38 F.4th 785
9th Cir.2022Background
- Hernandez, a Salvadoran national, was granted NACARA §203 "special rule" cancellation of removal and adjusted to LPR status in 2002 by INS.
- In 2014 he pled no contest to methamphetamine possession under California law; DHS served a Notice to Appear in 2015 and the IJ found him removable.
- Hernandez applied for cancellation of removal under 8 U.S.C. §1229b(a) in 2016; DHS argued he was barred by §1229b(c)(6) because he already received NACARA cancellation.
- The IJ denied relief as barred by §1229b(c)(6); the BIA affirmed, holding NACARA §203 relief is "under" §1229b and thus triggers the statutory bar.
- Hernandez petitioned for review, arguing (1) his NACARA grant was only an adjustment of status (not a §1229b cancellation) and (2) §1229b(c)(6) applies only to aliens who previously underwent removal proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a NACARA §203 "special rule" cancellation counts as a cancellation under 8 U.S.C. §1229b (triggering §1229b(c)(6) bar) | NACARA grant was an administrative adjustment, not a §1229b cancellation; §1229b(c)(6) shouldn't bar NACARA recipients | NACARA §203 expressly makes NACARA relief "subject to the provisions of" §1229b, so special-rule cancellation is cancellation "under this section" | The court held NACARA §203 cancellation is a cancellation under §1229b and §1229b(c)(6) bars a second cancellation |
| Whether prior formal removal proceedings are required before a cancellation can count under §1229b(c)(6) | §1229b(c)(6) only applies to aliens who previously were in removal proceedings (so NACARA administrative grants shouldn't trigger the bar) | Statutory text and NACARA do not require prior initiation or finalization of removal proceedings; cancellation can be granted administratively and still cancel an anticipated removal | The court held the statute does not require prior removal proceedings; NACARA cancellation qualifies as a prior cancellation under §1229b(c)(6) |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (establishing Chevron framework for reviewing agency statutory interpretations)
- Skidmore v. Swift & Co., 323 U.S. 134 (describing non-controlling deference based on persuasiveness of agency views)
- Garcia-Mendez v. Lynch, 788 F.3d 1058 (construing NACARA/cancellation relationship and that adjustment follows cancellation)
- Monroy v. Lynch, 821 F.3d 1175 (treating NACARA relief as "relief under" §1229b for jurisdictional review)
- Sejdini v. Holder, 714 F.3d 399 (6th Cir. holding NACARA special-rule cancellation is the same as §1229b cancellation)
- Pereira v. Sessions, 138 S. Ct. 2105 (referenced for principles of statutory interpretation regarding immigration provisions)
- Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (principle to interpret related statutes as a coherent whole)
- Orellana v. Barr, 967 F.3d 927 (applying Skidmore deference to BIA reasoning)