Minto v. Jefferson Sessions
2017 U.S. App. LEXIS 6521
| 9th Cir. | 2017Background
- CNMI (Northern Mariana Islands) immigration laws were federalized by the CNRA; U.S. immigration law applied to CNMI as of November 28, 2009.
- Minto, a Bangladeshi national, arrived in CNMI in 1997 on CNMI-issued permits and later held a 706D entry permit as a spouse of a CNMI resident.
- The CNMI revoked Minto’s 706D permit in 2008 after convictions for conspiracy/solicitation related to marriage fraud (his wife was also convicted); Minto’s appeal of the revocation was pending/contested.
- DHS served Minto an NTA in May 2010 charging removability under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I); the IJ sustained the § 1182(a)(7) charge (inadmissible for lacking a valid entry document) and ordered removal.
- The BIA dismissed Minto’s appeal and denied his remand request for parole; Minto petitioned the Ninth Circuit arguing § 1182(a)(7) does not apply because he never applied for admission at a definite time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1182(a)(7) applies to an immigrant present in CNMI who never made a discrete application for admission | Minto: He never applied for admission at a definite time, so § 1182(a)(7) (lack of valid entry document "at time of application") does not apply | Government: CNMI became part of U.S. immigration territory Nov. 28, 2009, and an alien present without admission is "deemed" an applicant for admission; application is continuing | Held: An alien present in CNMI is deemed an applicant for admission; continuing application doctrine applies, so § 1182(a)(7) applies and Minto lacked a valid entry document |
| Whether applying § 1182(a)(7) to CNMI residents conflicts with Congress’s intent in the CNRA | Minto: Applying § 1182(a)(7) undermines CNRA’s protections for aliens lawfully present during transition | Government: CNRA excepted limited protections (e.g., temporary bar under § 1182(a)(6)) but otherwise made INA grounds apply; CNRA provides other relief mechanisms (nonimmigrant program, parole) | Held: Applying § 1182(a)(7) does not contravene CNRA; CNRA expressly preserved INA removability except as specified and provided alternative programs |
Key Cases Cited
- De Martinez v. Ashcroft, 374 F.3d 759 (9th Cir.) (standard of review: BIA legal determinations de novo; factual findings substantial-evidence review)
- Gallegos-Vasquez v. Holder, 636 F.3d 1181 (9th Cir.) (substantial-evidence review of BIA factual findings)
- Kumar v. Holder, 728 F.3d 993 (9th Cir.) (reviewing BIA and IJ reasoning together)
- Eche v. Holder, 694 F.3d 1026 (9th Cir.) (CNRA made CNMI part of United States for immigration law purposes)
- United States v. Yong Jun Li, 643 F.3d 1183 (9th Cir.) (CNRA exceptions to application of immigration laws are limited to those explicitly set forth)
- Ali v. Reno, 22 F.3d 442 (2d Cir.) (application for admission treated as continuing; consider facts at time application is finally considered)
- Munoz v. Holder, 755 F.3d 366 (5th Cir.) (same continuing-application approach)
- Palmer v. I.N.S., 4 F.3d 482 (7th Cir.) (same continuing-application approach)