925 F.3d 1360
9th Cir.
2019
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Background

  • Catherine Lopena Torres, a Filipino national, entered and lived in the Commonwealth of the Northern Mariana Islands (CNMI) as a lawful guest worker beginning in 1997.
  • The Consolidated Natural Resources Act of 2008 (CNRA) made U.S. immigration law applicable to the CNMI effective November 28, 2009, and included a two-year reprieve protecting certain CNMI residents from removal under INA § 212(a)(6)(A).
  • DHS issued a Notice to Appear in 2010 charging Torres as removable under INA § 212(a)(6)(A) (present without admission or parole) and INA § 212(a)(7)(A)(i)(I) (immigrant at time of application for admission lacked valid entry document).
  • The Immigration Judge (IJ) ordered removal, the BIA affirmed, finding Torres an "applicant for admission" as of the CNRA effective date, removable under § 212(a)(7)(A)(i)(I), ineligible for cancellation of removal because CNMI residence pre-effective date does not count toward the ten-year continuous presence requirement, and that parole-in-place determinations are outside the agency’s jurisdiction.
  • The Ninth Circuit panel denied Torres’s petition for review, applying circuit precedent (Minto and Eche) and holding that substantial evidence supports the BIA’s determinations.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Removability under INA § 212(a)(7)(A)(i)(I) (no valid entry document at time of application for admission) Torres argued the CNRA two-year reprieve prevents removability for lack of admission/parole and thus she should not be treated as an applicant for admission for § 212(a)(7) purposes. Government argued Torres is "deemed" an applicant for admission after CNRA effective date and lacked any valid entry document, so removable under § 212(a)(7). Court affirmed: under Minto, Torres is an applicant for admission and removable under § 212(a)(7)(A)(i)(I).
Effect of CNRA reprieve (§ 1806(e)) on other INA grounds Torres contended the reprieve should shield her from removal on related admission-based grounds. Government contended the reprieve only prevents removal under § 212(a)(6)(A) and does not bar other INA inadmissibility grounds. Court held reprieve does not exempt CNMI residents from other INA grounds; Minto controls.
Eligibility for cancellation of removal (ten years continuous presence) Torres argued her CNMI residence should count toward the ten-year continuous presence requirement. Government relied on Eche and CNRA construction to exclude pre-effective CNMI residence from counting. Court held Torres ineligible because CNMI residence before U.S. immigration law’s effective date does not count.
Parole-in-place application / remand jurisdiction Torres requested remand to have USCIS consider parole-in-place under INA § 212(d)(5)(A). Government and BIA noted parole authority is discretionary and delegated to DHS/USCIS and is not reviewable by IJ/BIA or the court. Court denied remand: parole determinations are discretionary and unreviewable by the agency/court.

Key Cases Cited

  • Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017) (deeming CNMI residents applicants for admission for § 1225 purposes and holding reprieve does not shield from § 212(a)(7) inadmissibility)
  • Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012) (CNMI residence before U.S. immigration law effective date does not count toward continuous residence requirements)
  • Alcaraz v. I.N.S., 384 F.3d 1150 (9th Cir. 2004) (exception for considering issues raised first in reply brief when opposing party not prejudiced)
  • Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (parole determinations are discretionary and results unreviewable by IJs)
  • Garcia-Mendez v. Lynch, 788 F.3d 1058 (9th Cir. 2015) (BIA precedent deference discussion)
  • Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353 (11th Cir. 2013) (§ 212(a)(7) inapplicable to individuals already in U.S. seeking adjustment of status)
  • Marques v. Lynch, 834 F.3d 549 (5th Cir. 2016) (aligning with Ortiz-Bouchet on § 212(a)(7) scope)
  • Hibbs v. Winn, 542 U.S. 88 (2004) (statutory interpretation: avoid rendering statutory provisions superfluous)
  • Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel bound by circuit precedent; en banc or Supreme Court needed to overturn)
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