Perez-Enriquez v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME PEREZ-ENRIQUEZ, 
Petitioner, No. 03-70244
v.
 Agency No.
A92-002-074
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 23, 2006—San Francisco, California
Filed September 15, 2006
Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,
Diarmuid F. O’Scannlain, Sidney R. Thomas,
Barry G. Silverman, M. Margaret McKeown,
Kim McLane Wardlaw, Willam A. Fletcher,
Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon,
Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee,
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge William A. Fletcher;
Partial Concurrence and Partial Dissent by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Bybee;
Dissent by Judge Callahan
11389
PEREZ-ENRIQUEZ v. GONZALES 11393
COUNSEL
Raul R. Labrador, Nampa, Idaho, Robert H. Gibbs, Robert H.
Pauw, Gibbs Houston Pauw, Seattle, Washington, for the peti-
tioner.
Francis W. Fraser, Deborah N. Misir, U.S. Department of Jus-
tice, Washington, D.C., for the respondent.
OPINION
W. FLETCHER, Circuit Judge:
The question raised by this petition is whether the admissi-
bility of an alien under the Special Agricultural Worker
(“SAW”) program is determined only as of the date of admis-
sion for lawful temporary residence under 8 U.S.C.
11394 PEREZ-ENRIQUEZ v. GONZALES
§ 1160(a)(1), or whether it is determined both as of that date
and as of the date of adjustment to lawful permanent resi-
dence under § 1160(a)(2). We hold that admissibility is deter-
mined as of the date of admission for lawful temporary
residence, and is not redetermined as of the date of adjustment
to lawful permanent residence. We therefore grant the petition
for review.
I. Factual Background
On about November 10, 1988, Jaime Perez-Enriquez, a citi-
zen of Mexico, was admitted to lawful temporary resident sta-
tus under the SAW provisions of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1160(a)(1). It is undis-
puted that at the time he was granted temporary resident sta-
tus, Perez-Enriquez satisfied the requirements for
admissibility under § 1160(a)(1). On December 1, 1990,
Perez-Enriquez’s status was automatically adjusted to lawful
permanent resident under 8 U.S.C. § 1160(a)(2).
On March 27, 1989, after his admission as a lawful tempo-
rary resident under § 1160(a)(1), but before his adjustment to
lawful permanent resident status under § 1160(a)(2), Perez-
Enriquez pled guilty to possession for sale of a controlled sub-
stance in violation of California Health and Safety Code
§ 11135. The court imposed a $100 fine and a suspended sen-
tence of 180 days in county jail. In 2001, the Immigration and
Naturalization Service1 (“INS”) sought to remove Perez-
Enriquez as an inadmissible alien under 8 U.S.C.
§ 1227(a)(1)(A) on the ground that, due to his drug convic-
tion, he was inadmissible at the time his status was adjusted
to that of lawful permanent resident. Perez-Enriquez con-
tended that because he had been admitted under the SAW pro-
gram, his admissibility had been determined at the time of his
1
The Immigration and Naturalization Service has since been replaced by
the Department of Homeland Security. Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135.
PEREZ-ENRIQUEZ v. GONZALES 11395
admission as a lawful temporary resident under § 1160(a)(1).
Therefore, according to Perez-Enriquez, the INS could not
seek removal on the ground that he was inadmissible.
The Immigration Judge (“IJ”) ordered Perez-Enriquez
removed as an inadmissible alien under § 1227(a)(1)(A). The
Board of Immigration Appeals (“BIA”) summarily affirmed
the IJ’s decision in a “streamlined” order.
Perez-Enriquez timely petitioned for review in this court. A
three-judge panel denied the petition, holding that because
Perez-Enriquez had been convicted of his crime before his
adjustment to lawful permanent resident status under
§ 1160(a)(2), he never successfully adjusted to that status.
Thus, according to the panel, the INS could seek his removal
as an inadmissible alien under § 1227(a)(1)(A) rather than as
a lawful permanent resident. Perez-Enriquez v. Gonzales, 411
F.3d 1079, 1083 (9th Cir. 2005). We have vacated the deci-
sion of the three-judge panel and taken the case en banc to
consider Perez-Enriquez’s petition anew. Perez-Enriquez v.
Gonzales, 436 F.3d 1097 (9th Cir. 2006).
Because this was a streamlined decision, we review the IJ’s
decision as the final agency action. See Falcon Carriche v.
Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003), as amended. We
review the legal questions presented de novo. De Martinez v.
Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004), as amended. We
give Chevron deference to established constructions by the
BIA of the statutes it is charged to administer. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999) (citing Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842
(1984)); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995).
II. Jurisdiction
[1] The government has argued that under 8 U.S.C.
§ 1252(a)(2)(C) we lack jurisdiction to review the petition
because Perez-Enriquez “is removable by reason of having
11396 PEREZ-ENRIQUEZ v. GONZALES
committed a criminal offense covered in [8 U.S.C. §]
1182(a)(2).” This argument was made prior to the enactment
of the REAL ID Act of 2005. Pub. L. No. 109-13, 119 Stat.
231, 310 (2005). Section 106(a)(1)(A)(iii) of the Act amended
8 U.S.C. § 1252 to add a new subsection. That subsection pro-
vides: “Nothing in subparagraph (B) or (C), or in any other
provision of this chapter (other than this section) which limits
or eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of
appeals in accordance with this section.” 8 U.S.C.
§ 1252(a)(2)(D). We are presented with a reviewable question
of law: whether Perez-Enriquez’s admissibility is determined
not only as of the date of his admission to lawful temporary
status under § 1160(a)(1), but also as of the date of his adjust-
ment to lawful permanent status under § 1160(a)(2). The gov-
ernment contended, and the IJ concluded, that the statute
requires that admissibility be determined as of both dates. If
the IJ’s construction of the statute is wrong, Perez-Enriquez
is not removable on the ground charged by the government.
We have jurisdiction under § 1252 to review the IJ’s legal
conclusion.
III. Discussion
[2] The SAW program was established by Congress in
1986 as a two-step legalization program for certain alien agri-
cultural workers. Under 8 U.S.C. § 1160(a)(1), the Attorney
General “shall adjust the status of an alien to that of an alien
lawfully admitted for temporary residence if the Attorney
General determines that” the individual has applied for such
adjustment within eighteen months of November 6, 1986; has
resided in the United States and performed agricultural work
for at least 90 man-days during the twelve-month period end-
ing on May 1, 1986; and is otherwise admissible as an immi-
grant. After a statutorily prescribed time period, the Attorney
General then “shall adjust the status of any alien provided
lawful temporary resident status under paragraph (1) to that of
PEREZ-ENRIQUEZ v. GONZALES 11397
an alien lawfully admitted for permanent residence.” Id.§ 1160(a)(2).
Under § 1160(a)(3)(A), the Attorney General “may termi-
nate” an individual’s temporary resident status at any time
prior to adjustment of status to a lawful permanent resident.
Under § 1160(a)(3)(B), the Attorney General “may deny
adjustment to permanent status and provide for termination of
the temporary resident status” under § 1160(a)(1) if, inter alia,
“the alien . . . is convicted of a felony . . . committed in the
United States.” However, if the Attorney General does not act
affirmatively to terminate an alien’s temporary resident status
under § 1160(a)(3), that status is automatically adjusted to
permanent resident under § 1160(a)(2) after the passage of the
requisite time period.
[3] The government, however, contends that 8 U.S.C.
§ 1227(a)(1)(A) dictates a different timetable for determining
admissibility than just described. Section 1227(a)(1)(A) pro-
vides:
Inadmissible aliens
Any alien who at the time of entry or adjustment of
status was within one or more of the classes of aliens
inadmissible by the law existing at such time is
deportable.
(Emphasis added.) The government contends that the admissi-
bility of all aliens — even aliens already admitted to lawful
temporary resident status under the SAW program under
§ 1160(a)(1) — is determined, for purposes of any adjustment
of status, as of the date of that adjustment. By the govern-
ment’s logic, Perez-Enriquez’s conviction rendered him inad-
missible at the time of his adjustment from temporary to
permanent legal resident status. Therefore, according to the
government, Perez-Enriquez is removable as an inadmissible
alien under § 1227(a)(1)(A).
11398 PEREZ-ENRIQUEZ v. GONZALES
The legal question is narrow, but the consequence is impor-
tant. If the admissibility of an alien admitted under the SAW
program is determined at the time of his initial adjustment of
status to lawful temporary resident under § 1160(a)(1), and if
the alien’s status is thereafter automatically adjusted to lawful
permanent resident without further inquiry into admissibility,
the government may institute removal proceedings against the
alien. But the government must do so on the premise that the
alien is a lawful permanent resident alien rather than that the
alien is inadmissible.
Lawful permanent resident aliens have important protec-
tions in removal proceedings that are not provided to inadmis-
sible aliens. For example, depending on the circumstances, a
lawful permanent resident alien is entitled to seek relief under
Section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed
1996), and INS v. St. Cyr, 533 U.S. 289 (2001), or to seek
cancellation of removal under 8 U.S.C. § 1229b(a). In Perez-
Enriquez’s case, the relevant protection is that provided by
Section 212(c) and St. Cyr because he pled guilty to his drug
offense in 1989, prior to the adoption of three statutes limiting
the availability of relief under Section 212(c). See St. Cyr, 533
U.S. at 297.
[4] The BIA has authoritatively construed the statute in the
manner urged by Perez-Enriquez. In Matter of Jimenez-Lopez,
20 I. & N. Dec. 738 (BIA 1993), Jimenez-Lopez had been
admitted to lawful temporary resident status under the SAW
program. Jimenez-Lopez sought to return to the United States
from Mexico, but was excluded from reentry because mari-
juana was found in his car at the border. In discussing his
excludability under § 1225, the BIA carefully described the
operation of the SAW program and § 1160(a):
[S]ection 210(a)(2) of the Act [8 U.S.C.
§ 1160(a)(2)] . . . adjusts the status of an alien
granted lawful temporary status under section
210(a)(1) [§ 1160(a)(1)] to that of a lawful perma-
PEREZ-ENRIQUEZ v. GONZALES 11399
nent resident on the basis of a fixed schedule, with-
out regard for the alien’s admissibility at that time.
This mechanism is perhaps unique under the immi-
gration laws, since an alien admitted for temporary
residence under section 210(a)(1) may apparently
adjust his or her status to that of a lawful permanent
resident even if physically outside of the United
States. . . .
It is true that section 210(a)(3)(B) of the Act, 8
U.S.C. § 1160(a)(3)(B) (Supp. IV 1992), permits the
Attorney General to deny a lawful temporary resi-
dent adjustment of status under section 210(a)(2) and
terminate temporary resident status upon, inter alia,
the alien’s commission of an act that renders him or
her inadmissible under section 212(a) of the Act
[§ 1182]. However, the language of this provision is
permissive in nature only; it does not mandate an
examination of a lawful temporary resident’s admis-
sibility before adjustment to permanent status, such
as is the case with respect to adjustment under sec-
tion 245 [§ 1227].
...
[T]he record reflects that the Service clearly could
have proceeded to deny the applicant’s adjustment of
status under section 210(a)(2) of the Act and to ter-
minate his lawful temporary resident status, but did
not. We do not find this omission, however, to con-
stitute a new determination of the applicant’s admis-
sibility to the United States, as the Service was not
obliged to make such a finding before the automatic
adjustment of the applicant’s status took place on
December 1, 1990.
Id. at 742-43 (internal citation omitted). The BIA held that
Jimenez-Lopez was excludable from the United States
11400 PEREZ-ENRIQUEZ v. GONZALES
because of his attempt to smuggle marijuana into the United
States, but that he was excludable only as a lawful permanent
resident alien, not as a temporary resident. The BIA was
explicit on this point: “The necessary conclusion is that these
exclusion proceedings are still proper despite the applicant’s
adjustment of his status to that of lawful permanent resident
under section 210(a)(2) of the Act [§ 1160(a)(2)].” Id. at 743
(emphasis added).
[5] We conclude that the BIA’s opinion in Jimenez-Lopez,
published in 1993, is alone dispositive of this case as a clear,
authoritative explication of the operation of § 1160(a). We
give Chevron deference to published decisions of the BIA
interpreting the immigration statutes it is charged to adminis-
ter. As stated by the Supreme Court in INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999):
The Attorney General, while retaining ultimate
authority, has vested the BIA with power to exercise
the “discretionary power and authority conferred
upon the Attorney General by law” in the course of
“considering and determining cases before it.” 8
C.F.R. § 3.1(d)(1) (1998). Based on this allocation of
authority, we recognized in Cardoza-Fonseca, [480
U.S. 421 (1987)], that the BIA should be accorded
Chevron deference as it gives ambiguous statutory
terms “concrete meaning through a process of case-
by-case adjudication”[.]
Despite this statement in Aguirre-Aguirre, the dissent con-
tends that we should not give Chevron deference to Jimenez-
Lopez. It gives three reasons. First, the dissent states that “the
applicable immigration statutes have changed considerably
since 1993.” Diss. op. at 11413. In a broad sense it is, of
course, true that the immigration statutes “have changed con-
siderably since 1993.” But the narrower issue relevant to this
case is whether any of the “applicable” statutes has changed.
PEREZ-ENRIQUEZ v. GONZALES 11401
The dissent fails to identify any statutory provision applicable
to this case that has changed since 1993.
Second, the dissent states that “the Attorney General of the
United States[ ] does not share the panel’s reading of Jimenez-
Lopez. . . . It seems anomalous to give deference to an agency
determination that is contrary to the position taken by the
head of the agency.” This statement disregards that the Attor-
ney General has vested his discretionary interpretive authority
to the BIA, see 8 C.F.R. § 3.1(d)(1) (2003), Aguirre-Aguirre,
526 U.S. at 425, and that the BIA has already interpreted the
statutory provisions at issue. The position of the government
in this case is a litigating position taken in opposition to a
published decision of the agency charged with administering
the statute. See Bowen v. Georgetown University Hospital,
488 U.S. 204, 212-13 (1988) (“We have never applied the
principle [of Chevron and other cases] to agency litigating
positions that are wholly unsupported by regulations, rulings,
or administrative practice.”); Smiley v. Citibank (South
Dakota), N.A., 517 U.S. 735, 741 (1996) (“Of course we deny
deference to ‘agency litigating positions that are wholly
unsupported by regulations, rulings, or administrative prac-
tice.’ ” (citing Bowen)).
Third, the dissent states that “if there is more than one pos-
sible construction of § 1160, then neither this court nor the
BIA is bound under Chevron to the majority’s interpretation
of Jimenez-Lopez.” Conceding arguendo the dissent’s premise
that there is more than one possible construction of § 1160,
the dissent’s conclusion does not follow from its premise.
Whenever a statute is susceptible to more than one interpreta-
tion, Chevron deference is owed to an interpretation provided
by the agency charged with administering the statute. In this
case, that agency is the BIA. Contrary to the dissent’s state-
ment, the BIA is not bound under Chevron to follow any par-
ticular interpretation of an ambiguous provision of our
immigration statutes. Rather, it is this court that is bound
under Chevron. Also contrary to the dissent’s statement, we
11402 PEREZ-ENRIQUEZ v. GONZALES
are not providing an “interpretation of Jimenez-Lopez” in this
case. Rather, we are following the interpretation of § 1160
provided by the BIA in Jimenez-Lopez, as required by Chev-
ron.
[6] We note for good measure that prior to the three-judge
panel decision in this case, the BIA consistently followed
Jimenez-Lopez in an unbroken string of unpublished opinions.
Such unpublished decisions are not entitled to Chevron defer-
ence, see Skidmore v. Swift & Co., 323 U.S. 134, 139-40
(1944), but they serve to underline the correctness of our
reading of the BIA’s decision in Jimenez-Lopez.
For example, In re Herrera-Mendez, 2004 WL 1167348(BIA Jan. 27, 2004), is factually indistinguishable from this
case. Like Perez-Enriquez, Herrera-Mendez was an agricul-
tural worker admitted under the SAW program. Also like
Perez-Enriquez, he was convicted of a drug offense between
the time of his admission to temporary resident status and his
adjustment to permanent resident status. Citing Jimenez-
Lopez, the BIA held that Herrera-Mendez had successfully
adjusted to permanent resident status despite the drug convic-
tion. It wrote:
[R]espondent became a lawful temporary resident
of the United States on June 16, 1988, as a special
agricultural worker (SAW) pursuant to section 210
of the Act [8 U.S.C. § 1160] . . . . The respondent’s
drug conviction was entered August 17, 1990, after
she had already filed her SAW application. On
December 1, 1990, her status was adjusted to lawful
permanent resident pursuant to section 210 of the
Act.
The rules and procedures for adjustment to perma-
nent status under section 210(a)(2) of the Act
[§ 1160(a)(2)] differ from those relating to adjust-
ment of status under section 245 of the Act [§ 1227].
PEREZ-ENRIQUEZ v. GONZALES 11403
Whereas adjustment pursuant to section 245 of the
Act requires that an alien be admissible to the United
States at the time of his adjustment to lawful perma-
nent residence, adjustment pursuant to section
210(a)(2) of the Act has no such requirement.
Instead, pursuant to section 210(a)(1)(C) of the Act,
an alien’s admissibility to the United States is deter-
mined as of the time of his adjustment to that of law-
ful temporary resident. After the alien has been
granted lawful temporary resident status under sec-
tion 210(a)(1) of the Act, section 210(a)(2) mandates
that his status be adjusted to that of lawful perma-
nent resident based on a fixed schedule and without
further reference to his admissibility. . . . See Matter
of Juarez, 20 I&N Dec. 340, 345 (BIA 1991); see
also Matter of Jimenez-Lopez, 20 I&N Dec. 738, 742
(BIA 1993).
Id. (internal citations and footnotes omitted). The BIA “there-
fore disagree[d] with the DHS that [Herrera-Mendez] was
inadmissible [to] the United States when she adjusted her sta-
tus to lawful permanent resident, and ineligible for section
212(c) consideration.” Id.To the same effect are In re Rodriguez-Rodriguez, 2004
WL 1739154 (BIA June 29, 2004) (“[P]ursuant to section
210(a)(1)(C) of the Act, an alien’s admissibility to the United
States is determined as of the time of his adjustment to that
of lawful temporary resident. . . . After the alien has been
granted lawful temporary resident status under section
210(a)(1) of the Act, section 210(a)(2) mandates that his sta-
tus be adjusted to that of lawful permanent resident alien
based on a fixed schedule and without further reference to his
admissibility. See . . . Matter of Jimenez-Lopez[.]”); In re
Acuna Martinez, 2004 WL 1167124 (BIA Feb. 12, 2004)
(“[U]nlike section 245 of the Act, which requires both a dis-
cretionary determination and consideration of statutory
requirements such as the alien’s continuing admissibility, pro-
11404 PEREZ-ENRIQUEZ v. GONZALES
visions set forth at section 210 do not mandate an examination
of a lawful temporary resident’s admissibility, but rather pro-
vide for an ‘automatic’ adjustment after 2 years of status as
a temporary resident. See Matter of Jimenez-Lopez[.].”); and
In re Tellez Gomez, 2004 WL 1059693 (BIA Jan. 2, 2004)
(“After the alien has been granted lawful temporary resident
status under section 210(a)(1) of the Act, section 210(a)(2)
mandates that his status be adjusted to that of lawful perma-
nent resident based on a fixed schedule and without further
reference to his admissibility. See . . . Matter of Jimenez-
Lopez[.]”).
IV. No Remand under INS v. Ventura
The government contends that the BIA’s unpublished deci-
sions just described did not answer the question now before
us — whether § 1227(a)(1) requires that the admissibility of
SAW workers must be determined at the time of readjustment
of status to permanent resident alien under § 1160(a)(2). It
argues that therefore, at a minimum, we should remand this
case to the BIA under INS v. Ventura, 537 U.S. 12 (2002), for
an answer to that question. For two reasons, we disagree with
the government’s contention that a Ventura remand is
required.
First, contrary to the government’s contention, the BIA’s
unpublished decisions did answer the question now before us.
For example, Herrera-Mendez is, as noted above, factually
indistinguishable from this case. The BIA concluded that
Herrera-Mendez had successfully adjusted her status and was
therefore eligible for relief under Section 212(c). The neces-
sary premise underlying that conclusion is that Herrera-
Mendez, and SAW aliens in her position, were not “inadmis-
sible” at the time of their adjustment to permanent resident
status under § 1162(a)(2). The BIA’s conclusion thus
addressed precisely the question now before us, for the key
phrase in § 1227(a)(1)(A) is “[i]nadmissible . . . at the time of
. . . adjustment of status.”
PEREZ-ENRIQUEZ v. GONZALES 11405
[7] Second, until the three-judge panel’s decision in this
case, the BIA consistently followed the construction of
§ 1160(a) articulated in Jimenez-Lopez and reflected in the
unpublished decisions described above. As a result of the
three-judge panel’s decision in the case now before us, the
BIA felt compelled to change its construction. In 2004, the
BIA initially decided In re Flores-Munoz, 2004 WL 2418626(BIA Aug. 27, 2004), in accordance with Jimenez-Lopez. In
the course of its unpublished decision, the BIA wrote what
had, by 2004, become a virtual boilerplate:
The rules and procedures for adjustment to perma-
nent status under section 210(a)(2) of the Act [8
U.S.C. § 1160(a)(2)] differ from those relating to
adjustment of status under section 245 of the Act [8
U.S.C. § 1227]. Whereas adjustment pursuant to sec-
tion 245 of the Act requires that an alien be admissi-
ble to the United States at the time of his adjustment
to lawful permanent residence, adjustment pursuant
to section 210(a)(2) of the Act has no such require-
ment. Instead, pursuant to section 210(a)(1)(C) of
the Act, an alien’s admissibility to the United States
is determined as of the time of his adjustment to that
of lawful temporary resident. . . . After the alien has
been granted lawful temporary resident status under
section 210(a)(1) of the Act, section 210(a)(2) man-
dates that his status be adjusted to that of lawful per-
manent resident based on a fixed schedule and
without further reference to his admissibility. See . . .
Matter of Jimenez-Lopez, 20 I&N Dec. 738, 742
(BIA 1993)[.]
After the decision of the three-judge panel in this case, the
government moved to reopen in Flores-Munoz. In an unpub-
lished decision granting the motion, the BIA wrote:
Initially, we note that in our August 27, 2004,
decision, we determined that pursuant to section
11406 PEREZ-ENRIQUEZ v. GONZALES
210(a)(1)(C) of the Act, an alien’s admissibility is
determined at the time of adjustment to lawful tem-
porary status and is not revisited as subsequent
adjustment to lawful permanent status is based upon
a fixed schedule without further reference to admis-
sibility. However, the United States Court of
Appeals for the Ninth Circuit has recently held that
adjustment of status occurs on the date of the auto-
matic adjustment to lawful permanent status under
[the SAW program], rather than on the earlier date
when the alien received lawful temporary status. See
Perez Enriquez v. Ashcroft, 383 F.3d 994 (9th Cir.
2004). Accordingly, the DHS motion is granted[.]
In re Flores-Munoz, 2005 WL 1104190 (BIA Mar. 25, 2005).
[8] In its second decision in Flores-Munoz, the BIA gave
no other reason than the decision of the three-judge panel for
reversing its long and consistent line of decisions based on
Jimenez-Lopez. We have no doubt that, left to its own
devices, the BIA would have continued to adhere to its deci-
sion in Jimenez-Lopez and later cases, for the BIA made clear
that its second decision in Flores-Munoz was compelled by
the decision of the three-judge panel of this court. We now
hold, on en banc consideration, that this decision of the three-
judge panel was incorrect. In this circumstance, we have no
reason to remand this case to the BIA under Ventura.
Conclusion
[9] Based on the text of 8 U.S.C. § 1160(a), the BIA’s deci-
sion in Jimenez-Lopez construing that text, and the BIA’s con-
sistent application of Jimenez-Lopez in later decisions, we
hold that admissibility for an agricultural worker under the
SAW program is determined as of the date of adjustment of
status to lawful temporary resident under § 1160(a)(1).
Admissibility is not redetermined as of the date of automatic
adjustment of status to lawful permanent resident under
PEREZ-ENRIQUEZ v. GONZALES 11407
§ 1160(a)(2). We therefore grant Perez-Enriquez’s petition for
review, vacate the order of removal, and remand to the BIA
for appropriate further proceedings.
PETITION GRANTED; REMANDED.
WARDLAW, Circuit Judge, concurring in part and dissenting
in part:
I, too, agree with most of the majority’s opinion. However,
I also agree with Judges Bybee and Silverman that a remand
under INS v. Ventura, 537 U.S. 12 (2002), is in order.
Although the BIA’s ruling in Matter of Jimenez-Lopez, 20
I. & N. Dec. 738 (BIA 1993), implicitly controls this decision,
the agency must be given an opportunity to make an explicit
holding that the relevant admissibility date for a special agri-
cultural worker (“SAW”) applicant is the date of admission as
a lawful temporary resident. I am persuaded that this is the
correct reading of the SAW provisions. As the BIA stated in
Jimenez-Lopez, adjustment of status under the SAW provi-
sions “involves a different procedure” whereby the appli-
cant’s status is adjusted to “that of a lawful permanent
resident on the basis of a fixed schedule, without regard for
the alien’s admissibility at that time.” Id. at 742.
BYBEE, Circuit Judge, with whom SILVERMAN, Circuit
Judge, joins, concurring in part and dissenting in part:
I agree with much of the majority’s opinion. I write sepa-
rately because I believe that the majority has overstepped the
bounds of INS v. Ventura, 537 U.S. 12 (2002).
The majority finds that BIA has previously construed 8
U.S.C. § 1160(a)(1) to mean that Perez-Enriquez’s admissibil-
11408 PEREZ-ENRIQUEZ v. GONZALES
ity is determined only as of the date of admission to lawful
temporary status. See Matter of Jimenez-Lopez, 20 I. & N.
Dec. 738 (BIA 1993). It agrees with BIA and affords these
decisions Chevron deference. Maj. Op. at 11400. It then con-
trasts BIA’s prior position with its position this case, which
BIA evidently felt compelled to take because of the panel’s
original decision. Finding BIA’s position in this case incon-
sistent with its prior position, the majority concludes that
BIA’s decision in this case must be erroneous and vacates the
order of removal.
I am with the majority until that final step. I am not so con-
fident that we can reach that conclusion for BIA, even though
we may have invited the error. An agency has a duty of con-
sistent dealing. It also has the duty, in the first instance, to
construe the statutes it enforces. Having determined that BIA
has treated Perez-Enriquez in a manner inconsistent with
BIA’s prior rulings, I would grant the petition and remand to
BIA for an explanation. It seems to me that BIA has three
options. First, it can determine that its ruling in Perez-
Enriquez’s case is, indeed, inconsistent with its prior rulings
and can grant him the same relief. Based on BIA’s observa-
tions in In re Flores-Munoz, 2004 WL 2418626 (BIA Aug.
27, 2004), on the panel’s now-withdrawn opinion in this case,
see Maj. Op. at 11403-04, I would be surprised if BIA did not
acknowledge that it made a mistake in Perez-Enriquez’s case
and correct it. Second, BIA can explain why Perez-Enriquez’s
situation is factually different from Matter of Jimenez-Lopez
and the cases following it. Or, third, BIA can explain that it
has changed its view on how Section 1160(a)(1) should be
construed.
It is the possibility that BIA will pursue this last option that
raises the greatest concerns. The Supreme Court has “rejected
the argument that an agency’s interpretation ‘is not entitled to
deference because it represents a sharp break with prior inter-
pretations’ of the statute in question.” Rust v. Sullivan, 500
U.S. 173, 186 (1991) (quoting Chevron U.S.A., Inc. v. Natural
PEREZ-ENRIQUEZ v. GONZALES 11409
Res. Def. Council, Inc., 467 U.S. 837, 862 (1984)). “An initial
agency interpretation is not instantly carved in stone,”
because the agency “must consider varying interpretations
and the wisdom of its policy on continuing basis.” Chevron,
467 U.S. at 863-64. Thus, “[t]he [BIA] is not estopped from
changing a view [it] believes to have been grounded upon a
mistaken legal interpretation.” Good Samaritan Hosp. v. Sha-
lala, 508 U.S. 402, 417 (1993). I do not read the majority’s
decision to conclude that there is only one possible construc-
tion of Section 1160, so that any other construction would be
unreasonable as a matter of law. See Cuevas-Gaspar v. Gon-
zales, 430 F.3d 1013, 1026 (9th Cir. 2005) (concluding that
BIA departed from its prior practice and that its “interpreta-
tion is unreasonable, [and] we need not defer to it”). Were
BIA to change its view, we might afford its new position
something less than full Chevron deference, see Good Samar-
itan Hosp., 508 U.S. at 417; INS v. Cardoza-Fonseca, 480
U.S. 421, 446 n.30 (1987), but I don’t see that we preclude
BIA from offering a “reasonable rationale supporting its
departure from prior practice.” Seldovia Native Ass’n v.
Lujan, 904 F.2d 1335, 1345 (9th Cir. 1990).
Because I don’t think that we can prejudge how BIA should
treat this case, I respectfully dissent as to Part IV of the opin-
ion. “Generally speaking, a court of appeals should remand a
case to an agency for decision of a matter that statutes place
primarily in agency hands.” Ventura, 537 U.S. at 16. I would
grant Perez-Enriquez’s petition and remand to BIA to figure
it out.
CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
TALLMAN, and RAWLINSON, Circuit Judges, join, dissent-
ing:
As noted by the majority, this case concerns a narrow legal
issue: whether, in removal proceedings where the alien is
11410 PEREZ-ENRIQUEZ v. GONZALES
charged under 8 U.S.C. § 1227(a)(1)(A) with being inadmissi-
ble at the time of adjustment of status, the adjustment of status
date is the date the alien’s status was adjusted to legal tempo-
rary resident or the date on which it was adjusted to legal per-
manent resident. Section 1227(a)(1)(A) provides that any
“alien who at the time of entry or adjustment of status was
within one or more of the classes of aliens inadmissible by the
law existing at such time is deportable.” (Emphasis added.)
We must therefore consider whether “adjustment of status”
refers to November 10, 1988, when Perez-Enriquez presented
himself to the government and claimed that he resided in the
United States and had performed seasonal agricultural ser-
vices for at least 90 days, see 8 U.S.C. § 1160(a)(1), or
December 1, 1990, when his status was automatically
adjusted to lawful permanent resident, see 8 U.S.C.
§ 1160(a)(2). Lacking any clear instruction in the statute, we
are forced to look beyond the plain language of the statute to
determine which date the government must use.
The majority believes that Matter of Jimenez-Lopez, 20 I.
& N. Dec. 738 (BIA 1993), is dispositive. I cannot agree. The
issues decided in Jimenez-Lopez were different from the issue
presented in this case. Furthermore, the majority seeks to
impose its interpretation of Jimenez-Lopez against the govern-
ment. I continue to think that the sounder perspective is that
§ 1227(a)(1)(A) allows the respondent to use the later date as
the adjustment of status date. Accordingly, I dissent from the
majority’s contrary conclusion.1
I
Jimenez-Lopez presented a distinct factual setting and
resolved distinct legal issues. Jimenez-Lopez applied for law-
ful temporary residence under the special agricultural worker
(“SAW”) provisions on June 2, 1988. 20 I. & N. Dec. at 738-
1
I concur in the majority’s determination that we have jurisdiction to
review the petition.
PEREZ-ENRIQUEZ v. GONZALES 11411
39. On April 8, 1990, Jimenez-Lopez was returning from a
trip to Mexico. Because the car in which he was traveling was
found to contain marijuana, Jimenez-Lopez was arrested and
“charged with excludability as an alien who the immigration
officer had reason to believe was a drug trafficker,” and
paroled into the United States. Id. at 739. On October 1, 1990,
he was convicted of importation of a controlled substance and
possession of a controlled substance with intent to distribute.
Id. On December 1, 1990, Jimenez-Lopez’s status was
adjusted to lawful permanent resident pursuant to 8 U.S.C.
§ 1160(a)(2). Id.The government brought exclusion proceedings against
Jimenez-Lopez. The IJ terminated the proceedings, holding
that Jimenez-Lopez’s physical entry into the United States
and the later automatic adjustment of his status to legal per-
manent resident constituted admittance into the United States,
and he therefore was no longer excludable. Id.The BIA vacated the IJ’s termination of the exclusion pro-
ceedings. Id. at 743. It held that neither Jimenez-Lopez’s
parole into the United States on the drug charges nor the auto-
matic adjustment of his status to lawful permanent resident
constituted “entry” into the United States.2 Id. at 742. In
reaching this determination, the BIA noted that Jimenez-
Lopez’s adjustment of status to legal permanent resident after
he was paroled into the United States was automatic, and did
not include an admissibility determination. Id. at 742-43.
Accordingly, he was properly in exclusion proceedings
because he had not effected an “entry” into the United States.
Id. at 743. This determination appears to be of little assistance
to our task of determining which of two adjustments of status
dates is invoked under § 1227(a)(1)(A).
2
Indeed, the BIA noted that the SAW provisions appeared to allow an
alien to “adjust his or her status to that of lawful permanent resident even
if physically outside the United States.” 20 I. & N. Dec. at 742.
11412 PEREZ-ENRIQUEZ v. GONZALES
As noted by the majority, Jimenez-Lopez states that the
automatic adjustment to permanent legal resident under
§ 1160(a)(2) does not constitute a new determination of the
applicant’s admissibility to the United States. I do not, how-
ever, find in Jimenez-Lopez any direct support for the majori-
ty’s implicit conclusion that the critical “adjustment of status”
date for purposes of § 1227(a)(1)(A) must be one for which
there was a contemporaneous determination of admissibility.
There is nothing in Jimenez-Lopez preventing an IJ, in a sub-
sequent removal proceeding charging an alien with inadmis-
sability under § 1227(a)(1)(A), from determining an alien’s
admissibility as of the date his status was adjusted to legal
permanent resident, notwithstanding the fact that the adjust-
ment had been automatic.
In sum, Jimenez-Lopez’s holdings that the automatic adjust-
ment to legal permanent resident did not constitute an entry
and was not an admissibility determination is not dispositive
because it does not answer the question of whether under
§ 1227(a)(1)(A) the critical “adjustment of status” for pur-
poses of the unique SAW provisions is the initial adjustment
to legal temporary resident or the subsequent adjustment to
legal permanent resident.3
II
Assuming that the applicability of Jimenez-Lopez to this
case were established, I would still disagree with the majori-
ty’s position that Jimenez-Lopez is entitled to Chevron defer-
ence. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999);
see also Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984). Jimenez-Lopez was
3
Support for the use of the later date may be gleaned from the BIA’s
observation in Jimenez-Lopez that the provision allowing the Attorney
General to terminate legal temporary resident status was “permissive in
nature only,” and its suggestion that a failure to do so should not weigh
against the government. 20 I. & N. Dec. at 742.
PEREZ-ENRIQUEZ v. GONZALES 11413
decided thirteen years ago and it appears that reasonable
minds may differ as to its meaning.4 Moreover, the applicable
immigration statutes have changed considerably since 1993,
and the respondent in this case, the Attorney General of the
United States, does not share the panel’s reading of Jimenez-
Lopez. In Aguirre-Aguirre, the Supreme Court gave Chevron
deference to a position advanced by both the BIA and the
Attorney General. 526 U.S. at 424. It seems anomalous to
give deference to an agency determination that is contrary to
the position taken by the head of the agency.5
Moreover, if there is more than one possible construction
of Section 1160, then neither this court nor the BIA is bound
under Chevron to the majority’s interpretation of Jimenez-
Lopez. As noted in Judge Bybee’s concurring and dissenting
opinion, the Supreme Court has recognized that an agency
can, and should be allowed to, change its mind. The Supreme
Court has “rejected the argument that an agency’s interpreta-
tion ‘is not entitled to deference because it represents a sharp
break with prior interpretations’ of the statute in question.”
Rust v. Sullivan, 500 U.S. 173, 186 (1991) (quoting Chevron,
467 U.S. at 862). “An initial agency interpretation is not
instantly carved in stone,” because the agency “must consider
varying interpretations and the wisdom of its policy on a con-
tinuing basis.” Chevron, 467 U.S. at 863-64. Thus, “[t]he
[Attorney General] is not estopped from changing a view [he]
believes to have been grounded upon a mistaken legal inter-
pretation.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402,
4
The Immigration Judge in this case thought that Jimenez-Lopez was
instructive and that Perez-Enriquez’s “adjustment by operation of law
does not in some way constitute a waiver or estoppel of the Service’s abil-
ity to pursue the instant charge.”
5
Of course, a party might argue that an agency should be estopped from
changing its position, or that it relied on a prior agency position to its det-
riment. Such contentions, however, are very different from holding that
deference to a difficult-to-comprehend BIA opinion requires that this
court’s interpretation of that opinion trumps a contrary position advocated
by the Attorney General of the United States.
11414 PEREZ-ENRIQUEZ v. GONZALES
417 (1993). If the Attorney General is not estopped from
changing his view, how can he be bound under Chevron to an
interpretation of a BIA decision with which he does not
agree?
In this case, the court is called upon to interpret Jimenez-
Lopez and Section 1160. The majority’s statement, however,
that its interpretation is compelled by Chevron deference is,
I submit, wrong, contrary to Supreme Court precedent, and at
odds with our usual criteria for deferring to agency interpreta-
tions. See Miranda Alvarado v. Gonzales, 441 F.3d 750, 754-
59 (9th Cir. 2006) (discussing Chevron deference in immigra-
tion cases and noting the importance of the role played by the
Attorney General).
III
I remain of the opinion that the government’s perspective
is reasonable and legal. The SAW provisions applied to
numerous aliens who were in the United States illegally, and
set forth a two-step process for adjustment to permanent resi-
dent status. See 8 U.S.C. § 1160. The first step allowed these
aliens to alert the government to their presence without pen-
alty: they were granted temporary resident status. At the time
of the application, the government presumably had no knowl-
edge of the individual alien, other than what he or she set
forth in the application. The time between the adjustment to
temporary resident and the automatic adjustment to perma-
nent resident gave the government some time to investigate
the applicant. Accordingly, to the extent that an adjustment of
status determination gives an alien some additional procedural
or substantive rights against any effort by the government to
deport him or her, it makes sense to use the date of adjustment
to permanent resident, even though the adjustment is auto-
matic.
Furthermore, using the date of adjustment to lawful perma-
nent resident is consistent with the fact that the benefits
PEREZ-ENRIQUEZ v. GONZALES 11415
accorded a lawful permanent resident are far broader than
those accorded a temporary resident. The IJ determined that
in line with the benefits accruing from lawful permanent resi-
dence, “adjustment of status,” as used in 8 U.S.C.
§ 1227(a)(1)(A), should refer to the date of adjustment of sta-
tus to permanent resident.
Even if I did not find this approach persuasive, I would
affirm because Perez-Enriquez has not shown that the respon-
dent’s interpretation of the statute is unreasonable. For these
reasons, I respectfully dissent from the majority’s contrary
conclusion.