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Minto v. Sessions

United States Court of Appeals, Ninth Circuit

April 17, 2017

Minto, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted February 23, 2017

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A087-957-024

          Joseph E. Horey (argued), O'Connor Berman Dotts & Banes, Saipan, Commonwealth of the Northern Mariana Islands, for Petitioner.

          Jessica E. Burns (argued), Senior Litigation Counsel; Ashley Martin, Trial Attorney; Mary Jane Candaux, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Alex Kozinski, Michael Daly Hawkins, and Carlos T. Bea, Circuit Judges.

         SUMMARY[*]

         Immigration

         The panel denied Minto's petition for review of the Board of Immigration Appeals' decision finding him inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because he lacked a valid entry document "at the time of application for admission."

         The panel held that Minto is an immigrant who lacked a valid entry document. The panel also held that he is deemed by law to have made a continuing application for admission because he was in the Commonwealth of the Northern Mariana Islands without admission or parole on November 28, 2009, the date United States immigration laws became applicable to the CNMI. The panel held that the Immigration Judge and BIA therefore correctly concluded that Minto was inadmissible under 8 U.S.C. § 1182(a)(7).

          OPINION

          BEA, Circuit Judge

         In 2009, the immigration laws of the United States took effect in the Commonwealth of the Northern Mariana Islands ("CNMI"), a group of islands in the Pacific Ocean.[1] An immigration judge ("IJ") then ordered Minto, [2] who was in the CNMI, removed on the basis of 8 U.S.C. § 1182(a)(7)(A)(i)(I), which makes an immigrant inadmissible if he lacks a valid entry document "at the time of application for admission." The Board of Immigration Appeals ("BIA") dismissed Minto's subsequent appeal. He now petitions this Court for review, arguing that 8 U.S.C. § 1182(a)(7)(A)(i)(I) does not apply to him because he never applied for admission to the United States at a definite time. We deny Minto's petition for review because we conclude that he is an immigrant who lacked a valid entry document and is deemed by law to have made a continuing application for admission by being present in the CNMI, an application that was considered and denied during his removal proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         A. The Commonwealth of the Northern Mariana Islands

         Previously Spanish possessions, the Northern Mariana Islands first came under United States control after World War II. See U.S. ex re l. Richards v. De Leon Guerrero, 4 F.3d 749, 751 (9th Cir. 1993). In 1976, Congress, the Northern Mariana Islands District Legislature, and the people of the Northern Mariana Islands approved a Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (the "Covenant"). See Pub. L. No. 94-241, 90 Stat. 263, 265-66 (1976) (joint resolution of Congress approving the Covenant and setting out its text). Under the Covenant, the new Commonwealth of the Northern Mariana Islands delegated "complete responsibility" for some matters-such as foreign affairs and defense-to the United States, but retained "the right of local self-government . . . with respect to internal affairs." Covenant art. 1, §§ 103-104.

         Initially, immigration was reserved to the CNMI. See Covenant § 503(a) ("The following laws of the United States . . . will not apply to the Northern Mariana Islands . . .: (a) [] the immigration and naturalization laws of the United States."). This changed in 2008 when Congress passed the Consolidated Natural Resources Act ("CNRA"), codified in relevant part at 48 U.S.C. §§ 1806-1808. The CNRA provided that the "immigration laws"[3] of the United States "shall apply" to the CNMI no later than December 1, 2009. See id. § 1806(a)(1) (setting June 1, 2009 as the "transition program effective date"-that is, the date that the U.S. immigration laws would take effect in the CNMI); id. § 1806(a)(3) (authorizing the Secretary of Homeland Security to "delay[] [the transition program effective date] for a period not to exceed more than [sic] 180 days after such date"). U.S. immigration laws became applicable to the CNMI on November 28, 2009. See 8 C.F.R. § 1001.1(bb). Also, the CNRA "made the CNMI part of the United States within the meaning of the Immigration and Nationality Act." Eche v. Holder, 694 F.3d 1026, 1027 (9th Cir. 2012) (citing CNRA § 702, Pub. L. No. 110-229, 122 Stat. 754, 866 (2008); 8 U.S.C. § 1101(a)(36), (a)(38)). Therefore, since November 28, 2009, the CNMI has been part of the United States for purposes of the immigration laws.

         B. Minto's ...


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