Catherine Torres v. William Barr
976 F.3d 918
| 9th Cir. | 2020Background
- Congress extended the Immigration and Nationality Act (INA) to the Commonwealth of the Northern Mariana Islands (CNMI) effective November 28, 2009, creating potential removal exposure for many CNMI residents who had previously lacked U.S. immigration papers.
- Catherine Lopena Torres lawfully entered the CNMI as a guest worker in 1997, lived and worked there for years, and had U.S.-citizen children born in the CNMI.
- After the INA took effect, DHS charged Torres with removability under 8 U.S.C. § 1182(a)(6) (present without admission or parole) and § 1182(a)(7) (lacking a valid entry document “at the time of application for admission”). The IJ and BIA ordered removal under § 1182(a)(7).
- A Ninth Circuit panel had previously followed Minto v. Sessions (854 F.3d 619) to treat certain persons present but not admitted as "applicants for admission" for § 1182(a)(7), but the en banc court voted to rehear and reconsider that precedent.
- The en banc Ninth Circuit overruled Minto, holding that the phrase “at the time of application for admission” in § 1182(a)(7) refers to the specific moment an immigrant applies to enter the United States (a port-of-entry act), not a continuing status while physically present without admission.
- The court granted Torres’s petition as to § 1182(a)(7), affirmed the BIA’s rulings that she was ineligible for cancellation of removal (failed to prove ten years’ continuous U.S. presence) and that parole-in-place is discretionary/unreviewable, and remanded for the agency to determine removability under § 1182(a)(6) and whether Torres was “lawfully present” in the CNMI during the CNRA two-year reprieve.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “at the time of application for admission” in § 1182(a)(7) | Torres: means the moment an alien actually applies to enter the U.S.; she never did that, so § 1182(a)(7) does not apply | Government: the phrase can be read continuously or tied to being an "applicant for admission" under § 1225(a)(1), covering those present but not admitted | Court: phrase means the specific point when one seeks entry (port-of-entry); § 1182(a)(7) did not apply to Torres |
| Effect of § 1225(a)(1) deeming provision on § 1182(a)(7) | Torres: § 1225(a)(1) is procedural for removal hearings and does not convert the substantive timing reference in § 1182(a)(7) into a continuing application | Government: § 1225(a)(1) makes present-but-not-admitted persons "applicants for admission," so § 1182(a)(7) can reach them | Court: § 1225(a)(1) creates a procedural/legal status for hearings; it does not change the substantive meaning of "application for admission" in § 1182(a)(7) |
| Preservation of CNRA two-year reprieve and avoidance of statutory surplusage | Torres/amici: treating § 1182(a)(7) as continuous would nullify § 1182(a)(6) and defeat Congress’s CNRA reprieve and protections like VAWA | Government: Congress need not worry because it can exercise prosecutorial discretion | Court: avoids an interpretation that renders other provisions (§ 1182(a)(6), CNRA reprieve, VAWA protections) superfluous; chooses reading preserving their effect |
| Relief / remand issues (cancellation, parole, § 1182(a)(6)) | Torres: seeks remand or relief; argues lawful CNMI presence and requests consideration of parole-in-place | Government: BIA correctly denied cancellation and parole issues are discretionary/unreviewable | Court: denies cancellation (insufficient continuous presence); notes parole is discretionary/unreviewable; remands to BIA to decide § 1182(a)(6) removability vis-à-vis CNRA lawful-presence question |
Key Cases Cited
- Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017) (prior panel decision treating certain present-but-not-admitted persons as applicants for admission)
- Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353 (11th Cir. 2013) (held § 1182(a)(7) inapplicable to persons already in the U.S. seeking adjustment)
- Marques v. Lynch, 834 F.3d 549 (5th Cir. 2016) (adopted Eleventh Circuit’s construction limiting § 1182(a)(7) to port-of-entry applicants)
- United States ex rel. Claussen v. Day, 279 U.S. 398 (1929) (understanding of "entry" as coming from outside into the U.S.)
- United States v. Hooper, 229 F.3d 818 (9th Cir. 2000) ("at the time" imposes a temporal point-in-time requirement)
- Yin Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (discussing the historical ‘‘entry doctrine’’ and IIRIRA’s repeal of deportation/exclusion distinctions)