Argued and Submitted, San Francisco, California February 14, 2014.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A072-400-647.
PETITION FOR REVIEW GRANTED AND REMANDED.
The panel granted Jorge Dario Aragon-Salazar's petition for review of the Board of Immigration Appeals' decision finding that he was statutorily ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act because he failed to establish good moral character during the requisite seven-year period.
As a matter of first impression, the panel held that an application for NACARA special rule cancellation is not a continuing application, and that the seven-year period during which good moral character is required under NACARA ends on the date of the filing of the application. The panel held that if Aragon gave false testimony, he did so after the seven-year period, and the panel accordingly granted his petition and remanded for further proceedings.
Dissenting, Judge Callahan would affirm the BIA's determination that Aragon lacks good moral character, and would deny his petition. Judge Callahan would find NACARA § 203 ambiguous, and further disagreed with the majority's holding that an applicant's responsibility to maintain good moral character vanishes upon the filing of an application for relief.
Bobby Glenn Bell, Jr. (argued), Oakland, California, for Petitioner.
David H. Wetmore (argued) and Matt A. Crapo, United States Department of Justice, Washington, D.C., for Respondent.
Before: Consuelo M. Callahan and Milan D. Smith, Jr., Circuit Judges, and Edward R. Korman, Senior District Judge.[*] Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Callahan.
M. SMITH, Circuit Judge:
Jorge Dario Aragon-Salazar (Aragon), a native and citizen of Guatemala, petitions for review of a decision by the Board of Immigration Appeals (BIA), affirming the Immigration Judge's (IJ) denial of his application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997). The IJ and BIA denied Aragon's application on the ground that his false testimony prevented him from establishing good moral character during the seven-year period required by NACARA in order to be eligible for special rule cancellation of removal. As a matter of first impression in our circuit, we hold that an application for special rule cancellation of removal under NACARA is not a continuing application, and that the seven-year period during which good moral character is required under NACARA ends on the date of the filing of the application. In this case, if Aragon gave false testimony, he did so after the requisite seven-year period. Accordingly, we grant the petition for review, and remand for further proceedings.
LEGAL, FACTUAL, AND PROCEDURAL BACKGROUND
I. Statutory Structure
Section 203 of NACARA establishes rules to permit certain classes of aliens, including some from Guatemala, to apply for relief from removal under what is titled " Special Rule for Cancellation of Removal." NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (NACARA § 203). In enacting NACARA, Congress relaxed the requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, for cancellation of removal for such aliens by applying the less stringent pre-IIRIRA requirements. See Barrios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009); Munoz v. Ashcroft, 339 F.3d 950, 955-56 (9th Cir. 2003).
Under § 309(f) of IIRIRA, as amended by NACARA § 203, the Attorney General has discretion to " cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence" an alien who, inter alia:
(i) is not inadmissible or deportable under paragraph (2) or (3) of section 212(a) or paragraph (2), (3), or (4) of section 237(a) of the Immigration and Nationality Act and is not an alien described in section 241(b)(3)(B)(i) of such Act;
(ii) has been physically present in the United States for a continuous period of not less than 7 years immediately preceding the date of such application;
(iii) has been a person of good moral character during such period; and
(iv) establishes that removal would result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
IIRIRA § 309(f), as amended by NACARA § 203, amended by Pub. L. No. 105-139, 111 Stat. 2644, 2644-45 (1997). No
person " who has given false testimony for the purpose of obtaining any [immigration] benefits" during the relevant period for which good moral character is required shall be found to be a person of good moral character. 8 U.S.C. § 1101(f)(6).
If an application for NACARA special rule cancellation of removal was treated as a continuing application, an applicant would be required to show good moral character up to the point that a final administrative decision is issued in order to meet NACARA's requirement. See In re Garcia, 24 I. & N. Dec. 179, 183 (B.I.A. 2007). If, however, an application for NACARA special rule cancellation of removal is not a continuing application, ...