and Submitted October 11, 2018 Honolulu, Hawaii
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A087-957-047
Stephen Carl Woodruff (argued), Saipan, Commonwealth of the
Northern Mariana Islands; Janet H. King, King Law Offices,
Saipan, Commonwealth of the Northern Mariana Islands; for
Damiano (argued) and William C. Minick, Trial Attorneys;
Linda S. Wernery, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Before: Kim McLane Wardlaw, Marsha S. Berzon, and Mark J.
Bennett, Circuit Judges.
Catherine Lopena Torres's petition for review of a
decision of the Board of Immigration Appeals, the panel
concluded that, because it must follow the court's
binding precedent involving immigrants residing in the
Commonwealth of the Northern Mariana Islands (CNMI), Torres
was removable and ineligible for cancellation of removal.
a native and citizen of the Philippines, entered the CNMI as
a lawful guest worker at a time when the CNMI was enforcing
its own immigration laws pursuant to a covenant between it
and the United States establishing the CNMI as a Commonwealth
of the United States. Effective November 28, 2009, U.S.
immigration laws were imposed on the territory, but Congress
enacted a two-year reprieve during which immigrants who had
been lawfully present in the CNMI under CNMI law on the
effective date would not be deported under 8 U.S.C. §
1182(a)(6)(A)(i) for not having been admitted or paroled into
the United States.
2010, Torres was placed in removal proceedings, and the BIA
determined that she was removable under 8 U.S.C. §
1182(a)(7)(A)(i)(I) as an alien who "at the time of
application for admission" lacked a "valid entry
document." The BIA also concluded that she was
ineligible for cancellation of removal.
panel concluded that substantial evidence supported the
BIA's decision that Torres was removable under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). The panel explained that this
court held in Minto v. Sessions, 854 F.3d 619 (9th
Cir. 2017), cert. denied, 138 S.Ct. 1261 (2018),
that although Congress's two-year reprieve protected
immigrants like Torres from removability under 8 U.S.C.
§ 1182(a)(6)(A)(i) on the basis that they had not been
admitted or paroled into the United States, it did not exempt
them from removal based on other grounds of removability.
Therefore, the reprieve offered Torres no protection from the
charge that, under 8 U.S.C. § 1182(a)(7)(A)(i)(I), she
was an immigrant who "at the time of application for
admission" lacked a "valid entry document."
panel concluded that substantial evidence also supported the
BIA's determination that Torres failed to establish the
ten years of continuous presence in the United States
required for cancellation of removal. In so concluding, the
panel explained that in Eche v. Holder, 694 F.3d
1026 (9th Cir. 2012), this court held that residence in the
CNMI before U.S. immigration law became effective does not
count toward the residence required for naturalization as a
the panel concluded that it lacked jurisdiction to consider
Torres's request to remand her case to the agency to
determine whether United States Citizenship and Immigration
Services should grant her application for parole-in-place.
Judge Berzon, joined by Judges Wardlaw and Bennett, wrote
separately because she believes that Minto v.
Sessions was wrongly decided. Judge Berzon wrote that
Minto rendered meaningless Congress's grant,
under 48 U.S.C. § 1806(e), of the two-year respite from
removal for aliens present without admission or parole. Under
Minto, Judge Berzon wrote, the very people
ostensibly protected from removal by Congress were not
actually protected- even if they could not be removed for
lack of a valid entry, under Minto they were
removable for lack of a valid entry document. Judge
Berzon wrote that this holding requires a tortured definition
of "application" for admission, ...