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Campos-Hernandez v. Sessions

United States Court of Appeals, Ninth Circuit

May 2, 2018

Manuel Campos-Hernandez, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

         FOR PUBLICATION

          Argued and Submitted February 15, 2018 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A094-199-373

          Louis A. Gordon (argued), Law Offices of Louis A. Gordon, Los Angeles, California; Edgardo Quintanilla, Quintanilla Law Firm ALC, Sherman Oaks, California; for Petitioner.

          Kohsei Ugumori (argued), Senior Litigation Counsel; Emily Anne Radford, Assistant Director; Joyce R. Branda, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Sharon L. Gleason, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel denied Manuel Campos-Hernandez's petition for review of a decision of the Board of Immigration Appeals, concluding that he was ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA).

         To be eligible for cancellation of removal under NACARA, an applicant who is inadmissible on certain criminal grounds, like Campos-Hernandez, is subject to a heightened physical presence requirement such that he must establish that he "has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal." NACARA § 203(b); 8 C.F.R. § 1240.66(c)(2). The BIA concluded that Campos-Hernandez's 2008 conviction was a ground of removal, and because ten years had not elapsed between 2008 and the decision of the BIA, he was not eligible for cancellation of removal under NACARA.

         After briefing in this appeal, the BIA held, in Matter of Castro-Lopez, 26 I. & N. Dec. 693 (BIA 2015), a precedential opinion in a different immigration appeal, that continuous presence for cancellation of removal under NACARA "should be measured from the alien's most recently incurred ground of removal."

          The question before the panel in Campos-Hernandez's case was which act or status constituting a ground for removal-the first, last, or any other-starts the clock for the ten-year "heightened" physical presence requirement.

         The panel first determined that, under Nat'l Cable & Telecommc'ns Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005), the panel was not bound by this court's contrary interpretation of identical language in the now-superseded suspension of deportation statute in Fong v. INS, 308 F.2d 191 (9th Cir. 1962), concluding that Fong did not hold that a contrary interpretation was foreclosed.

         Second, the panel deferred to Matter of Castro-Lopez. As a preliminary matter, the panel concluded that Matter of Castro-Lopez involved the interpretation of a statute, not a regulation, because the regulation copies verbatim the relevant statutory text from NACARA. The panel also determined that NACARA § 203(b) was silent or ambiguous with respect to the issue here. Further, the panel concluded that the BIA's interpretation was reasonable, noting that the use of indefinite articles in NACARA § 203(b)-(i.e., "an act, " "a status, " as opposed to "the act, " "the status") grants the words an indefinite or generalizing force. Thus, the panel concluded that it is reasonable to interpret the requisite ten-year period to immediately follow each disqualifying act or status, rather than to follow a single particularized act or status-the first one, as Campos-Hernandez would read the statute.

         The panel also observed that reading the continuous physical presence requirement to run from the last act or status, rather than the first, avoids consequences that would frustrate the evident policy behind the requirement; under the opposite reading, individuals most likely to continue committing crimes, as evidenced by their very recent behavior, would be eligible to stay in the country, but individuals who had not committed any crime for eight or nine years would not.

          OPINION

          BERZON, Circuit Judge:

         To qualify for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), [1] an undocumented immigrant must show he has been "physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal." NACARA § 203(b); see 8 C.F.R. ยง 1240.66(c)(2). When Manuel Campos-Hernandez applied for NACARA special rule cancellation, the BIA interpreted the physical presence requirement as running from Campos-Hernandez's most recent disqualifying conviction, rather than his earliest, and so held him ineligible ...


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