Pedroza-Padilla v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODOLFO PEDROZA-PADILLA,  No. 03-74640
Petitioner,
Agency No.
v.
 A27-620-873
ALBERTO R. GONZALES, Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 16, 2006
Submission Vacated October 6, 2006
Resubmitted January 18, 2007
Pasadena, California
Filed May 15, 2007
Before: Alex Kozinski, Diarmuid F. O’Scannlain, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge O’Scannlain
5735
PEDROZA-PADILLA v. GONZALES 5737
COUNSEL
Barbara K. Strickland, San Deigo, California, argued the
cause for the petitioner and filed briefs in support of the peti-
tioner.
Erica B. Miles, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Washington, D.C.,
argued the cause and filed a brief for the respondent. Peter D.
Keisler, Assistant Attorney General, Civil Division, and Terri
J. Scadron, Assistant Director, were on the brief. Peter D.
Keisler, Assistant Attorney General, Civil Division, Linda S.
Wernery, Assistant Director, and Erica B. Miles, Attorney,
Office of Immigration Litigation, U.S. Department of Justice,
filed a supplemental brief in support of the respondent.
5738 PEDROZA-PADILLA v. GONZALES
ORDER
Respondent’s request for publication is GRANTED. The
memorandum disposition, located at 2007 WL 295496 (9th
Cir. Jan. 29, 2007), is withdrawn. A superseding opinion will
be filed simultaneously with this Order. No further petitions
for rehearing or rehearing en banc may be filed.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a waiver of inadmissibility under
the Immigration Reform and Control Act also waives the
legalization requirement that an alien have resided continu-
ously in the United States since January 1, 1982.
I
A
Rodolfo Pedroza-Padilla (“Pedroza”), a Mexican national,
first entered the United States without inspection in Novem-
ber 1980. Pedroza was subsequently ordered deported from
the United States in 1984, was given until January 5, 1985 to
depart voluntarily, but failed to depart until March 27, 1985.
He subsequently reentered the United States, and on October
18, 1986, the Immigration and Naturalization Service (“INS”)
initiated deportation proceedings against Pedroza with an
Order to Show Cause alleging that he had entered the United
States without inspection in violation of 8 U.S.C. § 1251(a)(2)
(1986). On October 30, 1986, an immigration judge (“IJ”)
granted Pedroza’s motion to close his deportation proceeding
administratively so that he could file for adjustment of status
to that of an alien lawfully admitted for temporary residence
pursuant to 8 U.S.C. § 1255a, which provides eligibility based
PEDROZA-PADILLA v. GONZALES 5739
on, among other things, continuous residence in the United
States since January 1, 1982.
On June 24, 1988, Pedroza’s legalization application was
denied by the Director, Western Service Center, of the INS.
The Director reasoned that Pedroza could not demonstrate
continuous residence within the meaning of 8 U.S.C.
§ 1225a(g)(2)(B)(i) because he had left the United States in
1985 under an order of deportation. Subsequent to this denial,
the INS promulgated an implementing regulation stating that
an alien shall be regarded as having resided continuously if,
inter alia, “[the] alien’s departure from the United States was
not based on an order of deportation.” C.F.R.
§ 245a.1(c)(1)(iii) (1991). When Pedroza’s appeal finally
reached the Administrative Appeals Office (“AAO”) on
December 31, 1997, the AAO noted that a challenge to this
regulation as applied to aliens like Pedroza had recently been
dismissed in Proyecto San Pablo v. INS, 4 F. Supp. 2d 881
(D. Ariz. 1997). It therefore dismissed his appeal.
On August 29, 2000, the INS filed a motion to recalendar
Pedroza’s deportation proceedings. Between the date of the
LAU’s denial of Pedroza’s legalization petition and the INS’
motion, however, we reversed the Proyecto San Pablo deci-
sion that the LAU had cited in denying his legalization appli-
cation. See Proyecto San Pablo v. INS, 189 F.3d 1130 (9th
Cir. 1999). Consequently, when Pedroza next appeared before
the IJ on December 12, 2000, he argued that his deportation
should be terminated on the grounds that he was a putative
class member in the subsequently reinstated Proyecto San
Pablo litigation.
On March 16, 2001, the district court in the Proyecto San
Pablo litigation ordered the INS to “reopen and readjudicate
all legalization applications,” like Pedroza’s, “previously
denied on the basis of 8 U.S.C. § 1255a(g)(2)(B)(i),” and
issued “a stay of removal . . . to all legalization applicants
whose applications ha[d] been denied” on that basis. Proyecto
5740 PEDROZA-PADILLA v. GONZALES
San Pablo v. INS, No. 89-00456-WDB, at *5 (D. Ariz. Mar.
16, 2001) (order reopening class cases). Referencing that
order, Pedroza again argued that his deportation proceeding
should be terminated or administratively closed.
On August 8, 2002, the IJ rejected all of Pedroza’s argu-
ments. Finding Pedroza eligible for voluntary departure, how-
ever, the IJ gave him one year to leave the United States. He
appealed the IJ’s decision to the Board of Immigration
Appeals (“BIA”) which affirmed without opinion on Novem-
ber 18, 2003. Pedroza timely seeks review of that decision.
B
While Pedroza’s appeal was pending here, he filed a
motion for a supplemental stay of deportation. From that
motion, we learned that Pedroza’s legalization application had
been reopened pursuant to Proyecto San Pablo and denied on
May 12, 2005, by the AAO. After oral argument on August
16, 2006, we ordered supplemental briefing on whether we
had jurisdiction to review the such denial.1 On October 6,
2006, we vacated submission and ordered the parties to brief
the merits of the AAO’s May 12, 2005 denial.
II
[1] Pedroza first contends that the IJ improperly denied his
application to suspend deportation proceedings by retroac-
tively applying the stop-time rule of the Illegal Immigration
Reform & Immigrant Responsibility Act of 1996, 8 U.S.C.
§ 1229b(d)(1), to his case. We reject Pedroza’s argument. The
language of the stop-time rule plainly indicates that it applies
to a case such as Pedroza’s. Ram v. INS, 243 F.3d 510, 516
1
We conclude that we do have jurisdiction to review the May 12, 2005,
denial under 8 U.S.C. § 1244a(f)(4), permitting judicial review of denials
of legalization applications in conjunction with judicial review of an order
of deportation.
PEDROZA-PADILLA v. GONZALES 5741
(9th Cir. 2001). Also, we are satisfied that application of the
stop-time rule in this instance is not unconstitutionally retro-
active after INS v. St. Cyr, 533 U.S. 289 (2001). See Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002).2
III
[2] Pedroza next contends that the May 12, 2005 denial of
his legalization application by the AAO was an abuse of dis-
cretion. A legalization applicant must establish that he: (1)
applied for legalization during a twelve month period begin-
ning May 5, 1987; (2) resided unlawfully in the United States
continuously since at least January 1, 1982; (3) has been
physically present in the United States continuously since
November 6, 1986; and (4) is otherwise admissible as an
immigrant. See Proyecto San Pablo, 189 F.3d at 1134 (citing
8 U.S.C. §§ 1255a(a)(1)-(4)).
[3] The AAO held that because Pedroza was deported from
the United States on March 27, 1985, a waiver of inadmissi-
bility was useless to him. In short, the AAO determined that
even if he received such waiver, he would continue to be inel-
igible for legalization because he had not resided continuously
in the United States since at least January 1, 1982. See 8
U.S.C. § 1255a(g)(2)(B)(i). The AAO explained:
Congress set forth, at section 245A(d)(2) of the Act,
[8 U.S.C. § 1255a(d)(2),] a provision to waive cer-
tain grounds of inadmissibility under section 212(a)
of the Act[, 8 U.S.C. § 1182(a)]. Section 245A(g)(2)
of the Act, concerning continuous residence, is a
separate section unrelated to the waiver provisions.
Congress provided no relief in the legalization pro-
gram for failure to maintain continuous residence
2
Petitioner’s argument that the IJ should have terminated the removal
proceedings because he had a legalization application pending is now
moot because his legalization application has been reopened and denied.
5742 PEDROZA-PADILLA v. GONZALES
due to a departure under an order of deportation.
Relief is provided in the Act for absences based on
factors other than deportation, specifically absences
that were prolonged due to emergencies and
absences approved under the advance parole provi-
sions. Clearly, with respect to maintenance of con-
tinuous residence, it was not congressional intent to
provide relief for absences under an order of depor-
tation. While the applicant’s failure to maintain con-
tinuous residence, and his inadmissibility for having
been deported and having returned without authori-
zation, both stem from the deportation, a waiver is
possible only for the inadmissibility under section
212(a)(9)(A)(ii)(II).
We agree with the foregoing analysis that nothing in the stat-
ute compels Pedroza’s argument that continuous residence
may be waived.3
[4] In any event, there is a logical basis for the AAO’s
reading of the statute, namely that aliens deported prior to
January 1, 1982 are inadmissible because of the deportation,
yet eligible for legalization under Proyecto San Pablo, 189
F.3d at 1134, and therefore potentially deserving of a waiver
of inadmissibility. Because there was no showing of continu-
ous residence to qualify for legalization, there was no abuse
of discretion in the AAO’s determination and we thus also
deny petitioner’s motion for stay of removal.
PETITION DENIED.
3
Petitioner raises several issues in this appeal that were not properly
raised before the agency. While we deny the government’s motion to
strike parts of petitioner’s brief, we do not reach the merits of these new
issues because “[f]ailure to raise an issue below constitutes failure to
exhaust administrative remedies and ‘deprives this court of jurisdiction to
hear the matter.’ ” Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997)
(quoting Vargas v. INS, 831 F.2d 906, 907 (9th Cir. 1987)).