Mario SANCHEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 04-75584
United States Court of Appeals, Ninth Circuit
March 26, 2009
560 F.3d 1028
Argued and Submitted Dec. 15, 2008.
Edmund G. Brown, Jr., Thomas Greene, J. Matthew Rodriguez, Gordon Burns, Jamee Jordan Patterson (argued), Office of the Attorney General of California, for intervener-appellee California Coastal Commission.
Theodore G. Meeker, Attorney at Law, Honolulu, Hawaii, for amicus curiae Honolulu Council of the Navy League of the United States.
David K. Mears, Environmental and Natural Resources Law Clinic, Vermont Law School, South Royalton, Vermоnt, for amicus curiae Law Professors Hope Babcock, David Cassuto, Stephen Dycus, James R. May, Ann Powers, and Gerald Torres.
Central District, of California, Santa Ana, D.C. No. CV-07-00335-FMC.
Before: B. FLETCHER, D.W. NELSON, and STEPHEN REINHARDT, Circuit Judges.
ORDER
We remand to the district court to comply with the United States Supreme Court‘s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
* Eric H. Holder, Jr. is substituted for his predecessor, Michael B. Mukasey, as Attorney General of the United States.
Manuel Palau, Department of Justice, Washington, D.C., for the respondent.
Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, DIARMUID F. O‘SCANNLAIN, PAMELA ANN RYMER, ANDREW J. KLEINFELD, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RAYMOND C. FISHER, RICHARD A. PAEZ, CONSUELO M. CALLAHAN and N. RANDY SMITH, Circuit Judges.
Opinion by Judge SILVERMAN; Concurrence by Judge PAEZ; Dissent by Judge PREGERSON
SILVERMAN, Circuit Judge:
Mario Sanchez petitions for review of the Board of Immigration Appeals‘s affirmance of the Immigration Judge‘s decision denying him canсellation of removal because he could not meet the “good moral character” requirement of
I. Facts
Sanchez first entered the United States in April 1988 without inspection, and resided here without lawful status. He has left the United States only once since then, returning to Mexico for three weeks in August 1993 to get married. After the wedding, he paid a “coyote” $1,000 to smuggle himself and his new wife into the United States.
In May 2000, the Immigration and Naturalization Service charged Sanchez with removability as an alien found present in the United States without being admitted or paroled. Sanchez conceded removability and requested cancellation of removal pursuant to
Sanchez petitioned for review. When this case was before the three-judge panel in Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir.2008), the panel granted the petition, holding that the reasoning of our 2005 decision in Moran v. Ashcroft controlled. In Moran, the court “translat[ed]” the “family unity” waiver of inadmissibility in
The three-judge panel in the case at bar held that under the reasoning, albeit not the actual holding, of Moran, Sanchez appeared to be eligible for the family unity waiver. Sanchez, 521 F.3d at 1110. Judge Wallace, writing separately, suggested that the conflict between Moran and Khourassany should be resolved by
II. Analysis
In reviewing the agency‘s construction of a statute under Chevron, the first question we confront is “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Because we find the meaning of the statutory text to be clear, “that is the end of the matter,” and we need not take advantage of agency expertise in construing the statute. Id. at 842-43.
“In attempting to determine the meaning of a statute, ‘we look first to the plain meaning ... and give effect to that meaning where fairly possible.‘” Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir.2005) (quoting Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.2004)). The statute governing cancellation of removal and adjustment of status for certain nonpermanent residents like Sanchez,
(A) ha[ve] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) ha[ve] been a persоn of good moral character during such period;
(C) ha[ve] not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) ...; and
(D) establish[] that removal would result in exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Here, the IJ found that Sanchez met each of the statutory criteria except (B), requiring good moral character.
The definition of “good moral character” is in
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be estаblished, is, or was—
...
(3) a member of one of more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) of section 1182(a) of this title; or subparagraphs (A) and (B) of section 1182(a)(2) of this title and subparagraph (C) thereof of such section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period....
Sanchez is a member of one of the “classes of persons” that cannot establish good moral character because he admitted to aiding his wife to enter the United States illegally by paying a coyote to smuggle her across the border. Thus, under the terms of the good moral character definition, he cannot establish good moral character, whether he is inadmissible or not.
The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under section 1181(b) of this title and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 1153(a) of this title ..., if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the аlien‘s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
The problem with Sanchez‘s argument is that the family unity waiver of inadmissibility is irrelevant to whether an alien smuggler can establish good moral character under
This plain reading of
Moreover, Congress has shown its willingness to override clearly and explicitly the basic definition of good moral character when it so desires. See
We note that, even if the family unity inadmissibility waiver did apply in the cаncellation of removal context, Sanchez would not qualify for the waiver under the plain language of its text. The
A plain reading of
PAEZ, Circuit Judge, concurring:
I agree with the majority that Sanchez is ineligible for the family unity waiver here because he is neither an “alien lawfully admitted for permanent residence who temporarily proceeded abroad,” nor “an alien seeking admission or adjustment of status as an immediate relative or immigrant under [8 U.S.C. § 1153(a)].”
I am not persuaded, however, that the statutory language makes “plain” that the
(E) Smugglers
(i) In general
Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.
(ii) Special rule in the case of family reunification
Clause (i) shall not apply in the case of alien who is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990), was physically present in the United States on May 5, 1988, and is seeking admission as an immediate relative or under section 1153(a)(2) of this title (including under section 112 of the Immigration Act of 1990) or benefits under seсtion 301(a) of the Immigration Act of 1990 if the alien, before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien‘s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.
(iii) Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(11) of this section.
At issue here is thus how the “class[ ] of persons ... described in paragraph (6)(E)” is defined. The majority today finds it clear that this class is described solely in subparagraph (6)(E)(i), emphasizing that the moral character provision bars those “whether inadmissible or not” who fall within the classes listed in
I also write separately to note that while the statutory scheme as interpreted here may not be “patently absurd,” mj. opin. at 1033-34, it does appear “antithetical to Congress‘s stated goal of promoting family unification in immigration law.” Moran v. Ashcroft, 395 F.3d 1089, 1095 (9th Cir.2005) (Fletcher, J., concurring). In justifying the availability of the waiver to those applying for admission but not to those applying for cancellation of removal, the majority asserts that it is rational for Congress to draw a distinction between those who have entered the United States unlawfully and those who, despite helping others to enter illegаlly, are themselves seeking admission through the proper legal channels. Mj. opin. at 1033. This may be true, but it is harder to explain the distinction between those who have entered the United States illegally and those who have both entered the United States illegally and have helped their “spouse, parent, son, or daughter” to do so. Under current law, a person who has helped only himself is eligible for humanitarian relief from deportation to prevent “exceptional and extremely unusual hardship to the alien‘s [lawfully present] spouse, parent, or child.”
Fortunately, as the majority notes, Congress “knows how to create an exception” to the classes of persons deemed necessarily lacking in good moral character. Mj. opin. at 1032-33. A clear pronouncement by Congress that the family unity policy behind the “family smuggling” exception in the admissibility context applies equally to moral character and cancellation of removal determinations would ensure that people like Mr. Sanchez—by all accounts a model employee, son, husband, and father to three American children, see Pregerson dissent at 1036—would not be summarily deported for endeavoring to keep their families together while seeking a better life.
PREGERSON, Circuit Judge, dissenting:
This is a story about an industrious young man, Mario Sanchez (“Sanchez“), who was born into poverty in La Palma, Mеxico, and forced by circumstances to drop out of ninth grade to help support his mother, father, and five siblings. Sanchez worked at a restaurant as a dishwasher and a preparer of food, and then at a warehouse. In April 1988, when Sanchez was twenty-two years old, he entered the United States without inspection in search of a better life. He found a job in Oakland, California operating the large metal press machine at a scrap metal company, worked hard, and saved his money. Five years later he took three weeks off work and returned to his hometown in Mexico to marry his sweetheart. He paid a “coyote” $1,000 to help him and his bride Ana cross the border.
Mario and Ana Sanchez established a home in Oakland in 1993. They have three U.S. born children, Oswaldo, Isidoro, and Mario Jr., now aged six, twelve, and fourteen years respectively. At the time the IJ made his decision, the children were nine months, six years, and nine years old. The IJ noted that Isidoro and Mario Jr. were “doing quite well ... in school,” and that Mario Jr. was enrolled in his school‘s “gifted and talented children” program. Sanchez also testified that Mario Jr. and Isidoro had earned medals in school mathematics competitions.
Both Mario and Ana Sanchez work full-time. Together they earn an annual income of around $40,000. Sanchez has a steady and consistent employment history. For thirteen years Sanchez worked for the scrap metal company in Oakland. In 2001, Sanchez found a better job as a forklift operator.
Sanchez paid his income taxes every year from 1988 until his marriage in 1993. Since they were married, the Sanchezes have paid their income taxes every year. They provide their family with medical insurance. They live in a duplex that they own jointly with another relative. A letter from Sanchez‘s parish priest at St. Elizabeth Parish in Oakland tells us that Sanchez “has attended our Church services since year 1988,” and that Sanchez “is a good and hardworking person.” Although Sanchez pled guilty to a DUI in 1991, two years befоre he was married, he has not been arrested since then. For the past sixteen years, the Sanchezes have been working hard to provide their three American-born children with a good life in the United States. They also take care of Sanchez‘s ailing, diabetic father, a lawful permanent resident, who lives with them.
In 2000, Sanchez wished to legalize his status in the United States, so he sought help from two immigration attorneys, John Ricci (“Ricci“) and Frank Sprouls (“Sprouls“). These attorneys advised Sanchez to first file an application for asylum on the basis of economic discrimination.1
Sadly, like many other unsophisticated petitioners, Sanchez hired attorneys who have poor records before the state bar and our court. California State Bar records cited Ricci twice for “Discipline, probation; no actual suspension]” and once for “Public reproval with/duties.” Sprouls, who represented Sanchez before the BIA and our court, has a record of misconduct before the Ninth Circuit. In 2006, Sprouls “was on probation for numerous ethical violations in immigratiоn matters.” See Granados v. Keisler, 252 Fed.Appx. 851, 853-54 (9th Cir.2007) (citing In re Sprouls, No. 05-80025 (9th Cir. Sept. 23, 2005)). In his February 2005 investigation of Sprouls, the Ninth Circuit Appellate Commissioner found that Sprouls violated his duties as an attorney by engaging in many instances of “deficient conduct.”2 Report and Recommendation of the Appellate Commissioner, adopted in In re Sprouls, No. 05-80025 (9th Cir. Sept. 23, 2005). In a number of cases the Appellate Commissioner determined that Sprouls‘s deficient conduct “had the potential to injure his clients.” Id. Furthermore, in 2007 our court found that Sprouls provided ineffective assistance of counsel to another client in Granados v. Keisler.3 See Granados, 252 Fed.Appx. at 853-54.
In the case before us, the IJ found that Sanchez met all the requirements necessary to grant his petition for canсellation of removal except one: “Unfortunately [Sanchez] is barred from claiming good moral character,” because “he has paid a coyote to bring his wife into the United States illegally.”4 The IJ therefore denied Sanchez‘s application for cancellation of removal, and the BIA affirmed.
On appeal to this court, we held that under the reasoning of Moran v. Ashcroft, 395 F.3d 1089 (9th Cir.2005), Sanchez was entitled to cancellation of removal because Congress intended for the family unity waiver to apply in circumstances where an alien has helped “smuggle” his spouse into the country. Thus, the majority held that Sanchez possessed the requisite “good moral character,” and granted his cancellation of removal application. I agree with
Instead of following the logic of Moran, the majority struggles through a labyrinth of complex statutory interpretation to conclude that Congress intended that people like Sanchez be deemed to have “bad moral character.” With simple common sense, though, one should easily conclude that the opposite is true. Indeed, if we tried to explain the majority‘s complex interpretation of Congress‘s statutes to members of Congress themselves, I submit that many would be amused.
How can we possibly say members of Congress intended that a man who married his hometown sweetheart, brought her here fоr a better life, worked hard for twenty-one years to provide for his three children, bought a home, attended church regularly, and cared for his ailing father is a man of bad moral character? Most would say, instead, that this is the story of a good man making every attempt for himself, his wife, and his three American citizen children to live the American dream. In our nation‘s history, millions of immigrants have done the same. How can we condemn this behavior as “bad moral character” after honoring this dream since the birth of our nation?
Instead, I find the reasoning of Moran v. Ashcroft to be much more compelling. Moran held that a petitioner for cancellation of removal who assisted another alien to enter this country illegally generally does not mеet the good moral character requirement for cancellation of removal. Moran, 395 F.3d at 1093. But we further held that under the family unity waiver5 “the statutory scheme governing the requirements for cancellation of removal preserves eligibility for individuals whose involvement in ‘alien smuggling’ is limited to helping their own family members, including spouses and children.” Id. at 1090 (emphasis added).
The Moran court found that because the alien-smuggling provision and its exceptions6 are written with regards to “inadmissibility” rather than “cancellation of removal,” courts must translate the alien-smuggling inadmissibility provision and its exceptions into the language of cancellation of removal. Id. at 1093. The Moran court explained that such a translation “requires that we replace references to inadmissibility, applications for admission, and adjustment of status with references to cancellation of removal.” Id. (citing Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir.2004)). According to Moran, the family unity waiver rule in the context of cancellation of removal would therefore read:
The alien ... does not fail the good moral character requirement for cancellation of removal where the Attorney
General exercises discretion to waive the applicability of [the alien-smuggling provision]. Such discretion may be exercised “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest,” to waive the applicability of the alien-smuggling provision to the good moral character determination of an applicant for cancellation of removal who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien‘s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”
Id. at 1094 (quoting
Indeed, by establishing a “family unity” waiver, Congress has shown that it wants to help immigrant men and women maintain their marriages and families. Congress has further demonstrated in the specific context of cancellation of removal that the family unity waiver applies. When stating the requirements of “cancellation of removal,” Congress included the definition of “good moral character.”7 In the definition of “good moral character,” Congress referred to the alien-smuggling provision and its exceptions, including the family unity waiver.8 Why should we disregard the explicit intent of Congress, as the majority asks us to? The majority finds an exception barring the family unity waiver in the case of cancellation of removal, but Congress has never stated that such an exception exists.
In short, I agree with the Moran court‘s reasoning and the holding of the three-judge panel‘s opinion that the family unity waiver applies to Sanchez, and that we should grant his application for cancellation of removal. Accordingly, I dissent.
BARRY G. SILVERMAN
UNITED STATES CIRCUIT JUDGE
Notes
The attorney general may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) of this section in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under section 1181(b) of this title and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 1153(a) of this title (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien‘s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.