workers. Under 8 U.S.C. § 1160(a)(1), the Attorney General “shall adjust the status of an alien to that of an alien lawfully admitted for temporary residence if the Attorney General determines that” the individual has applied for such adjustment within eighteen months of November 6, 1986; has resided in the United States and performed agricultural work for at least 90 man-days during the twelve-month period ending on May 1, 1986; and is otherwise admissible as an immigrant. After a statutorily prescribed time period, the Attorney General then “shall adjust the status of any alien provided lawful temporary resident status under paragraph (1) to that of an alien lawfully admitted for permanent residence.” Id. § 1160(a)(2).

Under § 1160(a)(3)(A), the Attorney General “may terminate” an individual’s temporary resident status at any time pri- or to adjustment of status to a lawful permanent resident. Under § 1160(a)(3)(B), the Attorney General “may deny adjustment to permanent status and provide for termination of the temporary resident status” under § 1160(a)(1) if, inter alia, “the alien ... is convicted of a felony ... committed in the United States.” However, if the Attorney General does not act affirmatively to terminate an alien’s temporary resident status under § 1160(a)(3), that status is automatically adjusted to permanent resident under § 1160(a)(2) after the passage of the requisite time period.

The government, however, contends that 8 U.S.C. § 1227(a)(1)(A) dictates a different timetable for determining admissibility than just described. Section 1227(a)(1)(A) provides:

Inadmissible aliens

Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.

(Emphasis added.) The government contends that the admissibility of all aliens— even aliens already admitted to lawful temporary resident status under the SAW program under § 1160(a)(1) — is determined, for purposes of any adjustment of status, as of the date of that adjustment. By the government’s logic, Perez-Enri-quez’s conviction rendered him inadmissible at the time of his adjustment from temporary to permanent legal resident status. Therefore, according to the government, Perez-Enriquez is removable as an inadmissible alien under § 1227(a)(1)(A).

The legal question is narrow, but the consequence is important. If the admissibility of an alien admitted under the SAW program is determined at the time of his initial adjustment of status to lawful temporary resident under § 1160(a)(1), and if the alien’s status is thereafter automatically adjusted to lawful permanent resident without further inquiry into admissibility, the government may institute removal proceedings against the alien. But the government must do so on the premise that the alien is a lawful permanent resident alien rather than that the alien is inadmissible.

Lawful permanent resident aliens have important protections in removal proceedings that are not provided to inadmissible aliens. For example, depending on the circumstances, a lawful permanent resident alien is entitled to seek relief under Section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996), and INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), or to seek cancellation of removal under 8 U.S.C. § 1229b(a). In Perez-Enriquez’s case, the relevant protection is that provided by Section 212(c) and St. Cyr because he pled guilty to his drug offense in 1989, prior to the adoption of three statutes limiting the availability of relief under Section 212(c). See St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271.

The BIA has authoritatively construed the statute in the manner urged by Perez-Enriquez. In Matter of Jimenez-Lopez, 20 I. & N. Dec. 738, 1993 WL 494088 (BIA 1993), Jimenez-Lopez had been admitted to lawful temporary resident status under the SAW program. Jimenez-Lopez sought to return to the United States from Mexico, but was excluded from reentry because marijuana was found in his car at the border. In discussing his excludability under § 1225, the BIA carefully described the operation of the SAW program and § 1160(a):

[S]eetion 210(a)(2) of the Act [8 U.S.C. § 1160(a)(2)] ... adjusts the status of an alien granted lawful temporary status under section 210(a)(1) [§ 1160(a)(1)] to that of a lawful permanent resident on the basis of a fixed schedule, without regard for the alien’s admissibility at that time. This mechanism is perhaps unique under the immigration laws, since an alien admitted for temporary residence under section 210(a)(1) may apparently adjust his or her status to that of a lawful permanent resident even if physically outside of the United States....

It is true that section 210(a)(3)(B) of the Act, 8 U.S.C. § 1160(a)(3)(B) (Supp. IV 1992), permits the Attorney General to deny a lawful temporary resident adjustment of status under section 210(a)(2) and terminate temporary resident status upon, inter alia, the alien’s commission of an act that renders him or her inadmissible under section 212(a) of the Act [§ 1182]. However, the language of this provision is permissive in nature only; it does not mandate an examination of a lawful temporary resident’s admissibility before adjustment to permanent status, such as is the case with respect to adjustment under section 245 [§ 1227],

[T]he record reflects that the Service clearly could have proceeded to deny the applicant’s adjustment of status under section 210(a)(2) of the Act and to terminate his lawful temporary resident status, but did not. We do not find this omission, however, to constitute a new determination of the applicant’s admissibility to the United States, as the Service was not obliged to make such a finding before the automatic adjustment of the applicant’s status took place on December 1,1990.

Id. at 742-43 (internal citation omitted). The BIA held that Jimenez-Lopez was excludable from the United States because of his attempt to smuggle marijuana into the United States, but that he was excludable only as a lawful permanent resident alien, not as a temporary resident. The BIA was explicit on this point: “The necessary conclusion is that these exclusion proceedings are still proper despite the applicant’s adjustment of his status to that of lawful permanent resident under section 210(a)(2) of the Act [§ 1160(a)(2)].” Id. at 743 (emphasis added).

We conclude that the BIA’s opinion in Jimenez-Lopez, published in 1993, is alone dispositive of this case as a clear, authoritative explication of the operation of § 1160(a). We give Chevron deference to published decisions of the BIA interpreting the immigration statutes it is charged to administer. As stated by the Supreme Court in INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999):

The Attorney General, while retaining ultimate authority, has vested the BIA with power to exercise the “discretionary power and authority conferred upon the Attorney General by law” in the course of “considering and determining cases before it.” 8 C.F.R. § 3.1(d)(1) (1998). Based on this allocation of authority, we recognized in Cardoza-Fonseca, [480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)], that the BIA should be accorded Chevron deference as it gives ambiguous statutory terms “concrete meaning through a process of case-by-case adjudication”!.]

Despite this statement in Aguirre-Aguirre, the dissent contends that we should not give Chevron deference to Jimenez-Lopez. It gives three reasons. First, the dissent states that “the applicable immigration statutes have changed considerably since 1993.” Diss. op. at 1019. In a broad sense it is, of course, true that the immigration statutes “have changed considerably since 1993.” But the narrower issue relevant to this case is whether any of the “applicable” statutes has changed. The dissent fails to identify any statutory provision applicable to this case that has changed since 1993.

Second, the dissent states that “the Attorney General of the United States[ ] does not share the panel’s reading of Jimenez-Lopez. ... It seems anomalous to give deference to an agency determination that is contrary to the position taken by the head of the agency.” This statement disregards that the Attorney General has vested his discretionary interpretive authority to the BIA, see 8 C.F.R. § 3.1(d)(1) (2003), Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439, and that the BIA has already interpreted the statutory provisions at issue. The position of the government in this case is a litigating position taken in opposition to a published decision of the agency charged with administering the statute. See Bowen v. Georgetown University Hospital, 488 U.S. 204, 212-13, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (“We have never applied the principle [of Chevron and other cases] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.”); Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 741, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (“Of course we deny deference to ‘agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.’ ” (citing Bowen)).

Third, the dissent states that “if there is more than one possible construction of § 1160, then neither this court nor the BIA is bound under Chevron to the majority’s interpretation of Jimenez-Lopez.” Conceding arguendo the dissent’s premise that there is more than one possible construction of § 1160, the dissent’s conclusion does not follow from its premise. Whenever a statute is susceptible to more than one interpretation, Chevron deference is owed to an interpretation provid ed by the agency charged with administering the statute. In this case, that agency is the BIA. Contrary to the dissent’s statement, the BIA is not bound under Chevron to follow any particular interpretation of an ambiguous provision of our immigration statutes. Rather, it is this court that is bound under Chevron. Also contrary to the dissent’s statement, we are not providing an “interpretation of Jimenez-Lopez ” in this case. Rather, we are following the interpretation of § 1160 provided by the BIA in Jimenez-Lopez, as required by Chevron.

We note for good measure that prior to the three-judge panel decision in this case, the BIA consistently followed Jimenez-Lopez in an unbroken string of unpublished opinions. Such unpublished decisions are not entitled to Chevron deference, see Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but they serve to underline the correctness of our reading of the BIA’s decision in Jimenez-Lopez.

For example, In re Herrera-Mendez, 2004 WL 1167348 (BIA Jan. 27, 2004), is factually indistinguishable from this case. Like Perez-Enriquez, Herrera-Mendez was an agricultural worker admitted under the SAW program. Also like Perez-Enri-quez, he was convicted of a drug offense between the time of his admission to temporary resident status and his adjustment to permanent resident status. Citing Jimenez-Lopez, the BIA held that Herrera-Mendez had successfully adjusted to permanent resident status despite the drug conviction. It wrote:

[Respondent became a lawful temporary resident of the United States on June 16, 1988, as a special agricultural worker (SAW) pursuant to section 210 of the Act [8 U.S.C. § 1160],... The respondent’s drug conviction was entered August 17, 1990, after she had already filed her SAW application. On December 1, 1990, her status was adjusted to lawful permanent resident pursuant to section 210 of the Act.

The rules and procedures for adjustment to permanent status under section 210(a)(2) of the Act [§ 1160(a)(2)] differ from those relating to adjustment of status under section 245 of the Act [# AD8E # 1227]. Whereas adjustment pursuant to section 245 of the Act requires that an alien be admissible to the United States at the time of his adjustment to lawful permanent residence, adjustment pursuant to section 210(a)(2) of the Act has no such requirement. Instead, pursuant to section 210(a)(1)(C) of the Act, an alien’s admissibility to the United States is determined as of the time of his adjustment to that of lawful temporary resident. After the alien has been granted lawful temporary resident status under section 210(a)(1) of the Act, section 210(a)(2) mandates that his status be adjusted to that of lawful permanent resident based on a fixed schedule and without further reference to his admissibility .... See Matter of Juarez, 20 I & N Dec. 340, 345, 1991 WL 353521 (BIA 1991); see also Matter of Jimenez-Lopez, 20 I & N Dec. 738, 742 (BIA 1993).

Id. (internal citations and footnotes omitted). The BIA “therefore disagree[d] with the DHS that [Herrera-Mendez] was inadmissible [to] the United States when she adjusted her status to lawful permanent resident, and ineligible for section 212(c) consideration.” Id.

To the same effect are In re Rodriguez-Rodriguez, 2004 WL 1739154 (BIA June 29, 2004) (“[P]ursuant to section 210(a)(1)(C) of the Act, an alien’s admissibility to the United States is determined as of the time of his adjustment to that of lawful temporary resident.... After the alien has been granted lawful temporary resident status under section 210(a)(1) of the Act, section 210(a)(2) mandates that his status be adjusted to that of lawful permanent resident alien based on a fixed schedule and without further reference to his admissibility. See ... Matter of Jimenez-Lopez [.]”); In re Acuna Martinez, 2004 WL 1167124 (BIA Feb. 12, 2004) (“[U]nlike section 245 of the Act, which requires both a discretionary determination and consideration of statutory requirements such as the alien’s continuing admissibility, provisions set forth at section 210 do not mandate an examination of a lawful temporary resident’s admissibility, but rather provide for an ‘automatic’ adjustment after 2 years of status as a temporary resident. See Matter of Jimenez-Lopez [.].”); and In re Tellez-Gomez, 2004 WL 1059693 (BIA Jan. 2, 2004) (“After the alien has been granted lawful temporary resident status under section 210(a)(1) of the Act, section 210(a)(2) mandates that his status be adjusted to that of lawful permanent resident based on a fixed schedule and without further reference to his admissibility. See ... Matter of Jimenez-Lopez [.]”).

IV. No Remand under INS v. Ventura

The government contends that the BIA’s unpublished decisions just described did not answer the question now before us — whether § 1227(a)(1) requires that the admissibility of SAW workers must be determined at the time of readjustment of status to permanent resident alien under § 1160(a)(2). It argues that therefore, at a minimum, we should remand this case to the BIA under INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), for an answer to that question. For two reasons, we disagree with the government’s contention that a Ventura remand is required.

First, contrary to the government’s contention, the BIA’s unpublished decisions did answer the question now before us. For example, Herrera-Mendez is, as noted above, factually indistinguishable from this case. The BIA concluded that Herrera-Mendez had successfully adjusted her status and was therefore eligible for relief under Section 212(c). The necessary premise underlying that conclusion is that Herrera-Mendez, and SAW aliens in her position, were not “inadmissible” at the time of their adjustment to permanent resident status under § 1162(a)(2). The BIA’s conclusion thus addressed precisely the question now before us, for the key phrase in § 1227(a)(1)(A) is “[inadmissible ... at the time of ... adjustment of status.”

Second, until the three-judge panel’s decision in this case, the BIA consistently followed the construction of § 1160(a) articulated in Jimenez-Lopez and reflected in the unpublished decisions described above. As a result of the three-judge panel’s decision in the case now before us, the BIA felt compelled to change its construction. In 2004, the BIA initially decided In re Flores-Munoz, 2004 WL 2418626 (BIA Aug. 27, 2004), in accordance with Jimenez-Lopez. In the course of its unpublished decision, the BIA wrote what had, by 2004, become a virtual boilerplate:

The rules and procedures for adjustment to permanent status under section 210(a)(2) of the Act [8 U.S.C. § 1160(a)(2)] differ from those relating to adjustment of status under section 245 of the Act [8 U.S.C. § 1227], Whereas adjustment pursuant to section 245 of the Act requires that an alien be admissible to the United States at the time of his adjustment to lawful permanent residence, adjustment pursuant to section 210(a)(2) of the Act has no such requirement. Instead, pursuant to section 210(a)(1)(C) of the Act, an alien’s admissibility to the United States is determined as of the time of his adjust ment to that of lawful temporary resident. ... After the alien has been granted lawful temporary resident status under section 210(a)(1) of the Act, section 210(a)(2) mandates that his status be adjusted to that of lawful permanent resident based on a fixed schedule and without further reference to his admissibility. See ... Matter of Jimenez-Lopez, 20 I & N Dec. 738, 742 (BIA 1993)[.]

After the decision of the three-judge panel in this case, the government moved to reopen in Flores-Munoz. In an unpublished decision granting the motion, the BIA wrote:

Initially, we note that in our August 27, 2004, decision, we determined that pursuant to section 210(a)(1)(C) of the Act, an alien’s admissibility is determined at the time of adjustment to lawful temporary status and is not revisited as subsequent adjustment to lawful permanent status is based upon a fixed schedule without further reference to admissibility. However, the United States Court of Appeals for the Ninth Circuit has recently held that adjustment of status occurs on the date of the automatic adjustment to lawful permanent status under [the SAW program], rather than on the earlier date when the alien received lawful temporary status. See Perez Enriquez v. Ashcroft, 383 F.3d 994 (9th Cir.2004). Accordingly, the DHS motion is granted[.]

In re Flores-Munoz, 2005 WL 1104190 (BIA Mar. 25, 2005).

In its second decision in Flores-Munoz, the BIA gave no other reason than the decision of the three-judge panel for reversing its long and consistent line of decisions based on Jimenez-Lopez. We have no doubt that, left to its own devices, the BIA would have continued to adhere to its decision in Jimenez-Lopez and later cases, for the BIA made clear that its second decision in Flores-Munoz was compelled by the decision of the three-judge panel of this court. We now hold, on en banc consideration, that this decision of the three-judge panel was incorrect. In this circumstance, we have no reason to remand this case to the BIA under Ventura.

Conclusion

Based on the text of 8 U.S.C. § 1160(a), the BIA’s decision in Jimenez-Lopez construing that text, and the BIA’s consistent application of Jimenez-Lopez in later decisions, we hold that admissibility for an agricultural worker under the SAW program is determined as of the date of adjustment of status to lawful temporary resident under § 1160(a)(1). Admissibility is not redetermined as of the date of automatic adjustment of status to lawful permanent resident under § 1160(a)(2). We therefore grant Perez-Enriquez’s petition for review, vacate the order of removal, and remand to the BIA for appropriate further proceedings.

PETITION GRANTED; REMANDED.

Footnotes

1

. The Immigration and Naturalization Service has since been replaced by the Department of Homeland Security. Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135.