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Torres v. Barr

United States Court of Appeals, Ninth Circuit

June 12, 2019

Catherine Lopena Torres, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted October 11, 2018 Honolulu, Hawaii

          On 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 Petitioner.

          Lisa 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.

         SUMMARY[*]

         Immigration

         Denying 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.

         Torres, 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.

         In 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.

         The 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."

         The 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 U.S. citizen.

         Finally, 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.

         Concurring, 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, ...


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