Roberto Serrano v. Loretta E. Lynch , 619 F. App'x 577 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERTO SERRANO, AKA Pilar ) No. 12-70568
Lomili Jimenez, AKA Pilar Jimenez )
Lomili, AKA Lomili Jimenez Pilar, ) Agency No. A037-731-032
AKA Pilar Jimenez-Lomeli, AKA )
P. Jimenez-Lomili, AKA Pilar ) MEMORANDUM*
Jimenez-Lomili, AKA Jimenez )
Lomili Pilar, AKA Lomilijimenez )
Pilar, AKA Roberto Serrano-Govea, )
)
Petitioner, )
)
v. )
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2015**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Before: REINHARDT, FERNANDEZ, and CLIFTON, Circuit Judges.
Roberto Serrano, a Mexican citizen who is a Lawful Permanent Resident
(LPR) of the United States, petitions for review of the Board of Immigration
Appeals’ (BIA) order which ordered his removal based on its decision that he was
not admissible when he sought to return to this country after a brief trip abroad.
We grant the petition and remand.
Serrano entered the United States without inspection in 1963 and pled guilty
to possession of a controlled substance with intent to distribute in 1973. See 21
U.S.C. § 841(a)(1). In 1983, he adjusted his status based on his marriage to a
United States citizen and became an LPR. After a brief trip to Mexico in 2006, he
was stopped and inspected by Customs and Border Protection and he admitted that
he had been convicted of the 1973 drug offense. He was then told that he appeared
to be inadmissible and that his inspection was deferred. These removal
proceedings commenced on January 22, 2007, and, ultimately, the government
asserted that he was removable because the drug offense conviction rendered him
inadmissible,1 as did his lack of a valid entry document2 and his fraud or
1
See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2012).
2
See id. § 1182(a)(7)(A)(i)(I).
2
misrepresentation.3 The Immigration Judge and the BIA determined that he was
inadmissible because of the drug offense. They rejected the government’s claim
that he lacked a valid entry document and its claim that he had committed fraud or
misrepresentation.4
When Serrano achieved LPR status in 1983, and for over a decade thereafter,
he was entitled to depart for brief trips abroad and to return without having his
return considered a new request to enter. See 8 U.S.C. § 1101(a)(13) (1994);
Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S. Ct. 1804, 1812, 10 L. Ed. 2d 1000
(1963); Camins v. Gonzales, 500 F.3d 872, 876–77 (9th Cir. 2007). However,
with the enactment of IIRIRA5 in 1996, the law was changed so that those who had
been convicted of a controlled substance offense could no longer simply enter after
a brief departure. See 8 U.S.C. §§ 1101(a)(13)(C)(v), 1182(a)(2)(C). Serrano
asserts that the application of the IIRIRA change was impermissibly retroactive as
3
See id. § 1182(a)(6)(C)(i).
4
The IJ rejected those claims and the government did not appeal the decision,
as a result of which the BIA assumed that Serrano was an LPR. We, also, will
proceed on the basis that Serrano was and is an LPR.
5
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104–208, 110 Stat. 3009–546.
3
to him, and, therefore, his removal cannot stand.6 We agree.
The Supreme Court has made the proper approach crystal clear, as have we.
See Vartelas, __ U.S. at __, 132 S. Ct. at 1486–88, 1490–92 (holding that a
showing of reliance is not required, and to apply IIRIRA’s amendment to 8 U.S.C.
§ 1101(a)(13) to a person who obtained LPR status before IIRIRA’s enactment
would be giving it an impermissibly retroactive effect); Cardenas–Delgado v.
Holder, 720 F.3d 1111, 1113, 1118–19 (9th Cir. 2013) (holding that proof of
reliance is not required in retroactivity analysis); Camins, 500 F.3d at 878, 884–85
(holding that § 1101(a)(13)(C)(v) cannot be applied retroactively to those who
became LPRs prior to IIRIRA’s enactment). Of course, in the cases just cited, the
alien had become an LPR before he committed a crime, whereas Serrano
committed the crime in question before he became an LPR. But that is a
distinction without a difference. We have held that where an alien had committed
a crime but applied for immigration relief before IIRIRA became effective,
application of IIRIRA’s provisions to the alien would be impermissibly retroactive.
See Hernandez de Anderson v. Gonzales, 497 F.3d 927, 941–42 (9th Cir. 2007)
(naturalization application; reliance on extant suspension of deportation rules
6
The change to 8 U.S.C. § 1101(a)(13) was not made expressly retroactive.
See Vartelas v. Holder, __ U.S. __, __, 132 S. Ct. 1479, 1487, 182 L. Ed. 2d 473
(2012).
4
precluded retroactivity of IIRIRA change); see also Ixcot v. Holder, 646 F.3d 1202,
1213 (9th Cir. 2011) (asylum relief sought despite new reinstatement-of-prior-
removal-order provision); cf. Fernandez–Vargas v. Gonzales, 548 U.S. 30, 44–46
& n.10, 126 S. Ct. 2422, 2432–33 & n.10, 165 L. Ed. 2d 323 (2006); Montoya v.
Holder, 744 F.3d 614, 616–17 (9th Cir. 2014). If the mere filing for a form of
immigration relief precludes retroactive application of IIRIRA’s changes, it
follows as the night the day that actually obtaining LPR status before IIRIRA’s
effective date precludes retroactive application.
Thus, Serrano was entitled to the benefits of 8 U.S.C. § 1101(a)(13)7 as it
existed before it was amended by IIRIRA.8 The BIA erred when it ruled otherwise.
Thus, we vacate the removal order and remand with instructions to terminate this
removal proceeding.
Petition GRANTED and REMANDED.
7
Including the benefits outlined in Fleuti, 374 U.S. at 462, 83 S. Ct. at 1812.
8
Because we have determined that the BIA erred when it decided that
Serrano was an arriving alien but was inadmissible, we need not, and do not,
consider Serrano’s possible 8 U.S.C. § 1182(c) (INA § 212(c)) (1982) relief claim
or his due process claim.
5