Sigifredo Quezada Ibarra v. Dos

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2022
• Docket: 21-55271
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SIGIFREDO QUEZADA IBARRA; No. 21-55271 JASMIN QUEZADA-PENA, D.C. No. Plaintiffs-Appellants, 2:20-cv-01909-FMO-DFM

v. MEMORANDUM* UNITED STATES DEPARTMENT OF STATE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted January 13, 2022 Pasadena, California

Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF,** District Judge.

Plaintiffs Sigifredo Quezada Ibarra and Jasmin Quezada-Pena challenge the

Department of State’s policy of refusing to apply the so-called “minor exception”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Page 2 of 4

found at 8 U.S.C. § 1182(a)(9)(B)(iii)(I) to those found inadmissible under 8

U.S.C. § 1182(a)(9)(C)(i)(I). The district court held that plaintiffs’ statutory claim

was barred by the doctrine of consular nonreviewability, and that their

constitutional claim failed because they did not allege bad faith conduct by the

consular official. We affirm.

1. We need not decide whether plaintiffs’ statutory claim is barred by the

doctrine of consular nonreviewability. See Allen v. Milas, 896 F.3d 1094, 1102

(9th Cir. 2018) (holding that the doctrine is not a jurisdictional limit). Even

assuming that plaintiffs’ statutory challenge is reviewable, we conclude that it fails

on the merits.

We agree with plaintiffs that 8 U.S.C. § 1182(a)(9)(C) is ambiguous and that

the government’s interpretation of the statute is entitled to deference, if at all, only

under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The government’s

interpretation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), because it appears only in

an interoffice memorandum from United States Citizenship and Immigration

Services. See Ketchikan Drywall Services, Inc. v. Immigration & Customs

Enforcement, 725 F.3d 1103, 1112–13 (9th Cir. 2013) (granting Skidmore

deference to an INS memorandum after considering factors including the

thoroughness and validity of the agency’s reasoning and its overall power to Page 3 of 4

persuade).

Under Skidmore, we find the government’s interpretation persuasive.

Although the definition of “unlawful presence” is the same in subsections (a)(9)(B)

and (a)(9)(C), see Acosta v. Gonzales, 439 F.3d 550, 557 (9th Cir. 2006), overruled

on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012),

the memorandum notes that the minor exception in subsection (a)(9)(B) applies by

its terms only when “determining the period of unlawful presence in the United

States under clause (i).” 8 U.S.C. § 1182(a)(9)(B)(iii)(I). That language appears to

limit the applicability of the minor exception to those who are found inadmissible

under subsection (a)(9)(B). In addition, the memorandum notes that the grounds of

inadmissibility listed under subsection (a)(9)(C) rest on the comparatively more

serious violation of multiple illegal entries, making those violations “more culpable

than mere unlawful presence” and supporting the position that Congress intended

the two grounds to be treated differently. This conclusion is bolstered by our

decision in Acosta, where we declined to import the waiver provision found in

subsection (a)(9)(B)(v) to subsection (a)(9)(C), relying heavily on the fact that the

(a)(9)(B)(v) waiver expressly references “clause (i).” 439 F.3d at 557–58.

We recognize that the government’s reading of the statute leads to unjust

results, with this case being a prime example. Quezada Ibarra has lived

continuously in the United States since 2006. He and his wife, a U.S. citizen, have Page 4 of 4

two U.S. citizen children, and another of his daughters, who is a lawful permanent

resident, also lives with the family. Yet he is now barred from returning to the

United States for 10 years because of an illegal entry that occurred when he was

four years old. No sound policy justification appears to support separating a

family in these circumstances. But, as we have explained, Congress drafted

subsections (a)(9)(B) and (a)(9)(C) in a way that contradicts plaintiffs’

interpretation.

2. The district court correctly dismissed plaintiffs’ constitutional claim

because the denial of Quezada Ibarra’s visa was facially legitimate and bona fide.

The government cited two valid statutes of inadmissibility with discrete factual

predicates justifying the denial, namely 8 U.S.C. §§ 1182(a)(9)(B)(i)(II) and

1182(a)(9)(C)(i)(I). See Cardenas v. United States, 826 F.3d 1164, 1172 (9th Cir.

2016). The burden then shifted to plaintiffs to plausibly allege that the consular

official acted in bad faith. They have not done so despite being afforded an

opportunity to amend their complaint.

AFFIRMED.