Jim Route v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIM ROUTE, No. 19-72854
Petitioner,
Agency No.
v. A215-927-145
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2021
Pasadena, California
Filed May 6, 2021
Before: MILAN D. SMITH, JR. and SANDRA S. IKUTA,
Circuit Judges, and KATHRYN H. VRATIL, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
2 ROUTE V. GARLAND
SUMMARY **
Immigration
Denying Jim Route’s petition for review of a decision of
the Board of Immigration Appeals concluding that he was
removable for having been convicted of a crime of moral
turpitude (CIMT) within five years after the date of
admission, 8 U.S.C. § 1227(a)(2)(A)(i), the panel deferred to
the BIA’s interpretation of the phrase “date of admission” as
referring to the date of the admission by virtue of which the
individual was present when he or she committed the
relevant crime.
Route, a citizen of the Federated States of Micronesia
(FSM), was admitted to the United States in 2005 and again
in 2015. In 2018, he was convicted of unlawful
imprisonment in the first degree, in violation of Hawai‘i law.
Under 8 U.S.C. § 1227(a)(2)(A)(i), an individual is
removable if he or she is convicted of a CIMT within five
years after the “date of admission,” and is convicted of a
crime for which a sentence of one year or longer may be
imposed. The BIA concluded that Route’s offense
constituted a qualifying CIMT, and that it rendered him
removable because he was convicted within five years of his
2015 admission. The BIA relied on its published decision in
Matter of Alyazji, 25 I. & N. Dec. 397 (BIA 2011), in which
it held that “date of admission,” in the context of
§ 1227(a)(2)(A)(i), refers to the “date of the admission by
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROUTE V. GARLAND 3
virtue of which the alien was present in the United States
when he committed his crime.”
Although the BIA’s decision in Route’s case was
unpublished, the panel concluded that it was eligible for
deference pursuant to Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984),
because it was directly controlled by a published decision,
namely Alyazji. At step one of Chevron, the panel concluded
the phrase “date of admission” is ambiguous, explaining that
the statute makes no attempt to distinguish which admission
is the relevant one when there are multiple admissions. At
step two of Chevron, the panel held that the BIA’s
interpretation in Alyazji was reasonable, noting that the BIA:
1) employed traditional tools of statutory interpretation;
2) considered alternative interpretations; 3) rejected the
interpretation that would focus on the first admission as not
reconcilable with the language and purpose of the statute;
and 4) considered changes to the statutory language, its own
precedent, and precedent of the Courts of Appeals.
Route argued that the Alyazji interpretation did not
comport with the Compact of Free Association governing
the relationship between the United States and the
FSM. Pursuant to the Compact, a Micronesian citizen may
be admitted to the United States and engage in occupations
and establish residence as a nonimmigrant without visa
approval or labor certification. The panel rejected Route’s
contention, explaining that the text of the Compact clearly
subjects Micronesian citizens to the removability grounds of
§ 1227(a).
4 ROUTE V. GARLAND
COUNSEL
Michaela Posner (argued) and Patrick Randell (argued),
Certified Law Students; Jennifer Lee Koh (argued),
Supervising Attorney; University of California, Irvine,
School of Law, Irvine, California; Peter Afrasiabi, One LLP,
Newport Beach, California; for Petitioner.
Sara J. Bayram (argued), Trial Attorney; Aimee J.
Carmichael, Senior Litigation Counsel; John W. Blakeley,
Assistant Director; Brian M. Boynton, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
M. SMITH, Circuit Judge:
Jim Route, a citizen of the Federated States of
Micronesia (FSM), was admitted to the United States twice:
once in 2005, and again in 2015. In 2018, Route was
convicted of unlawful imprisonment in the first degree, in
violation of Hawai‘i law. Subsequently, an immigration
judge (IJ) ordered Route removed for having been
“convicted of a crime involving moral turpitude committed
within five years . . . after the date of admission.” 8 U.S.C.
§ 1227(a)(2)(A)(i)(I). The IJ relied on Route’s 2015 entry
as the relevant admission for the purposes of
§ 1227(a)(2)(A)(i)(I). In an unpublished decision, the BIA
affirmed the IJ’s ruling. The BIA held that the 2015
admission constituted the relevant admission for the
purposes of the statute pursuant to the reasoning in its
previous published decision, Matter of Alyazji, 25 I. & N.
ROUTE V. GARLAND 5
Dec. 397 (BIA 2011). Route petitions for review of the
BIA’s decision and argues that his 2005 admission should
govern application of § 1227(a)(2)(A)(i)(I).
Although the BIA’s decision in this case is unpublished,
it is “directly controlled by a published decision,” namely
Alyazji. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010).
Thus, the BIA’s decision is eligible for deference pursuant
to Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See Uppal, 605 F.3d
at 714. Turning to the two-step Chevron inquiry, we
conclude that: (1) the phrase “the date of admission” in
§ 1227(a)(2)(A)(i)(I) is ambiguous; and (2) Alyazji’s
interpretation of that ambiguous phrase is “a permissible
construction of the statute,” Chevron, 467 U.S. at 843.
Therefore, we defer to the BIA’s interpretation and deny the
petition for review.
I. Factual and Procedural Background
The relationship between the United States and the
Federated States of Micronesia is governed by a Compact of
Free Association. See Compact of Free Association
Amendments Act of 2003 (US-FSM COFA), Pub. L. No.
108-188, 117 Stat. 2720. 1 Pursuant to the US-FSM COFA,
a Micronesian citizen “may be admitted to, lawfully engage
in occupations, and establish residence as a nonimmigrant in
the United States . . . without regard to . . . 8 U.S.C.
[§] 1182(a)(5) or (7)(B)(i)(II),” which contain requirements
for labor certifications and visas. US-FSM COFA § 141(a).
1
The US-FSM COFA is not part of the United States Code, but the
text of the agreement can be found here: https://www.congress.gov/108
/plaws/publ188/PLAW-108publ188.pdf.
6 ROUTE V. GARLAND
Taking advantage of his rights pursuant to the US-FSM
COFA, Route, who was born in Micronesia, entered the
United States in November 2005 as a nonimmigrant. Route
lived and worked in Hawai‘i. In 2015, Route returned to
Micronesia for a vacation with his children; they stayed for
less than two months. In June 2015, Route returned to the
United States and was again admitted as a nonimmigrant. In
June 2018, Route was convicted of unlawful imprisonment
in the first degree, a class C felony, in violation of Hawaii
Revised Statutes § 707-721(1). Route was sentenced to
68 days’ imprisonment and four years’ probation.
In 2019, the Department of Homeland Security (DHS)
charged that Route was removable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(i), which provides:
Any alien who—
(I) is convicted of a crime involving
moral turpitude committed within five
years . . . after the date of admission, and
(II) is convicted of a crime for which a
sentence of one year or longer may be
imposed,
is deportable.
At a hearing before the IJ, Route conceded that he was
admitted to the United States in 2015 and that he was
convicted of unlawful imprisonment in 2018. DHS also
alleged that a sentence of one year or more can be imposed
for a violation of § 707-721(1), which Route did not contest.
See Hawaii Revised Statutes § 706-660(1)(b) (providing that
ROUTE V. GARLAND 7
the “maximum length of imprisonment” for a class C felony
is “five years”).
The IJ held that unlawful imprisonment in the first
degree is a crime involving moral turpitude (CIMT). With
little explanation, the IJ also noted that Route’s 2015 entry
was the relevant date of admission for the purposes of
§ 1227(a)(2)(A)(i)(I). Because Route was not eligible for
any form of relief, the IJ ordered Route removed.
The BIA affirmed in an unpublished decision. The BIA
agreed that unlawful imprisonment in the first degree
constitutes a CIMT. 2 With regard to the date of admission,
the BIA, quoting Alyazji, 25 I. & N. Dec. at 406, noted that
it had “held that in the context of [§ 1227(a)(2)(A)(i)], ‘the
phrase “the date of admission” refers to the date of the
admission by virtue of which the alien was present in the
United States when he committed his crime.’” Thus,
according to the BIA, “[a]though [Route] may have been
lawfully admitted in 2005, he was also lawfully admitted on
June 8, 2015, which was less than 5 years prior to the
commission of his CIMT.” The BIA dismissed the appeal
and ordered Route removed.
II. Matter of Alyazji
Before Matter of Alyazji, the BIA interpreted the phrase
“the date of admission” from § 1227(a)(2)(A)(i)(I) in In re
Shanu, 23 I. & N. Dec. 754 (BIA 2005). In that decision, the
BIA “conclude[d] that the term ‘date of admission’ in
2
A few weeks after the BIA rendered its decision in Route’s case,
we held in an unrelated case that unlawful imprisonment in the first
degree, as defined by Hawai‘i law, is a CIMT. See Fugow v. Barr,
943 F.3d 456 (9th Cir. 2019) (per curiam). Route does not challenge this
aspect of the BIA’s ruling.
8 ROUTE V. GARLAND
[§ 1227(a)(2)(A)(i)] refers to, among other things, the date
on which an alien is lawfully admitted for permanent
residence by means of adjustment of status.” Id. at 757. In
other words, according to the rule set forth in Shanu, when
an individual adjusted his or her status to be a lawful
permanent resident (LPR), but did not physically leave and
reenter the country, that adjustment of status was an
“admission” and would reset the five-year clock for the
purposes of § 1227(a)(2)(A)(i)(I).
A number of circuit courts criticized this interpretation
of § 1227(a)(2)(A)(i)(I). See Alyazji, 25 I. & N. Dec. at 402.
We were among them. See Shivaraman v. Ashcroft,
360 F.3d 1142 (9th Cir. 2004). In Alyazji, the BIA
reconsidered its decision in Shanu, believing that the Shanu
decision “paid insufficient attention” to the fact that in 1990
Congress substituted the term “after entry” with “within five
years after the date of entry.” Alyazji, 25 I. & N. Dec. at 405.
Starting from scratch in its interpretation of
§ 1227(a)(2)(A)(i)(I), the BIA applied the two-step approach
from Chevron. First, the BIA noted that “[w]hen an alien
with a single [CIMT] conviction has multiple ‘admissions,’
this language begs the question of which ‘date of admission’
should be viewed as having started the 5-year clock.” Id.
at 400. Thus, the BIA held that because “[t]he statutory
language does not specify which of an alien’s various
admissions should be considered, . . . the statute [is]
ambiguous in that regard.” Id. at 405.
Next, the BIA attempted to “arrive at a reasonable
construction of the statute, taking into account the language
and structure of the [INA] as a whole.” Id. The BIA rejected
DHS’s proposed rule of using a case-by-case approach, as
the BIA believed that such an interpretation “would
ROUTE V. GARLAND 9
introduce unpredictability and incoherence to the law.” Id.
at 404.
Instead, the BIA adopted the following rule:
Given that [§ 1227(a)] is focused on
admission plus presence, we find that the
most natural reading of [§ 1227(a)(2)(A)(i)]
is that the phrase “the date of admission”
refers to the date of the admission by virtue
of which the alien was present in the United
States when he committed his crime.
Thus, to ascertain an alien’s deportability
under [§ 1227(a)(2)(A)(i)] of the [INA], we
look first to the date when his crime was
committed. If, on that date, the alien was in
the United States pursuant to an admission
that occurred within the prior 5-year period,
then he is deportable. Conversely, the alien
is not deportable if he committed his offense
more than 5 years after the date of the
admission pursuant to which he was then in
the United States. Moreover, under this
understanding of the phrase “the date of
admission,” the 5-year clock is not reset by a
new admission from within the United States
(through adjustment of status). Rather, such
a new admission merely extends an existing
period of presence that was sufficient in and
of itself to support the alien’s susceptibility to
the grounds of deportability.
Id. at 406–07 (footnotes omitted) (emphasis in original).
10 ROUTE V. GARLAND
Alla Adel Alyazji had been admitted to the United States
as a nonimmigrant in August 2001. Id. at 398. Alyazji never
left the United States, and in 2006 he adjusted his status to
LPR. Id. In 2008, he was convicted of a CIMT. Id. The
BIA applied its new interpretation of § 1227(a)(2)(A)(i)(I)
to Alyazji and held that although he was technically
“‘readmitted’ by means of adjustment of status in April
2006,” that adjustment of status “did not reset the 5-year
clock because it added nothing to the deportability inquiry.”
Id. at 408.
Finally, the BIA applied its new rule to a hypothetical
situation that did not involve an adjustment of status, but
instead included two admissions by physical entry to the
United States. The BIA described the case of “an alien who
was admitted to the United States as a nonimmigrant tourist
in 1990 on a family trip with his parents, and who returned
to his home country a few weeks later in compliance with
the terms of his temporary visa.” Id. at 407. Then, “in the
summer of 1998, the same alien was once again admitted to
the United States, this time as a nonimmigrant college
student.” Id. at 407–08. If that hypothetical individual
subsequently committed a CIMT in 2002, “[u]nder the
[Alyazji] interpretation of [§ 1227(a)(2)(A)(i)(I)], the alien is
deportable because, on the date when he committed his
offense in 2002, he was in the United States pursuant to his
admission as a nonimmigrant student in 1998, less than
5 years earlier.” Id. at 408. In contrast, the 1990 “‘date of
admission’ is irrelevant because the alien was not in the
United States pursuant to that first admission when he
committed his crime.” Id.
III. Mead
“[W]e review de novo the BIA’s determination of
questions of law, except to the extent that deference is owed
ROUTE V. GARLAND 11
to its interpretation of the governing statutes and
regulations.” Garcia-Quintero v. Gonzales, 455 F.3d 1006,
1011 (9th Cir. 2006), overruled on other grounds by
Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per
curiam). We only owe Chevron deference, however, “when
it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that
the agency interpretation claiming deference was
promulgated in the exercise of that authority.” United States
v. Mead Corp., 533 U.S. 218, 226–27 (2001).
The BIA’s “interpretations of the INA made in the
course of adjudicating cases before it satisfy the first
requirement for Chevron deference set forth in Mead.”
Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.
2009) (en banc). However, “[w]hether the [BIA’s]
interpretations of the INA satisfy Mead’s second
requirement depends on the form the [BIA’s] decision
takes.” Id. “[W]e have held that the [BIA’s] precedential
orders, which bind third parties, qualify for Chevron
deference because they are made with a ‘lawmaking
pretense.’ We have not accorded Chevron deference to the
[BIA’s] unpublished decisions, however, because they do
not bind future parties.” Id. (citation omitted); see also
Ceron v. Holder, 747 F.3d 773, 785 (9th Cir. 2014) (en banc)
(“We reiterate that our level of deference will depend on
whether the BIA publishes its decision.”). When the BIA
does not publish its decision, we accord it deference pursuant
to Skidmore v. Swift & Co., 323 U.S. 134 (1944), which
“entitl[es] the interpretation ‘to a respect proportional to its
power to persuade.’” Choin v. Mukasey, 537 F.3d 1116,
1120 (9th Cir. 2008) (quoting Garcia-Quintero, 455 F.3d
at 1014).
12 ROUTE V. GARLAND
There are limited circumstances in which the BIA’s
unpublished decisions are entitled to Chevron deference.
Where the BIA has interpreted a term in the INA in a
precedential decision, “we apply Chevron deference
regardless of whether the order under review is the
precedential decision itself or a subsequent unpublished
order that relies upon it.” Marmolejo-Campos, 558 F.3d at
911. Such an unpublished decision is eligible for Chevron
deference when it is “directly controlled by a published
decision interpreting the same statute.” Uppal, 605 F.3d
at 714; see also Garcia-Quintero, 455 F.3d at 1014(requiring the published decision “address[] the precise
question at issue”); Marmolejo-Campos, 558 F.3d at 911(requiring that the published decision “address[] the
dispositive question of statutory interpretation”).
Unpublished BIA decisions must satisfy this standard to be
accorded Chevron deference.
In Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), we
rejected the Government’s argument that we should defer to
a rule enunciated in an unpublished BIA decision that relied
on In re Blancas-Lara, 23 I. & N. Dec. 458 (BIA 2002), a
published decision that was not directly on point. Saldivar,
877 F.3d at 815 n.3. Blancas-Lara decided that a “period of
[lawful] residence after [an individual’s] admission as a
nonimmigrant . . . may be considered in calculating the
period of continuous residence for purposes” of cancellation
of removal. Blancas-Lara, 23 I. & N. Dec. at 459. The
petitioner in Saldivar had instead been “‘waved through
inspection’ by an officer,” Saldivar, 877 F.3d at 813.
Blancas-Lara, we concluded, was a narrow decision that was
confined to a holding “that Congress ‘intended . . . to
include’ and did include ‘admissions of nonimmigrants’ in
[the cancellation of removal] provision.” Id. at 815 n.3
(quoting Blancas-Lara, 23 I. & N. Dec. at 459–60).
ROUTE V. GARLAND 13
Blancas-Lara “did not address [Saldivar’s] situation . . . , in
which an alien was lawfully admitted in an unlawful status.”
Id. Thus, we did not defer to the BIA’s unpublished
decision, even though that decision recited language from a
published decision because the unpublished decision applied
a different rule than the one announced in the published
decision.
Similarly, in Velazquez-Herrera v. Gonzales, 466 F.3d
781 (9th Cir. 2006) (per curiam), we declined to defer to an
unpublished BIA decision that purportedly relied on In re
Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999), a
published decision. Velazquez-Herrera, 466 F.3d at 783. In
Rodriguez-Rodriguez, the BIA had to decide whether a
Texas crime “constitute[d] sexual abuse of a minor or a
crime of violence” pursuant to the INA. Rodriguez-
Rodriguez, 22 I. & N. Dec. at 991–92 (emphasis added).
Although it was not directly relevant to its holding, the BIA
noted in a parenthetical that Black’s Law Dictionary
“defin[es] child abuse as ‘[a]ny form of cruelty to a child’s
physical, moral, or mental well-being.’” Id. at 996
(emphasis added) (citation omitted). Then, in Velazquez-
Herrera, the question presented was what constituted “child
abuse” pursuant to the INA; the BIA issued an unpublished
decision using the definition of “child abuse” cited in
Rodriguez-Rodriguez. Velazquez-Herrera, 466 F.3d at 782.
We held that “neither the dictum in Rodriguez-Rodriguez nor
the definition the BIA adopted in [its unpublished decision]
constitutes a statutory interpretation that carries the force of
law.” Id. at 783 (citations and internal quotation marks
omitted). The BIA’s decision in Rodriguez-Rodriguez had
not “address[ed] the dispositive question of statutory
interpretation” that the BIA decided in its unpublished
decision in Velazquez-Herrera. Marmolejo-Campos,
558 F.3d at 911.
14 ROUTE V. GARLAND
We recognize that using adjudication to interpret a
statute is different from using notice-and-comment
rulemaking. Notice-and-comment rulemaking results in a
single, general document providing an interpretation of a
statutory provision. Adjudication, in contrast, utilizes a
case-by-case method of statutory interpretation. If an
agency were forced to restrict its adjudication to the factual
circumstances in that particular case only, it would be
difficult for the agency to provide guidance for application
of that same statute in future cases. As the Supreme Court
has recognized, “[a]djudicated cases may and do, of course,
serve as vehicles for the formulation of agency policies,
which are applied and announced therein.” N.L.R.B. v.
Wyman-Gordon Co., 394 U.S. 759, 765 (1969). Those
policies announced in adjudications can and will apply to
other adjudications with different facts. This is true in the
immigration context, where “[i]t is well-established that
Congress delegated to the BIA the authority to promulgate
rules, on behalf of the Attorney General, that carry the force
of law ‘through a process of case-by-case adjudication.’”
Garcia-Quintero, 455 F.3d at 1012 (quoting INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999)).
The D.C. Circuit has stated that “[w]hen an agency
[makes legal policy] by adjudication, because it is a
policymaking institution unlike a court, its dicta can
represent an articulation of its policy, to which it must adhere
or adequately explain deviations.” Kidd Commc’ns v.
F.C.C., 427 F.3d 1, 5 (D.C. Cir. 2005). We agree with the
D.C. Circuit that agency “dicta can represent an articulation
of its policy,” id. (emphasis added), but it is not always the
case that agency dicta does represent an articulation of its
policy that warrants deference. As Route correctly
recognizes, “[a]llowing all parts of published decisions
issued by the BIA to be eligible for Chevron deference
ROUTE V. GARLAND 15
would permit the BIA to insert a broad range of unrelated or
unreasoned policy decisions into published opinions for the
purpose of making them binding in future unpublished
cases.”
As with judicial opinions, “[t]he line is not always easy
to draw” when deciding whether language in an agency
adjudication is a binding rule or unnecessary dictum.
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir.
2004). We have noted that for the purposes of our court’s
opinions, “where a panel confronts an issue germane to the
eventual resolution of the case, and resolves it after reasoned
consideration in a published opinion, that ruling becomes the
law of the circuit, regardless of whether doing so is
necessary in some strict logical sense.” Id. (citation and
internal quotation marks omitted).
We apply the same principle to the BIA’s published
opinions. When the BIA “confronts an issue germane to the
eventual resolution of the case, and resolves it after a
reasoned consideration in a published” decision, id.,resolution of that particular issue is eligible for Chevron
deference, including when the BIA relies on that reasoning
in an unpublished decision. This guidance accords with our
decisions in Saldivar and Velazquez-Herrera. In Saldivar,
the BIA intended that its interpretation of the cancellation of
removal provision be confined to the unique factual
circumstances of that case concerning admission as a
nonimmigrant. Thus, whether the clock for the cancellation
of removal provision applied to someone who was “waved
through inspection” and “lawfully admitted in an unlawful
status,” Saldivar, 877 F.3d at 813, 815 n.3, was not “germane
to the eventual resolution of the case,” Cetacean Cmty.,
386 F.3d at 1173. And in Velazquez-Herrera, the BIA’s
earlier notation of how Black’s Law Dictionary defined
16 ROUTE V. GARLAND
“child abuse” was neither germane to the BIA’s published
decision nor reasoned in the sense that the BIA did nothing
other than use a mere parenthetical quotation. See
Velazquez-Herrera, 466 F.3d at 783.
In contrast, when we apply this principle to Route’s case,
we conclude that the BIA’s published decision in Alyazji did
interpret the phrase “the date of admission” in
§ 1227(a)(2)(A)(i)(I), even for situations that do not involve
an individual’s adjustment of status. In Alyazji, the BIA set
forth a bright-line rule: “the phrase ‘the date of admission’
refers to the date of the admission by virtue of which the
alien was present in the United States when he committed
his crime.” Alyazji, 25 I. & N. Dec. at 406. Although
Alyazji’s circumstances involved an adjustment of status,
the BIA did not limit this interpretation of
§ 1227(a)(2)(A)(i)(I) to adjustments of status. The BIA
could have decided Alyazji without giving a general
interpretation of § 1227(a)(2)(A)(i)(I) by confining its ruling
to situations involving adjustments of status. Instead, the
BIA interpreted § 1227(a)(2)(A)(i)(I) for a multitude of
situations, presumably to provide guidance to IJs and the
BIA in future cases, like this one. As further proof of the
general nature of this interpretation, the BIA applied its new
interpretation to a hypothetical scenario that did not involve
an adjustment of status. See Alyazji, 25 I. & N. Dec. at 407–
08.
Contrary to Route’s assertions, the BIA’s interpretation
was not “made casually and without analysis” or “uttered in
passing without due consideration of the alternatives.”
United States v. Johnson, 256 F.3d 895, 915 (9th Cir. 2001).
Instead, the BIA in Alyazji “confront[ed]” the interpretation
of § 1227(a)(2)(A)(i)(I). Cetacean Cmty., 36 F.3d at 1173.
That issue was “germane to the eventual resolution of the
ROUTE V. GARLAND 17
case.” Id. And the BIA “resolve[d that issue] after reasoned
consideration in a published opinion.” Id.
The BIA subsequently adhered to Alyazji’s interpretation
of § 1227(a)(2)(A)(i)(I) in its unpublished decision in this
case, quoting directly from Alyazji and applying the
interpretation to Route’s circumstances. Thus, the BIA’s
“unpublished decision [is] directly controlled by” Alyazji, “a
published decision interpreting the same statute.” Uppal,
605 F.3d at 714. Accordingly, we conclude that Alyazji, and
its application in the unpublished BIA decision in this case,
meet the requirements of Mead. See id.
IV. Chevron Step One
At step one of the Chevron analysis, we ask “whether
Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron,
467 U.S. at 842–43.
We previously interpreted a portion of
§ 1227(a)(2)(A)(i)(I) in Shivaraman. There, the petitioner
entered the United States in 1989 on a nonimmigrant visa.
Shivaraman, 360 F.3d at 1143. In 1997, Shivaraman
adjusted his status to LPR, and in 2000, he was convicted of
a crime in Hawai‘i. Id. The IJ and BIA both decided that
the 1997 adjustment of status was the relevant “admission”
for the purposes of § 1227(a)(2)(A)(i)(I). Id. at 1144–45.
We reversed the BIA and held “that both the plain words
of the statute and the intent of Congress is clear: the ‘date of
admission’ for the purposes of § [1227(a)(2)(A)(i)], is the
date of the alien’s lawful entry.” Id. at 1146. Thus, in
accordance with the BIA’s later ruling in Alyazji, we
18 ROUTE V. GARLAND
concluded that an adjustment of status was not an
“admission” for the purposes of § 1227(a)(2)(A)(i)(I). Id.
With respect to the phrase “the date of admission,” we
wrote that “[t]he provision makes it clear that it is ‘the date’
of lawful entry after inspection and authorization that
triggers the five-year period under the pertinent provision of
the statute. There can be only one ‘the’ date.” Id. at 1148
(citation omitted) (emphasis in original). Thus, “[w]here the
alien legally enters the U.S. after inspection and
authorization and remains in a lawful status thereafter, the
date of his lawful entry is ‘the’ date of his admission, as that
term is defined in the statute.” Id. at 1148–49. What we did
not answer in Shivaraman, however, was which date
constitutes the date when an individual has multiple
admissions preceding a conviction for a CIMT.
The plain text of § 1227(a)(2)(A)(i)(I) does not answer
this question. The statute makes no attempt to distinguish
which admission is the relevant one when there are multiple
admissions. “To maintain the proper separation of powers
between Congress and the executive branch, we must
‘exhaust all the traditional tools of construction’ before we
‘wave the ambiguity flag.’” Medina Tovar v. Zuchowski,
982 F.3d 631, 634 (9th Cir. 2020) (quoting Kisor v. Wilkie,
139 S. Ct. 2400, 2415 (2019)). For example, “[a] provision
that may seem ambiguous in isolation is often clarified by
the remainder of the statutory scheme.” United Sav. Ass’n
of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S.
365, 371 (1988). But even those other tools of statutory
construction do not resolve the ambiguity about which date
is “the date of admission.” Other provisions of the INA do
not specify which admission should govern application of
§ 1227(a)(2)(A)(i)(I). The INA provides a definition of
“admission,” see 8 U.S.C. § 1101(a)(13)(A), but that
ROUTE V. GARLAND 19
definition does not provide guidance as to which admission
is the pertinent one when there are multiple admissions.3
Even with our traditional tools of statutory interpretation, we
cannot discern clear guidance from Congress as to which
date of admission is the relevant one.
Thus, we join the Fourth Circuit in holding that “[t]he
INA is silent as to which admission should be used in
determining an alien’s removability under
[§ 1227(a)(2)(A)(i)] in the event an alien has multiple
admissions.” Sijapati v. Boente, 848 F.3d 210, 216 (4th Cir.
2017). “[T]he phrase ‘the date of admission’ is ambiguous.”
Id.; see also Alyazji, 25 I. & N. Dec. at 400 (“The statutory
language does not specify which of an alien’s various
admissions should be considered, and thus we find the
statute to be ambiguous in that regard.”). Having concluded
that Congress has not “directly spoken to the precise
question at issue,” Chevron, 467 U.S. at 842, we proceed to
the second step of the Chevron analysis.
3
We note that we have cautioned against mechanically applying the
§ 1101(a)(13)(A) definition of “admission” to every provision in the
INA. “Although we have said that § 1101(a)(13)(A) provides the
primary, controlling definition of ‘admitted,’ we similarly have
embrace[d] an alternative construction of the term when the statutory
context so dictates.” Ramirez v. Brown, 852 F.3d 954, 961 (9th Cir.
2017) (citation and some internal quotation marks omitted) (alteration in
original). Specifically, the BIA has held that adjustment of status can
constitute an “admission,” Alyazji, 25 I. & N. Dec. at 399–404, and we
have agreed with that conclusion, see Shivaraman, 360 F.3d at 1146–47.
However, we have declined to adopt a reading that “any event that
qualifies as an admission under this definition can serve as the date of
admission for the purposes of” § 1227(a)(2)(A)(i). Id. (emphases and
internal quotation marks omitted).
20 ROUTE V. GARLAND
V. Chevron Step Two
“[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of
the statute.” Chevron, 467 U.S. at 843. We “need not
conclude that the agency construction was the only one it
permissibly could have adopted to uphold the construction,
or even the reading the court would have reached if the
question initially had arisen in a judicial proceeding.” Id. at
843 n.11. The agency’s interpretation of the ambiguous
statute is to be “given controlling weight unless [it is]
arbitrary, capricious, or manifestly contrary to the statute.”
Id. at 844. We “may not substitute [our] own construction
of a statutory provision for a reasonable interpretation made
by the administrator of an agency.” Id. Instead, “[w]e must
accept the BIA’s construction if it is reasonable.” Pirir-Boc
v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). Our inquiry
for a Chevron step two analysis is further guided by the
subject matter of this case. “Judicial deference in the
immigration context is of special importance, for executive
officials exercise especially sensitive political functions that
implicate questions of foreign relations.” Negusie v. Holder,
555 U.S. 511, 517 (2009) (citation and internal quotation
marks omitted).
We hold that the BIA’s interpretation of
§ 1227(a)(2)(A)(i)(I) in Alyazji is reasonable. Faced with an
ambiguity about which of multiple admissions would
constitute “the date of admission,” the BIA employed a
number of traditional tools of statutory interpretation. For
example, the BIA considered the basic purpose of § 1227(a),
which is to remove individuals who are “in and admitted to
the United States.” Alyazji, 25 I. & N. Dec. at 406 (quoting
8 U.S.C. § 1227(a)). An individual is “in and admitted to the
ROUTE V. GARLAND 21
United States” when he or she is “present in the United
States pursuant to an admission.” Id. From this structure of
§ 1227(a), the BIA held that the provision “is focused on
admission plus presence.” Id. That conclusion is reasonable
in light of Congress’s decision to apply the removability
grounds in § 1227(a) to those individuals who are “in and
admitted to the United States.”
Additionally, the BIA considered alternative
interpretations of § 1227(a)(2)(A)(i)(I), including one
advanced by DHS where “admission would be construed in
accordance with [§ 1101(a)(13)(A)] except where
vindication of the legislative purpose and the avoidance of
absurd results dictates a broader reading.” Id. at 403. As
noted above, the BIA sought to avoid an interpretation that
would be “customized to meet each new context,” and would
“introduce unpredictability and incoherence to the law.” Id.
at 404. The BIA’s adoption of a bright-line rule accords with
our decision in Shivaraman, where we warned that the BIA
should not “establish[] a regime where an IJ may pick and
choose, without guidance, and at his apparent whim, among
several dates of ‘admission’ for purposes of determining
removability under” § 1227(a)(2)(A)(i). Shivaraman,
360 F.3d at 1147; see also id. (faulting the BIA for creating
a rule that “allows for an IJ’s exercise of unbounded
discretion with disparate effects and drastic immigration
consequences”).
The BIA also rejected an interpretation that would
always focus on the first date of admission, as such an
interpretation “is not reconcilable with the language and
purpose of the statute and would lead to ‘peculiar
consequences’ when applied to aliens who were briefly
admitted many years ago (such as tourists, perhaps) and who
remained outside the United States for decades thereafter
22 ROUTE V. GARLAND
before being readmitted.” Alyazji, 25 I. & N. Dec. at 406 n.6
(quoting Shanu, 23 I. & N. Dec. at 761).
Finally, the BIA considered changes to the statutory
language, its own precedent, and precedent from United
States Courts of Appeals, including our own. See id. at 399–
406 (citing Shivaraman, 360 F.3d 1142). Using such
background tools to interpret an ambiguous statute is neither
arbitrary nor capricious. It is the very same tools we would
employ were we to interpret § 1227(a)(2)(A)(i)(I) on a blank
slate. Taken together, the BIA’s interpretation is “a
permissible construction of the statute.” Chevron, 467 U.S.
at 843.
Route argues that if a nonimmigrant “makes a brief trip
outside the United States and returns for the purpose of
resuming a lawful period of residence that resulted directly
from the first admission, then the five-year clock should not
be reset by the subsequent admission.” The Alyazji
interpretation of § 1227(a)(2)(A)(i)(I) does reset the clock
each time an individual physically leaves the United States
and reenters as a nonimmigrant, even if that trip abroad is
very brief. See Sijapati, 848 F.3d at 218. “By contrast, the
INA allows lawful permanent residents to make brief trips
abroad without resetting their date of admission.” Id. (citing
8 U.S.C. § 1101(a)(13)(C)(ii)). While the Alyazji
interpretation subjects nonimmigrants to harsher
immigration consequences than LPRs, we have previously
noted “Congress’s well-established policy of affording
aliens with legal permanent resident status more benefits
than non-permanent residents under the INA.” Cuevas-
Gaspar v. Gonzales, 430 F.3d 1013, 1028 (9th Cir. 2005),
abrogated on other grounds by Holder v. Martinez
Gutierrez, 566 U.S. 583 (2012); see also Sijapati, 848 F.3d
at 218; Moore v. Ashcroft, 251 F.3d 919, 925 (11th Cir.
ROUTE V. GARLAND 23
2001). That the BIA would interpret an ambiguous statutory
provision to subject nonimmigrants to the consequences of
§ 1227(a)(2)(A)(i), even if traveling for only a brief period,
accords with that general congressional policy. The BIA’s
interpretation reflects “a reasonable policy decision” by
Congress. Sijapati, 848 F.3d at 218.
Route’s proposed interpretation of § 1227(a)(2)(A)(i)(I)
would focus on an individual’s ties to the United States and
the length of his or her trip abroad. That interpretation might
also be a reasonable one, but we do not compare multiple
interpretations to decide which is the fairest. Instead, the
focus at step two of the Chevron analysis is whether the
BIA’s interpretation is “a permissible construction of the
statute.” Chevron, 467 U.S. at 843. Based on the analysis
in Alyazji, interpreting the “the date of admission” language
in § 1227(a)(2)(A)(i)(I) to mean “the date of the admission
by virtue of which the alien was present in the United States
when he committed his crime” is reasonable. Alyazji, 25 I.
& N. Dec. at 406.
Route also argues that “[t]he BIA failed to properly
apply Alyazji to [his] case.” “[T]he BIA’s failure to properly
apply” its own binding precedent can “take[ an] unpublished
order well beyond the bounds of both Chevron and
Skidmore.” Barrera-Lima v. Sessions, 901 F.3d 1108, 1117
(9th Cir. 2018). In contrast, when the BIA applies its own
precedent reasonably, it can meet the requirements of
Chevron’s second step. Cf. Henriquez-Rivas v. Holder,
707 F.3d 1081, 1089 (9th Cir. 2013).
The BIA’s unpublished decision in this case reasonably
applied the rule from Alyazji. The BIA noted in Alyazji that
a long-ago admission that is “untethered to [an individual’s]
presence in the United States when the crime involving
moral turpitude was committed” would not be the relevant
24 ROUTE V. GARLAND
date of admission. Alyazji, 25 I. & N. Dec. at 406 n.6. To
Route, “[t]he logical corollary is that when two admissions
are related in purpose and presence in the United States is
not abandoned, the first admission is tethered to the second
and, thus, the first admission governs the § 1227 analysis.”
Route misreads Alyazji. The BIA wanted to ensure that
the relevant admission is the one that led to the individual’s
physical presence in the United States when he or she
committed the CIMT. A previous admission is “untethered
to [an individual’s] presence in the United States” when that
person subsequently left the country. See id. Route did just
that. Although Route was admitted in 2005, he subsequently
left the country and was again admitted in 2015. Per Alyazji,
it is the 2005 admission that is “untethered” to Route’s
presence during which he committed a CIMT. Route’s 2015
admission is “the admission by virtue of which [Route] was
present in the United States when he committed his crime.”
Id. at 406. As we stated in Shivaraman, “[w]here the alien
legally enters the U.S. after inspection and authorization and
remains in a lawful status thereafter, the date of his lawful
entry is ‘the’ date of his admission, as that term is defined in
the statute.” 360 F.3d at 1148–49. Route legally entered the
United States in 2015 after being inspected. He remained in
the lawful status of nonimmigrant thereafter. That date of
his lawful entry—2015—is the date of admission.
Additionally, the BIA’s application of Alyazji here
accorded with the hypothetical scenario that the agency gave
in Alyazji itself, where two admissions resulted in the more
recent admission being relevant for § 1227(a)(2)(A)(i)(I)
clock. See Alyazji, 25 I. & N. Dec. at 407–08. Although the
BIA’s hypothetical involved two admissions separated by an
eight-year absence, the BIA’s focus was on which admission
allowed the individual to enter the United States and commit
ROUTE V. GARLAND 25
a CIMT. See id. The BIA applied the same rule to Route’s
circumstances, so its application of Alyazji to its unpublished
decision here was reasonable.
Thus, the BIA, both in its original interpretation of
§ 1227(a)(2)(A)(i)(I) in Alyazji and in its application to
Route’s case, is to be “given controlling weight” because it
is not “arbitrary, capricious, or manifestly contrary to the
statute.” Chevron, 467 U.S. at 844. We defer to the BIA
and hold that Route was removable pursuant to
§ 1227(a)(2)(A)(i).
VI. US-FSM COFA
Finally, Route argues that the Alyazji interpretation of
§ 1227(a)(2)(A)(i)(I) “would not provide for ‘free
association,’ because [a] FSM citizen would constantly be
subject to a forever renewable period to gauge their moral
character regardless of their actual presence in the United
States.”
Micronesian citizens can enter, reside in, and work in the
United States without visa approval or labor certification.
See US-FSM COFA § 141(a). Even so, a Micronesian
citizen’s time spent in the United States as a nonimmigrant
“does not confer on” that person “the right to establish the
residency necessary for naturalization,” though the
individual can become a LPR or citizen through other paths.
Id. § 141(h). Additionally, the US-FSM COFA provides that
the INA “shall apply to any person admitted or seeking
admission to the United States . . . , and nothing in the
Compact . . . shall be construed to limit, preclude, or modify
the applicability of, with respect to such person . . . any
ground of inadmissibility or deportability under” the INA.
Id. § 141(f)(1). The US-FSM COFA provides specific and
26 ROUTE V. GARLAND
narrow exemptions from the INA for Micronesian citizens.
See id.
In interpreting the United States’ COFA with the
Republic of Palau, we held that that COFA “exempts”
Palauans “only from . . . specifically enumerated
subsections” of the INA “and that it does not provide an
exemption” not listed therein. United States v. Terrence,
132 F.3d 1291, 1294 (9th Cir. 1997). Pursuant to the
doctrine of “‘inclusio unius est exclusio alterius’ (the
inclusion of one is the exclusion of the other),” the mention
of only specific exemptions means that “the requirements of
all other provisions of immigration law remain applicable.”
Id. Route concedes that the text of the US-FSM COFA does
not “exempt[ him] from § 1227(a)(2)(A)(i) or any other
provision of the immigration laws.”
Instead, Route “argues that the COFA helps provide the
statutory context and flexibility within which to interpret the
phrase ‘the date of admission’ to comport with congressional
intent.” Route’s contention is that the general spirit of the
US-FSM COFA—creating a special relationship between
our two nations—should change how the BIA and our court
interpret § 1227(a)(2)(A)(i)(I) when applied to Micronesian
citizens.
The text of the US-FSM COFA is clear. Micronesian
citizens are subject to the removability grounds in § 1227(a).
Interpreting that provision differently for Micronesian
citizens would create two interpretations of the same statute.
As the BIA noted, “[a]s a rule, a single statutory term should
be interpreted consistently.” Alyazji, 25 I. & N. Dec. at 404
(citing Clark v. Martinez, 543 U.S. 371, 382 (2005)). The
President negotiated, and Congress approved, a
comprehensive scheme governing our relationship with the
Federated States of Micronesia. That scheme included
ROUTE V. GARLAND 27
application of § 1227(a)(2)(A)(i) to Micronesian citizens
who are admitted to the United States as nonimmigrants, see
US-FSM COFA § 141, the same § 1227(a)(2)(A)(i) that is
applied to citizens of other nations. We apply both the INA
and US-FSM COFA consistently with the text of those
enactments and defer to the BIA’s permissible interpretation
of the former.
* * *
We acknowledge that the Alyazji interpretation of
§ 1227(a)(2)(A)(i)(I) results in serious consequences when
applied to Route. As a Micronesian citizen, Route had less
incentive to apply to become a legal permanent resident or
naturalize as a United States citizen. Unlike nonimmigrants
from some other countries, Route could leave and enter the
United States at will without a visa and continue to work in
the United States without prior authorization. Route built a
life in this country, raising five children who are citizens of
the United States. Being removed from the United States, a
place Route has called home since 2005, is undoubtedly
difficult for Route and his family. However, Route never
applied to be a LPR, and he does not enjoy the privileges that
accompany that status. See 8 U.S.C. § 1101(a)(13)(C).
It is possible that the BIA could have produced a
different interpretation of § 1227(a)(2)(A)(i)(I), one that was
still permissible pursuant to Chevron but more flexible when
applied to nonimmigrants like Route. And Congress, of
course, could resolve the ambiguity in § 1227(a)(2)(A)(i)(I)
by adopting Route’s proposal of focusing on an individual’s
ties to the United States.
But the BIA did not interpret § 1227(a)(2)(A)(i)(I) in
such a way, and Congress has not adopted language
mirroring Route’s proposal. As members of the judicial
28 ROUTE V. GARLAND
branch, we cannot impose a different interpretation by fiat
when the Supreme Court instructs us to defer to an agency’s
reasonable interpretation of ambiguous statutory language.
See Chevron, 467 U.S. at 843–44. We also cannot augment
application of § 1227(a)(2)(A)(i)(I) because a particular
petitioner has longstanding ties to the United States. When
applying a statute enacted by the legislative branch and
interpreted by the executive branch, we sit as a court of law,
not of equity. So long as an individual commits a crime that
meets the criteria of § 1227(a)(2)(A)(i), that individual is
subject to removal. Route was admitted to the United States
in 2015 and committed a crime involving moral turpitude in
2018. Consequently, he is removable pursuant to
§ 1227(a)(2)(A)(i) for having been “convicted of a crime
involving moral turpitude committed within five years . . .
after the date [his] admission.” Therefore, we affirm the BIA
and deny the petition for review.
PETITION DENIED.