*1 56(f) to Rule pursuant continuance to anywhere close not come certainly does of Civil Procedure. Rules Federal Indeed, say we cannot holding. a such have ruled would Court Supreme how the had not filed in Carden challenger
if the Administrative under the challenge
timely under a differ had sued or
Procedure Act reason, we that entirely. For statute
ent ruling in Guidiville. to our
must adhere directly over does not
Because Carderi NEGRETE-RAMIREZ, Guidiville, rely on Carderi we cannot Juana rule Petitioner, controlling precedent our negate See us. the issue before directly answers v. (9th Gammie, Miller v. HOLDER, Jr., H. Eric held, banc). Cir.2003) (en “as we have As General, Respondent. prior circuit our can long as we in running afoul
precedent without No. 10-71322. so.” Lair we do authority, must tervening Appeals, States Court Bullock, Cir. F.3d Ninth Circuit. (citation 2012) quotation and internal omitted). au intervening if Even marks Dec. and Submitted Argued our with “some tension” creates thority 21, 2014. Filed Jan. prece on our doubt” “cast[s] precedent or prece our dent, still adhere we must intervening Indeed, unless
dent. standard” of “high
authority meets with our prec “clearly inconsistent”
being
edent, from our authori depart we cannot omitted). (citations
ty. Id. overruled wise no
Because Carderi of 25 U.S.C. prior
our IGRA in to address purported challenge untimely
way, or considered lands, it not of trust the designation we precedent, our
inconsistent ruling Guidiville by our
are bound in IGRA purpose of
Indian lands for a tribe at held in trust lands
cludes See Guidi gaming contract.
time of the
ville, F.3d at 774-75. view, in Guidiville our my decision le- challenge to the State’s
forecloses the I would affirm trust.
gality summary judg- entry of
district court’s Ranchería Lagoon Big
ment in favor motion for State’s
and its denial *2 Holder, F.3d 384-89 Cir. and Rachael (argued) K. Mehr Michael General, California, 2012); Cruz, Peti- Lanier Keast, Santa E. (11th Cir.2011); Martinez F.3d 1365-67
tioner. 532, 541-46 Mukasey, 519 F.3d v . (argued) Hickein Halliday Laura *3 (5th Cir.2008). grant petition We D.C., for Re- Canter, Washington, Nancy BIA with in remand to the review and spondent. Immigration remand to the structions to (“IJ”) Negrete-Ramirez so that Judge 212(h) waiver. may seek a I. F. DIARMUID Before:
O’SCANNLAIN, E. COWEN* ROBERT into the was admitted Negrete-Ramirez BERZON, Circuit S. and MARSHA as defined 8 U.S.C. Judges. on a B2 visitor April 1996 adjusted her sta- subsequently visa. She OPINION resident that of a lawful tus to
COWEN, Judge: Circuit later, (“LPR”). Negrete-Ra- years Four for re petitions Negrete-Ramirez Juana contendré to two pleaded nolo mirez Immigration Appeal’s Board of view of the committing upon a lewd act counts (“BIA”) appeal. dismissing her order 288(a) of the of Section child in violation BIA that contends Negrete-Ramirez 2009, January California Penal Code. statutory determining
erred and was returning from abroad she was National Immigration and of the language into the United paroled1 (“INA”) eligibili from excludes her ity Act Protection. and Customs Bureau of Border inadmissibility waiver an ty apply initiated proceedings were Removal 212(h) INA, U.S.C. 8 under Section served with after she was against her waiver”). 212(h) 1182(h) (“ In reach Ap- In the Notice to Appear. Notice to conclusion, misinterpreted the BIA its ing Homeland Securi- Department of pear, the 212(h) of INA language being inadmissible her with ty charged re A de novo precedent. Ninth Circuit 1182(a)(2)(A)(i)(I), as under 8 U.S.C. as well as view of involving moral a crime convicted of and our sister of this Court precedent turpitude. Neg- Circuits, leads to the conclusion hearing, the IJ found At the removal considered to be rete-Ramirez charged. removable Negrete-Ramirez v. Papazoglou waiver. See she would the IJ that she informed When 790, Holder, 792-94 Cir. 725 F.3d of cancellation in the form for relief apply Holder, 2013); 348- v. 699 F.3d Leiba 1229b, the IJ under 8 U.S.C. of removal (4th Cir.2012); Attorney Gen Hanif v. aggra- was for (3d conviction Cir.2012); held that her eral, F.3d 483-87 ineligible for she was General, felony, and vated Attorney Martinez v. Negrete-Ramirez removal. (3d Cir.2012); cancellation of Bracamontes 411-16 * not be Cowen, paroled ... shall who is 1. "An alien Unit- E. Senior Honorable Robert Circuit, been admitted.” to have considered Judge the Third Circuit ed States 1101(a)(13)(B) (defining "admission” designation. sitting by “admitted”). BIA,
appealed this decision to the but the statute, context of an unambiguous we record could not be located and the case need contemplate not deferring to the was develop remanded to a new record. agency’s interpretation.” Sig Barnhart v. Co., 438, 462, mon Coal 534 U.S. 122 S.Ct. remand, On Negrete-Ramirez made a (2002) 151 L.Ed.2d (citing Chev motion to the IJ to proceedings calendar ron, U.S.A., Inc. v. Natural Res. allow her to for a waiver. Def. Council, Inc., 837, 842-43, 467 U.S.
§A
granted
waiver is
at the discre
(1984)).
ply for a waiver. governing Circuits.The relevant §the text jurisdiction We have under 8 212(h) waiver is as 1252(a)(2)(D) U.S.C. to review legal granted question [n]o of whether Negrete-Ramirez is waivershall under follows: statutorily to for a subsection in the caseof an alien previously waiver. De novo review of a who been has lawfully begins construction with the text of the United Statesas an alien permanent See, statute. e.g., Holder, Hing Sum v. ad- residence mitted if for Cir.2010). [] 602 F.3d “In sincethe dateof such admission 350-51; ba, Hanif, at at 694 F.3d 699 F.3d an aggravat- been convicted alien has Bracamontes, 385-86; 484-85; 675 F.3d felony.... ed Martinez, Lanier, 1366-67; 631 F.3d 1182(h) (empha- 212(h), 8 U.S.C. INA refers at 543-44. The definition 519 F.3d added). observed the Ninth Circuit As sis entry into expressly it “is this exact analysis of in its passage its terms into denoting namely, phrases: into two distinct divisible entry. country port from abroad at ad- (1) been previously has ‘an alien who urges the Court government (2) ‘as an the United States’ mitted to in- “admitted” adopt a definition of resi- permanent lawfully admitted ” adjustment of status to post-entry cludes Sum, (quoting at 1095 dence.’ support argument, LPR. In of its 1182(h)).2 section The definitions U.S.C. cases cites three Ninth Circuit government definitions separate forth the INA sets and “admitted” interpret “admission” “admitted,” first phrase, used in the the INA to specific sections of as used 1101(a)(13), “lawfully ad- None of the adjustment of status. include residence,” id. mitted departure from the stat- involve a cases in the second as used of “admit- language definition *5 ute’s statutory lan- the analysis An of phrase. 212(h). § none of the in And ted” as used of effect assessment the requires an guage that statutory language cases involve meaning the these terms on of phrases, each into two distinct divisible Resolving the issue as a whole. provision art, in like that its own term of on wheth- primarily turns the Court before 212(h). § §in as understood “admitted” er case, Cuevas-Gaspar v. Gon- The first ad- post-entry Negrete-Ramirez’s includes (9th Cir.2005), zales, cannot F.3d 1013 430 justment of status. binding precedent be on as relied 1101(a)(13)(A): “Admit-
1. 8 U.S.C. an of status to adjustment that principle and “Admission” ted” the issue because LPR is “admission” “ad defines “admitted” The statute nor ad- the Court before was neither entry of the as “the lawful Cuevas-Gaspar, mission” the In by it.' dressed inspection and after may the United parent’s into that a status held Court by immigration unemancipated officer.” minor authorization to their imputed 1101(a)(13)(A) add remov- (emphasis of purposes of cancellation 8 U.S.C. child for 1229b(a). ed). contempo Id. at 1029. “ordinary, Applying the under 8 U.S.C. al on the premised meaning” analysis of this definition’s was rary, common The Court’s satis- petitioner does the would assumption it is limited and that reveals that terms requirement of of adjustment fy the removal encompass a cancellation post-entry not “after of continuous residence years v. Bruns 7 Servs. Co. of Pioneer Inv. status. if his any in status” admitted having P’ship, 507 U.S. been Assocs. Ltd.
wick LPR was (1993); adjustment of status see mother’s 123 L.Ed.2d 113 S.Ct. 1021-29. him. Id. at 792-93; imputed to Lei- at 725 F.3d Papazoglou,
also entry rather procedurally Sum, to a lawful ferred the Ninth Circuit the before In issue result, entry. As a substantively lawful petitioner, who was admitted the was whether than entry by entry point point of at a petitioner's the United States at into admission the perma- LPR; misrepresenting status as a lawful his there- as an States was into United resident, apply was nent fore, for a ineligible was he held waiver. The Court Sum, 602 F.3d 1094-1101. waiver. INA re- under the definition "admitted” issue of whether a post-entry tinguished threshold Ocampo-Duran and reversed adjustment of status to LPR is an the BIA’s determination that the date any “admi[ssion] status” was not men admission was the date on which peti- by Accordingly, tioned the Court. al adjusted tioner his status to lawful perma- though Cuevas-Gaspar might imply a nent residence petitioner because the had definition of broader “admitted” than that been admitted by as defined 8 U.S.C. in U.S.C. the Court did 1101(a)(13) adjusting before his status. not hold that of status is an 1148-49. The Shivaraman Court context, any “admission” in let alone the rejected the notion that an alien can have presently one before the Court. more than one date of admission pur- case, Supreme subsequently Court poses of the five year provision removal overruled Cuevas-Gaspar. See Holder v. 1227(a)(2)(A)®. Id. at 1149. — Gutierrez, -, Martinez U.S. Ocampo-Duran, Similar to in Garcia- 2011, 182 (2012). L.Ed.2d 922 Quintero Gonzales, The other two cases cited govern (9th Cir.2006), 1018-19 the Court held only fare slightly ment better. In Ocam petitioner who entered the United States po-Duran v. Ashcroft, 254 F.3d illegally, accepted was into the Family (9th Cir.2001), 1134-35 petitioner had Unity Program, adjusted and then his sta entered but was not LPR, tus to was in any “admitted status” defined U.S.C. purposes cancellation un removal § 1101(a)(13), was, like Negrete-Ramirez 1229b(a) der 8 U.S.C. when he ac was adjusting his before status to an LPR. The cepted into the Family Unity Program. petitioner argued that he was not remova *6 petitioner Like the in Ocampo-Duran, ble under 8 1227(a)(2)(A)(iii), U.S.C. Garcia-Quintero was never admitted de as “[a]ny which states who is alien convicted 1101(a)(13). by fined 8 U.S.C. Id. of an aggravated felony any at time after deportable,” admission is because he was Although the cases cited the according never “admitted” to 8 U.S.C. government “embrace[ ] alternative 1101(a)(13). at Notably, 1134. as construction of [admitted],” the term they opposed rejecting to petitioner’s narrow are consistent our prior with “recognition] interpretation 1101(a)(13), of 8 U.S.C. 101(a)(13)(A) section [of] as the primary, “reject[ed] the Court Ocampo-Duran’s ov controlling definition of statutory the erly-narrow Shivaraman, term.” 360 1227(a)(2)(A)(iii) F.3d at 1148. [§ it ]” because would cre- together, When viewed only the principle a loophole ate in removability for those gleaned from cases these is that who entered without in the inspection. Id. at absence of an admission as 1135. The Ninth defined later 8 expounded Circuit on U.S.C. reasoning this in on date which a Shivaraman v. Ash- 1142, adjusts croft, 360 F.3d from Cir.2004), 1148 unlawful to lawful pres 1101(a)(13)(A) stating that in “[§ ence the United plain- qualifies was States ] as ly inapplicable” to date of Ocampo-Duran’s admission for purposes case of remova- and that the bility Court “embraced an for committing aggravated alterna- felony tive construction or the term in order to cancellation of removal. In the ... avoid the absurd result [it] would be sections of the cases, INA at issue in these give forced to provision in the case of an individual’s simply admission is a tem aliens who country enter the unlawfully.” poral reference point for the statute’s sub Shivaraman, Id. In the Ninth Circuit dis- requirements: stantive commission
1053 laws, immigration such with the cordance presence, crime, years of continuous or 7 a having changed.” status not terms “admission” admission. since 1101(a)(20). encompasses term all are either This sections these “admitted” status”; LPRs, they obtained they regardless do not of whether or “in unqualified they separate to or'at the time prior that status phrase in the same appear byor adjusted status. entered the United States having physically reference already living their status while adjusting was ad: Negrete-Ramirez Because Negrete-Ra- like in the United as defined mitted into mirez. 1101(a)(13)(A), specific by 8 U.S.C. inappli “plainly is not statutory definition Statutory Language §of as fact in It was this to her case. cable” a Whole
Shivaraman, that distin F.3d at 254 F.3d Ocampo-Duran, fromit guished statutory lan reading the When 1134-35, a different outcome. and led to at ad 212(h) “previously been guage of — defini explicit includes an a statute “When .. n : lawfully an alien mitted definition,” Sten tion, follow that we must against residence” — Carhart, 530 U.S. berg INA, the two definitions section (2000) (cita 147 L.Ed.2d unambigu It each other. qualify terms omitted), possi is not doing unless so tions defined the class of Congress ous that case, In this context. particular in a ble seeking from those who are barred “admit definition the explicit LPRs who obtained waiver as And the ultimate clearly applies. ted” re they or at the time prior their status Garcia-Quintero, holdings in of our sult into the United States. physically entered 1018-19, Cuevas-Gaspar, at 455 F.3d Leiba, 792-93; at Papazoglou, 725 F.3d rather expand F.3d at was 350-51; at Hanif, 694 F.3d F.3d at eligi individuals pool than contract Bracamontes, 385-86; 484-85; 675 F.3d by the provided relief from removal ble for Martinez, Lanier, 1366-67; 631 F.3d Negrete-Ramirez’s holding in INA. Our If term “admitted” at 546. result. will have the same case *7 in been admitted” “previously the phrase to also relies of status government post-entry note that the cluded We no LPR, government, there is proposed BIA decisions. Because as on statutory language, we need ambiguity in the the first section See, been admit agency previously these decisions. who has not examine “an alien 462, as,” Barnhart, would be S.Ct. 534 U.S. ted to the United e.g., definition of “law superfluous because the 941. residence” fully admitted for 1101(a)(20): “Lawfully
2. 8 U.S.C.
status. As
adjustment of
encompasses
Permanent Resi-
Admitted
of a
such,
would run afoul
the construction
dence”
statutory interpretation
principle of
basic
not be
enactments should
“legislative
in the
phrase
second distinct
The
mere
212(h)
provisions
to render their
statutorily
construed
contains
text
(cita
Sum,
F.3d at 1097
surplusage.”
“lawfully
perma
admitted for
term
defined
omitted).
Congress
Had
intended
tion
is defined
The term
nent residence.”
LPRs, it
apply to all
eligibility to
lawfully accord
bar on
having been
“the status of
phrase.
simply omitted
in would have
permanently
residing
privilege
ed the
Furthermore,
the statute to bar
construing
in ac-
immigrant
as an
the United States
only
from eligibility
post-entry adjustment
LPRs who entered
of status to an LPR
into
the United States
such status is
after her admission to the United States as
by the “‘longstanding principle
bolstered
a visitor does not constitute an admission
construing any lingering
212(h).
ambiguities in
in the
Only
context of
nonciti-
”
deportation
statutes
favor of the alien.’
who
zens
entered into the United States as
Cuevas-Gaspar,
the absurdity doctrine. The Supreme BERZON, Judge, Circuit concurring: “rarely
Court
ambiguity
invokes [this
test]
unambiguous
legislation.”
override
Although I
majority
concur in the
opin-
Barnhart,
IV. plain language approach to the Section of the INA expressly in- incorporation of the definition of “admis- corporates the terms of art “admitted” and sion” and *8 in “admitted” INA section “lawfully 101(a)(13) admitted permanent suffice, resi- cannot both in general dence” by as defined 212(h) and with regard to the section 1101(a)(13) (20). Accordingly, the waiver. The BIA stresses that the INA plain language of unambiguously provides elsewhere for the assimilation of Negrete-Ramirez’s demonstrates adjustment admission,1 of status to See, e.g., 101(a)(20) INA (designating lawfully permanent residence” as adjusted those who have having long status they as as are "admissible" or re- have "lawfully been permanent admitted for resi- inadmissibility) ceived a waiver of (emphasis dence”) added); (emphasis 245(a), (i) added); 245(b) id. §§ (requiring Attorney id. the (authorizing General, the adjust having adjusted General an alien’s status to resident, status of certain aliens "to that of an alien that of a to "record the courts, agencies that assimilation leads to re- and the embodied in disregarding Chev- ron, U.S.A., NRDC, Inc., have intended. that could not been Inc. sults 467 U.S. a particular, in maintains that
Alyazji,
(1984),
104 S.Ct.
position statutorily defined adjustment assimilation of to ad- “admitted,” INA sec- better, therefore I accept mission works its term, “lawfully per- admitted for ond such reasoning. residence,” 101(a)(20),partic- manent id.
ularly requires approach words pointing It is also worth out that some of term; otherwise, the first the term “admit- suggest the anomalies the BIA’s cases ted” would be redundant the second adjustment arise of status is consid- unless instances, however, phrase. In some such purposes ered admission for all INA do where there has no admission of been not, fact, exist. statute, contemplated by yet the sort the context date requires trigger some For that if an example, Alyazji suggests event, which to measure a later or where adjustment of status does not constitute treating the result of admission, many who current- immigrants if status as there had been no admission ly seek waivers under section would absurd, adjustment would be of status longer Alyazji, no to do so. See Maj. must be treated as admission. See out Alyazji points 25 I. & N. Dec. at 403. Op. pp. 1052-53. 212(h)(1)(B) the At- “permit[s] that section application of torney General to waive the approach This nuanced now seems to me inadmissibility if a ‘de- grounds various appropriate more faithful to the division of *9 in ex- nial of admission’ ... would result responsibility Congress between and ad- hardship to the alien’s close rela- agencies, ministrative and between such treme added); 240A(b)(3)(same). permanent id. alien’s lawful admission for resi- sis adjustment) (empha- dence as of the date” of being a lawful position -BIA in absurd Id. be States.” tives in the United having result, resident without ever permanent that as contends and thus ‘admitted’ in that status been an status is not “admis- adjustment if inadmissibility under subject to could be aliens, .... admitted previously sion” for 212(a)(6)(A)® Act[,]” Kolje- of the section ineli- would seem to be then such aliens novic, I. & N. Dec. at as an “alien adjustment in- con- gible for waivers being in the States without present United any prospective hardship be- since paroled,” INA or no family members would falling their 212(a)(6)(A)®. Thus, “many per- lawful or longer attributable to denial in- manent residents would be considered Meanwhile, of “admission.” refusal admissible, status, despite their lawful adjustment having after seek aliens who - in the United presence based on their unlawfully States entered Al- having been admitted.” without for waivers be- eligible would remain But yazji, I. & N. Dec. at 399. individ- them, cause, adjustment of status for adjusted uals whose status has been are an would still be admission. date of lawful ad- assigned a constructive original). in (emphasis Id. permanent residence. See mission unjustified. The BIA’s concern is Sec- 245(b). 237(a)(1)(A) INA And section only to aliens who are applies tion deportable an alien in- explicitly treats as vi- “ineligible or to receive “inadmissible” adjust- entry “at the time of or admissible activity. criminal See INA sas” due to status,” clearing .up any ambiguity ment of 212(a)(2). eligible adjustment To be adjusted about aliens who have whether status, ordinarily an alien must be ad- they if at status are to be treated as were See, missible, must receive a visa. seeking purposes the border admission for 245(a). any ambiguity And e.g., id. 237(a)(1)(A) of the removal statutes. by reference to “the alien’s may be created added). So, (emphasis again, once where a 212(h)(1)(B), admission[,]” id. denial of might literal “admission” (1) up section is the waiver cleared absurdities, lead to the statute mentions lawfully to “an alien admit- the reference “adjustment” specifically, signals and so the same ted for residence” in. context, adjustment in the particular a waiver—defined sentence as adjustment. is to be assimilated to See 101(a)(20) separate as a status section Ashcroft, Ocampo-Duran also border; and
from actual admission at the Cir.2001) (rejecting as 1134-35 (2) in the next sen- explicit permission absurdity argument an that an alien the-Attorney to consent tence to General adjusted who status was not removable as to the United or to “admission an aggravated an “alien ... convicted of 212(h)(2) status[,T id. admission,” felony time after INA added). Indeed, (emphasis the inclusion of 237(a)(2)(A)(iii), “because he was never terms, separately, within section both technically purposes ‘admitted’ for 212(h)(2) first, the notion that belies statute”). second, admission, always includes the ad- indicates, instead, justment, that it at that, disagree I with the BIA Finally, sometimes does not. least interpretation, an alien under this Court’s adjusts having previ- if who status without Koljenovic similarly asserts that ad- ineligible for ously been admitted would be justment of status is not treated as “admission,” Alyazji, 25 I. enters without cancellation of removal. See who n. 2. The Gener- adjusts “would & N. Dec. inspection and later status *10 who, the removal of an alien may al cancel alia, “has resided the United
inter continuously years for 7 hav- after ” INA
ing been admitted in status.... 240A(a)(2) added). The BIA (emphasis adjustment that if of status is not
suggests “admission,” an alien who en-
deemed an adjusting unlawfully
tered before status 7-year not meet the continuous resi-
would for cancellation. requirement
dence require does not this
Our precisely
result. This is the situation iden-
tified above: there has been no admission type by envisioned section
101(a)(13)(A), requires trig- but the INA years which to measure the 7
ger date context, residence. In that
of continuous may
the date of status
used as a date of admission. reasons, majority’s I
For these find the
approach likely more to lead to results Congress’
consistent with overall intent statute, complicated and oft-amended
and view the anomalies identified
BIA as I therefore concur. overblown. America,
UNITED STATES
Plaintiff-Appellee, Maynard WILLIAMS,
Kenneth
Defendant-Appellant.
No. 12-30353. Appeals, States Court of
Ninth Circuit.
Argued Aug. and Submitted 3, 2014.
Filed Feb.