Ramos-Barrios v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL WILFREDO RAMOS BARRIOS,  No. 06-74983
Petitioner, Agency No.
v.
 A078-311-822
ERIC H. HOLDER JR., Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION
On Petition for Review of an Order
of the Board of Immigration Appeals
Submitted December 8, 2008*
Pasadena, California
Filed May 27, 2009
Amended June 26, 2009
Second Amendment September 10, 2009
Before: Before: Jerome Farris, Susan P. Graber,** and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**Judge Susan P. Graber was drawn to replace Judge William W
Schwarzer pursuant to General Order 3.2(g). Judge Graber has read the
briefs and reviewed the record.
13009
13012 RAMOS BARRIOS v. HOLDER
COUNSEL
Areg Kazaryan, Law Offices of Areg Kazaryan, Glendale,
California, for petitioner Angel Wilfredo Ramos Barrios.
John W. Blakely, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
respondent Attorney General Holder.
RAMOS BARRIOS v. HOLDER 13013
ORDER
The opinion filed May 27, 2009, and amended June 26,
2009, is further amended as follows:
Slip op. at 8044:
Replace with .
After , replace with <Id. at 12617.>.
Slip op. at 8044 n. 16:
Replace with .
Slip op. at 8045:
Replace with .
Slip op. at 8046:
Replace with .
Replace with .
Replace Id. at 6207-08.>
with Id. at 12614.>.
13014 RAMOS BARRIOS v. HOLDER
Slip op. at 8047:
Replace with .
Slip op. at 8047 n.18:
Replace with
.
Slip op. at 8049:
Replace with .
The mandate shall issue forthwith upon the filing of this
order. Petitioner’s motion to extend the July 9, 2009, order
holding the mandate in abeyance is denied as moot. No fur-
ther petitions for rehearing or rehearing en banc shall be
entertained by this panel.
OPINION
WARDLAW, Circuit Judge:
Angel Wilfredo Ramos Barrios (“Ramos”), a native and
citizen of Guatemala, petitions for review of the Board of
Immigration Appeals’ (“BIA”) affirmance of the immigration
judge’s (“IJ”) denial of his application for asylum, withhold-
ing of removal, relief under the Convention Against Torture
(“CAT”), and special rule cancellation of removal under sec-
tion 203 of the Nicaraguan Adjustment and Central American
Relief Act (“NACARA” or “the Act”). Following our recent
precedent, we hold that Ramos is ineligible for asylum and
RAMOS BARRIOS v. HOLDER 13015
withholding of removal because his refusal to join a gang
does not make him a member of a particular social group or
constitute a political opinion. We also hold as a matter of first
impression that Ramos is not entitled to NACARA relief
because a minor who seeks relief as a derivative must person-
ally satisfy the Act’s requirement of seven years of continu-
ous physical presence. Ramos’s father’s physical presence in
the United States cannot be imputed to him to satisfy this
requirement. We do not reach Ramos’s CAT claim because it
was waived. We have jurisdiction pursuant to 8 U.S.C.
§ 1252, and we deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ramos entered the United States on December 18, 2001,
without being admitted or paroled. The next day, the former
Immigration and Naturalization Service (“INS”) issued
Ramos a Notice to Appear, charging him with inadmissibility
in accordance with 8 U.S.C. § 1182(a)(6)(A)(i), and placed
him in removal proceedings. On November 1, 2002, Ramos
filed an application for asylum, withholding of removal, and
CAT relief. He also submitted an application for special rule
cancellation of removal pursuant to section 203 of NACARA.
Ramos was the sole witness at the merits hearing before the
IJ. He admitted the factual allegations and conceded inadmis-
sibility. As to his claims for relief, Ramos testified that he had
been threatened by a gang, or “mara,” while attending school
in Guatemala.1 The gang members wanted Ramos to join the
gang, but he refused. As a result, the gang members “contin-
ued to threaten [him] and started to steal things from [him].”
1
During his testimony before the IJ, Ramos did not give the name of a
particular gang; rather, he referred generally to “the gang” or “the mara.”
He conceded in his brief before the BIA that he could not specifically
identify the gang that recruited him. He suggested, however, that it was
either “Mara 18” or “Mara 13,” which are rival youth gangs in Central
America.
13016 RAMOS BARRIOS v. HOLDER
On one occasion, they cut his neck with a switchblade when
he would not give them his lunch money. The gang members
told him “[it] was a sign as to what could happen to [him].”
Ramos did not report the incidents to the police because the
gangs had warned him that if he told anyone, “they were
going to do something” to him or his family. He did tell his
family and two of his teachers about the threats, but they took
no action because, according to Ramos, they were also afraid.
Believing his life was in danger on account of the threats,
Ramos left Guatemala in December 2001. Since arriving in
the United States, he has spoken to family members who
remained in Guatemala.2 They told him that the gang mem-
bers had passed by the house in which Ramos formerly lived,
asking about and threatening him. Ramos testified that he is
scared to return to Guatemala, fearing that “it would go back
to the same thing and that [the gangs] will no longer threaten,
but something would actually happen.”
The IJ accepted Ramos’s testimony as true but nevertheless
denied all forms of relief. On appeal to the BIA, a one-
member panel adopted and affirmed the IJ’s decision, citing
Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Ramos
timely petitions for review.
II. STANDARD OF REVIEW
When the BIA cites Burbano “and does not express dis-
agreement with any part of the IJ’s decision, the BIA adopts
the IJ’s decision in its entirety.” Abebe v. Gonzales, 432 F.3d
1037, 1040 (9th Cir. 2005) (en banc). “In citing Burbano,
[t]he BIA thereby signaled that it had conducted an indepen-
2
Ramos’s mother and two older brothers still live in Guatemala. His
brothers do not live in the house in which Ramos formerly lived with his
mother. He testified that his brothers have not experienced any problems
with the gangs, nor have the gang members harmed any of his other family
members.
RAMOS BARRIOS v. HOLDER 13017
dent review of the record and had exercised its own discretion
in determining that its conclusions were the same as those
articulated by the IJ.” Arreguin-Moreno v. Mukasey, 511 F.3d
1229, 1232 (9th Cir. 2008) (alteration in original) (internal
quotation marks omitted).
We review questions of law de novo, Cerezo v. Mukasey,
512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that
deference is owed to the BIA’s determination of the govern-
ing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d
532, 535 (9th Cir. 2004). Factual findings are reviewed for
substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182,
1184-85 (9th Cir. 2006). When neither the IJ nor the BIA
makes an adverse credibility finding, we must accept a peti-
tioner’s testimony before the IJ as true. Lim v. INS, 224 F.3d
929, 933 (9th Cir. 2000).
III. DISCUSSION
A. Asylum and Withholding of Removal
[1] The Attorney General may grant asylum to an alien who
“is unable or unwilling to return to . . . [his home] country
because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); id. § 1158(b)(1)(A); see INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). The source of the perse-
cution must be a government official or an individual or group
that “the government is unwilling or unable to control.”
Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000)
(internal quotation marks omitted). To qualify for withholding
of removal, an alien must demonstrate that there is a clear
probability that he will be subject to such persecution. Al-
Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). An alien who
fails to satisfy the lower standard of proof required to estab-
lish eligibility for asylum necessarily fails to establish eligibil-
13018 RAMOS BARRIOS v. HOLDER
ity for withholding of removal. Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
[2] Ramos argues that he was persecuted on account of two
protected grounds: (1) membership in a particular social
group—namely, young males in Guatemala who are targeted
for gang recruitment but refuse because they disagree with the
gang’s criminal activities; and (2) an “anti-gang opinion” that
was political in nature, insofar as “gang activity affects the
administration of the government and the country.” We
recently have held, however, that resistance to gang member-
ship is not a protected ground. Ramos-Lopez v. Holder, No.
06-72402, 2009 WL 1012062, at *2-*6 (9th Cir. Apr. 16, 2009).3
3
We first considered the question of whether resistance to gang mem-
bership is a protected ground in Santos-Lemus v. Mukasey, 542 F.3d 738
(9th Cir. 2008). The petitioner in Santos-Lemus presented the same two
arguments that Ramos raises before us. See id. at 744-47. We held that
young men in El Salvador who resist gang violence do not constitute a
particular social group, nor does such resistance constitute an actual or
imputed political opinion. Id. at 746-47.
Our recent decision in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th
Cir. 2009) (en banc), however, requires us to rethink our approach—but
not our conclusion—in Santos-Lemus. In Marmolejo-Campos, we held
that the BIA’s interpretation of the term “moral turpitude” was entitled to
Chevron deference because the term is ambiguous and the BIA had exer-
cised its authority to give the term concrete meaning through case-by-case
adjudication. Id. at 911-12; see Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). By the time we decided Santos-Lemus,
the BIA had already published a precedential opinion that was directly on
point—Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008). Although we
reached the same conclusion as Matter of S-E-G- and found its analysis
“particularly helpful,” we noted that the BIA’s decision “[was] not binding
on us.” Santos-Lemus, 542 F.3d at 745. Marmolejo-Campos effectively
calls this reasoning into question. We explained the apparent conflict in
Ramos-Lopez:
[In Santos-Lemus,] [w]e did not analyze the BIA’s decision [in
Matter of S-E-G-] under the Chevron framework . . . . We
decided Santos-Lemus, however, before our en banc decision in
Marmolejo-Campos, in which we clarified the method by which
RAMOS BARRIOS v. HOLDER 13019
In Ramos-Lopez, we held that “young Honduran men who
have been recruited by gangs but refuse to join do not consti-
tute a particular social group.” Id. at *6. Applying Chevron
deference, we concluded that the BIA’s precedential decision
in Matter of S-E-G- “is not arbitrary and capricious.” Id. at *5.
We noted that the BIA’s decision analyzed the purported
social group using the factors set forth in our prior case law.
Id. at *4. Upon reviewing its analysis, we determined that the
BIA reasonably found “that the group was not sufficiently
particular” and “that the group lacked social visibility.” Id. at
*5.
[3] Ramos’s argument that young men in Guatemala who
resist gang recruitment constitute a social group is indistin-
guishable from the argument made in Ramos-Lopez.4 Accord-
ingly, we must reject Ramos’s argument for the reasons
explained in that case. See id. at *4-*6.
we determine the degree of deference owed to BIA decisions.
Thus, to the extent Santos-Lemus is inconsistent with Marmolejo-
Campos, the later en banc decision must control.
2009 WL 1012062, at *4 n.4 (citations omitted).
Although Matter of S-E-G was published almost two years after the
BIA’s unpublished decision in the case before us, we apply Chevron def-
erence to the BIA’s precedential decision for the reasons explained in
Ramos-Lopez. See id. at *3. We note, however, that we would reach the
same conclusion using the analytical approach set forth in either Santos-
Lemus or Ramos-Lopez.
4
That we addressed resistance to a gang in Honduras, not Guatemala,
in Ramos-Lopez does not alter our conclusion here. We specifically noted
in Ramos-Lopez that Matter of S-E-G- could not be distinguished on this
ground. See Ramos-Lopez, 2009 WL 1012062, at *4 (“[W]e recognize that
[Matter of S-E-G-] specifically addresses resistance to recruitment by the
[Mara Salvatrucha]-13 in El Salvador, not Honduras. The BIA, however,
expected its decision to apply to the same group in Honduras.”). The
BIA’s reasoning in Matter of S-E-G- is no less applicable to the Mara 13
(or an equivalent gang) in Guatemala. Because Ramos claims persecution
by either the Mara 13 or a rival Central American gang, our decision in
Ramos-Lopez controls.
13020 RAMOS BARRIOS v. HOLDER
We also addressed in Ramos-Lopez whether the petitioner
had been persecuted on account of an anti-gang political opin-
ion. Id. at *6. Turning again to Matter of S-E-G-, we deferred
under Chevron “to the BIA’s reasonable interpretation of
‘political opinion’ for the same reason we defer[red] to the
BIA’s reasonable interpretation of ‘particular social group.’ ”
Id. We also relied on our decision in Santos-Lemus.5 Id.
[4] In Santos-Lemus, we found that the petitioner had “pro-
vided no evidence that his opposition to the gang’s criminal
activity was based on political opinion [or] . . . that he was
politically or ideologically opposed to the ideals espoused by
the Mara or to gangs in general.” 542 F.3d at 747. Rather, the
available evidence suggested “that Santos-Lemus was victim-
ized for economic and personal reasons.” Id. We held that
“[t]hese motivations do not constitute persecution on account
of political opinion.” Id. We also rejected Santos-Lemus’s
contention that he was persecuted on account of an imputed
political opinion, reasoning that “Santos-Lemus neither stated
in his application for asylum, nor in his testimony at his hear-
ing, that he . . . refused to join the gang,” and that no evidence
suggested “that the gang held any sort of belief system that
they perceived Santos-Lemus to oppose.” Id. Accordingly, we
affirmed the BIA’s determination that “a general aversion to
gangs does not constitute a political opinion for asylum pur-
poses.” Id.
We concluded that Ramos-Lopez’s case was indistinguish-
5
In Ramos-Lopez, we noted that we deferred in Santos-Lemus “to the
BIA’s determination that ‘resistance to a gang’s recruitment efforts alone
does not constitute political opinion.’ ” 2009 WL 1012062, at *6 (alter-
ations omitted) (quoting Santos-Lemus, 542 F.3d at 747). We did not,
however, apply Chevron deference in Santos-Lemus in holding that the
petitioner was not persecuted on account of his political opinion. Rather,
we merely noted that the BIA had reached the same conclusion in Matter
of S-E-G. See Santos-Lemus, 542 F.3d at 747. Because Santos-Lemus had
not exhausted this claim before the BIA and, in any event, it was “wholly
unsupported by the record,” we readily rejected it. Id.
RAMOS BARRIOS v. HOLDER 13021
able. 2009 WL 1012062, at *6. Because Ramos-Lopez “al-
lege[d] no facts in support of a political opinion, actual or
imputed, beyond his refusal to join the [gang],” we found that
he had failed to prove persecution on account of a protected
ground. Id.
[5] Here, Ramos similarly failed to present evidence that he
was politically or ideologically opposed to the ideals espoused
by the gang that recruited him (or to gangs in general), or that
the gang imputed to him any particular political belief. The
evidence instead supports the conclusion that the gang victim-
ized him for economic and personal reasons. That gang mem-
bers attacked Ramos and cut his neck just after unsuccessfully
trying to rob him reinforces this conclusion. Although Ramos
did state in his asylum application that he refused to join the
gang, this fact alone does not save his claim. Santos-Lemus’s
failure to state in his application or during his hearing that he
refused to join the gang was not the dispositive factor for
rejecting his claim. See 542 F.3d at 746-47. We therefore
reject Ramos’s argument that he was persecuted on account
of a political opinion for the reasons explained in Ramos-
Lopez and Santos-Lemus.
[6] Because Ramos failed to demonstrate that he was perse-
cuted on account of a protected ground, we deny the petition
as to his asylum and withholding of removal claims.6
6
We therefore do not address Ramos’s remaining arguments as to asy-
lum and withholding of removal. Nor do we reach Ramos’s claim for CAT
relief. He waived this claim by failing to include it in his opening appellate
brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)
(“[A]n issue referred to in the appellant’s statement of the case but not dis-
cussed in the body of the opening brief is deemed waived.”). Even if
Ramos had not waived this claim, we would reject it on the merits because
the injuries he suffered do not rise to the level of torture, see Kumar v.
Gonzales, 444 F.3d 1043, 1055-56 (9th Cir. 2006), and he failed to meet
the heavy burden of proving that it is more likely than not that he will be
tortured upon removal to Guatemala, see Kamalthas v. INS, 251 F.3d
1279, 1283 (9th Cir. 2001).
13022 RAMOS BARRIOS v. HOLDER
B. Relief Under NACARA
Ramos argues that the BIA erred in concluding that he is
ineligible for NACARA relief on the grounds that (1) special
rule cancellation of removal (“special rule cancellation”)
requires seven years of continuous physical presence for the
minor children of NACARA beneficiaries; and (2) Ramos’s
father’s physical presence cannot be imputed to him to satisfy
this requirement. We agree with the BIA.
1. Section 203 of NACARA
[7] On November 19, 1997, President Clinton signed into
law NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2193-
2201 (1997), amended by Pub. L. No. 105-139, 111 Stat.
2644, 2644-45 (1997). NACARA provides various forms of
immigration benefits and relief from removal to certain Gua-
temalans and nationals of other Central American and former
Soviet Bloc countries. Section 203 of NACARA allows quali-
fied individuals to apply for special rule cancellation under
the more lenient standards that existed before the passage of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009.
See Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1093 (9th
Cir. 2005); Munoz v. Ashcroft, 339 F.3d 950, 955-56 (9th Cir.
2003). Agency regulations interpreting special rule cancella-
tion closely track the text of IIRIRA and NACARA. See 8
C.F.R. §§ 1240.61, .66.
2. Whether Ramos Satisfies One of the Threshold
Requirements
[8] To qualify for special rule cancellation, an applicant
first must show that he falls into one of the five groups identi-
fied in 8 C.F.R. § 1240.61(a).7 As an initial matter, we must
7
Section 1240.61(a) implements section 309(c)(5)(C)(i) of IIRIRA, as
amended by section 203 of NACARA.
RAMOS BARRIOS v. HOLDER 13023
briefly address whether we have jurisdiction to consider the
BIA’s ruling that Ramos failed to satisfy one of these thresh-
old requirements. We hold that we do. Section
309(c)(5)(C)(ii) of IIRIRA, as amended by section 203(b) of
NACARA, appears to limit our jurisdiction to review an agen-
cy’s determination that an applicant failed to satisfy one of the
threshold requirements set forth in section 309(c)(5)(C)(i).
However, “section 106 of the Real ID Act of 2005 restored
our jurisdiction over ‘constitutional claims or questions of
law’ raised in a petition for review.” Dhital v. Mukasey, 532
F.3d 1044, 1049 (9th Cir. 2008) (per curiam). In Ramadan v.
Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam), we held
that such questions of law include “not only ‘pure’ issues of
statutory interpretation, but also application of law to undis-
puted facts, sometimes referred to as mixed questions of law
and fact.” Id. at 648; see also Khunaverdiants v. Mukasey,
548 F.3d 760, 765 (9th Cir. 2008); Ghahremani v. Gonzales,
498 F.3d 993, 998-99 (9th Cir. 2007). Because the IJ accepted
Ramos’s testimony as true and none of the facts pertaining to
Ramos’s NACARA application is in dispute, we have juris-
diction to consider whether the BIA properly applied the law.
[9] We conclude that the BIA erred in adopting the IJ’s
conclusion that Ramos failed to satisfy one of the threshold
requirements. Ramos stated in his NACARA application and
argued to the IJ that he was eligible for relief under section
1240.61(a)(4). The IJ acknowledged this fact during an initial
hearing. Addressing Ramos’s counsel, he stated: “You’re
arguing that [Ramos] falls under the fourth paragraph [of sec-
tion 1240.61(a)], which is that he is the child of a person who
is applying for NACARA.” Subsection (a)(4) provides that
“[a]n alien who is the spouse or child of an individual
described in paragraph (a)(1), (a)(2), or (a)(3) of this section
at the time a decision is made to suspend the deportation, or
cancel the removal, of the individual described in paragraph
(a)(1), (a)(2), or (a)(3)” is eligible for special rule cancella-
tion, subject to certain exceptions not relevant here. 8 C.F.R.
§ 1240.61(a)(4). Subsections (a)(1) through (3) classify the
13024 RAMOS BARRIOS v. HOLDER
individual aliens who qualify for suspension of deportation or
special rule cancellation. Despite the IJ’s acknowledgment
that Ramos claimed relief under subsection (a)(4), the IJ mis-
takenly analyzed Ramos’s claim under subsection (a)(5). Sub-
section (a)(5) applies only to an applicant who “is 21 years of
age or older at the time a decision is made to [grant NACARA
relief to the applicant’s parent],” id. § 1240.61(a)(5)(i), and
requires a showing that the applicant “[e]ntered the United
States on or before October 1, 1990,” id. § 1240.61(a)(5)(ii).
This subsection is plainly inapplicable because, as the IJ
found, Ramos was only seventeen years old when he applied
for NACARA relief. Therefore, subsection (a)(4) applies,
which Ramos undoubtedly satisfies based on the facts found
by the IJ.8
[10] Ramos’s father, Roberto Ramos Chamale
(“Chamale”), was granted NACARA relief in the form of per-
manent resident status on May 25, 2004.9 Moreover, Ramos
qualifies as Chamale’s “child” as defined in 8 U.S.C.
§ 1101(b)(1). Ramos therefore was eligible for NACARA
relief subject to meeting the physical presence requirement.
3. Whether Ramos Satisfies the Physical Presence
Requirement
[11] To establish eligibility for special rule cancellation
under the amended version of section 309(f)(1) of IIRIRA, the
8
Because the IJ already made the predicate factual findings, we need not
remand under INS v. Ventura, 537 U.S. 12 (2002) (per curiam). Further,
we note that the government did not request a Ventura remand for the IJ
to apply (a)(4) instead of (a)(5). Indeed, the question of Ramos’s threshold
eligibility for NACARA relief has never been contested.
9
Chamale’s NACARA application indicates that he qualified for relief
pursuant to section 1240.61(a)(1). The IJ suggested, however, that he qual-
ified under subsection (a)(2). Neither party addressed this issue in its
briefs. Because it is undisputed that Chamale was granted NACARA relief
under one of the first three subsections of 8 C.F.R. § 1240.61(a), we need
not resolve this issue.
RAMOS BARRIOS v. HOLDER 13025
applicant must be “described in [section 309](c)(5)(C)(i)” and
must establish the requisite physical presence.10 This physical
presence requirement is set forth in 8 C.F.R. § 1240.66(b)(2)11
: “The alien has been physically present in the United States
for a continuous period of 7 years immediately preceding the
date the application was filed.” It is undisputed that Ramos
did not personally meet this requirement.
a. Applicability of the Physical Presence Requirement
Ramos first disputes that special rule cancellation requires
seven years of physical presence for the minor children of
NACARA beneficiaries. He notes that the amended version of
section 309(c)(5)(C)(i)(III) of IIRIRA does not include a
physical presence requirement, and contends that Form I-881,
the NACARA application, confirms this interpretation of the
Act. Although Ramos accurately describes subsection III, he
fails to consider section 309 in its entirety. The amended sec-
tion 309(f)(1) expressly states that an applicant must be “de-
scribed in [section 309](c)(5)(C)(i) . . . and . . . ha[ve] been
physically present in the United States for a continuous period
of not less than 7 years immediately preceding the date of
such application.” 111 Stat. 2198 (emphasis added). Form I-
881 exactly mirrors the wording of section 309, and thus is of
little aid to Ramos’s argument.
[12] Ramos also incorrectly suggests that the regulations
themselves support his interpretation. Section 1240.66
unequivocally states that to be eligible for NACARA relief,
an applicant “must be described in § 1240.61” and must sat-
isfy the physical presence requirement. 8 C.F.R. § 1240.66(a),
(b)(2). The relevant legislative history also undermines
Ramos’s argument that there is no seven-year physical pres-
10
Section 309(f)(1) of IIRIRA includes other eligibility requirements
that are not at issue here.
11
Section 1240.66 (b)(2) implements section 309(f)(1)(A)(ii) of IIRIRA,
as amended.
13026 RAMOS BARRIOS v. HOLDER
ence requirement for derivative NACARA applicants. See,
e.g., 143 Cong. Rec. S12265-01, S12266-67 (daily ed. Nov.
9, 1997) (Explanatory Memorandum Regarding Title II of the
D.C. Appropriations Potion [sic] of the Omnibus Appropria-
tions Bill Submitted by Messrs. Mack, Graham, Abraham,
Kennedy, and Durbin) (section-by-section analysis of
NACARA). We therefore hold that a minor who qualifies for
NACARA relief as a derivative under 8 C.F.R.
§ 1240.61(a)(4) must satisfy the seven-year physical presence
requirement set forth in 8 C.F.R. § 1240.66(b)(2).
b. Imputation of a Parent’s Physical Presence for
Purposes of NACARA Relief
Ramos would satisfy the physical presence requirement if
his father’s physical presence in the United States were
imputable to him for purposes of NACARA relief. For the
reasons explained below, we hold that it is not.
(i) Deference to the BIA
We must first consider the level of deference, if any, owed
to the IJ’s determination and the BIA’s adoption of the rule
disallowing imputation. A single-member BIA panel affirmed
the IJ’s decision in an unpublished, nonprecedential decision.12
Such decisions are entitled to only Skidmore,13 rather than
12
The BIA has not addressed in a published (or unpublished) opinion
whether a parent’s physical presence may be imputed to his child for pur-
poses of NACARA relief. The single-member BIA panel that affirmed the
IJ’s decision should have referred the appeal to a three-member panel, as
it presented the need to establish precedent construing the meaning of the
amended section 309(f)(1) of IIRIRA. See Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1012-13 (9th Cir. 2006) (holding that “[a] case must be
decided by a three-member panel [of the BIA] if it presents ‘[t]he need to
establish a precedent construing the meaning of laws, regulations, or pro-
cedures’ ” (third alteration in original) (quoting 8 C.F.R.
§ 1003.1(e)(6)(ii)).
13
Skidmore v. Swift & Co., 323 U.S. 134 (1944).
RAMOS BARRIOS v. HOLDER 13027
Chevron, deference. See Garcia-Quintero v. Gonzales, 455
F.3d 1006, 1013-15 (9th Cir. 2006). In Skidmore, the Supreme
Court held that a nonbinding administrative interpretation car-
ries a weight “depend[ent] upon the thoroughness evident in
its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.”
323 U.S. at 140; see United States v. Mead Corp., 533 U.S.
218, 237-38 (2001) (holding that Skidmore remained intact
after Chevron and that Skidmore deference applies when
Chevron deference does not). If the reasons provided by the
BIA to support its conclusion are not persuasive, then we
must review de novo the question before us. Garcia-Quintero,
455 F.3d at 1015.
The BIA did not even address Ramos’s imputation argu-
ment, nor did it provide any reasoning for its determination
that Ramos failed to meet the physical presence requirement.
Moreover, it did not cite any precedent of the BIA or our cir-
cuit. That the BIA adopted the IJ’s decision does not
strengthen the BIA’s basis for rejecting Ramos’s argument.
The IJ merely noted that he was unaware of any precedent
that had directly allowed such imputation, but did not address
the cases Ramos cited to support his argument. Therefore, we
review de novo the remaining question presented by Ramos’s
petition: Should a minor who applies for NACARA relief as
a derivative of his parent be permitted to impute his parent’s
physical presence for purposes of satisfying the seven-year
requirement?
(ii) Analogous Precedent
[13] While we have not previously addressed whether a
parent’s physical presence can be imputed to his minor child
for purposes of NACARA relief, we have interpreted analo-
gous immigration statutes.
13028 RAMOS BARRIOS v. HOLDER
In Lepe-Guitron v. INS, 16 F.3d 1021, 1022 (9th Cir. 1994),
we addressed the concept of “imputation” in the context of a
discretionary waiver of deportation under the now-repealed
Immigration and Nationality Act (“INA”) section 212(c),14 8
U.S.C. § 1182(c), which required, inter alia, seven years of
“lawful unrelinquished domicile.” We held that a parent’s
“lawful unrelinquished domicile” can be imputed to his minor
child. Lepe-Guitron, 16 F.3d at 1022. The petitioner, a minor,
had “legally entered the United States with his parents, was
always legally within the country, was domiciled here, but
acquired permanent resident status . . . many years after his
parents achieved it” because of a processing error attributable
to the INS. Id. at 1024. We first observed that section 212(c)
“was enacted to alleviate the harsh effects of deportation on
those aliens who have lawfully established substantial ties to
the United States.” Id. at 1023. We then reasoned that,
“[b]ecause children naturally form the strongest of ties to the
place where their parents are domiciled and they with them,
section 212(c)’s core policy concerns would be directly frus-
trated by the government’s proposal to ignore the parent’s
domicile in determining that of the child.” Id. at 1025.
We found further support for our analysis in Congress’s use
of the term “domicile.” Id. Adopting the common law defini-
tion of “domicile”—that “aliens must not only be physically
present [in the United States], but must intend to remain”—
we reached the “unremarkable” conclusion that “a child’s
domicile follows that of his or her parents.” Id. (internal quo-
tation marks omitted).We explained that “because children
are, legally speaking, incapable of forming the necessary
intent to remain indefinitely in a particular place,” they cannot
determine their own domicile. Id. Finally, we noted that other
sections of the INA giving “a high priority to the relation
between permanent resident parents and their children”
strengthened our analysis. Id.
14
Section 212(c) was repealed by IIRIRA, § 304(b), 110 Stat. at 3009-
597. See INS v. St. Cyr, 533 U.S. 289, 297 (2001).
RAMOS BARRIOS v. HOLDER 13029
Two years after we decided Lepe-Guitron, Congress
replaced section 212(c) with INA section 240A(a), 8 U.S.C.
§ 1229b(a), which governs cancellation of removal for lawful
permanent residents.15 See St. Cyr, 533 U.S. at 297. Because
section 240A(a) modified section 212(c) in several key
respects, our holding in Lepe-Guitron came into question. In
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005),
we reaffirmed Lepe-Guitron’s viability and extended its hold-
ing to § 1229b(a)’s requirement of seven years of continuous
residence in the United States.
Cuevas-Gaspar had lived in the United States since he was
one year old, but he did not attain lawful permanent residence
until he was approximately thirteen. Id. at 1016. He sought
cancellation of removal less than seven years later. Id. Both
the IJ and the BIA concluded that he was ineligible for can-
cellation of removal because he failed to satisfy § 1229b(a)’s
requirement of seven years of continuous residence after
admission. Id. at 1016-17; see 8 U.S.C. § 1229b(a)(2).
Applying the two-step Chevron inquiry and determining
that deference to the BIA was not warranted, Cuevas-Gaspar,
430 F.3d at 1026, we held that “for purposes of satisfying the
seven-years of continuous residence ‘after having been admit-
ted in any status’ required for cancellation of removal under
8 U.S.C. § 1229b(a), a parent’s admission for permanent resi-
dent status is imputed to the parent’s unemancipated minor
15
Title 8 U.S.C. § 1229b(a) provides:
The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States if
the alien—
(1) has been an alien lawfully admitted for permanent resi-
dence for not less than 5 years,
(2) has resided in the United States continuously for 7 years
after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
13030 RAMOS BARRIOS v. HOLDER
children residing with the parent,” id. at 1029. Instructed by
Lepe-Guitron, we reasoned that the difference between “law-
ful unrelinquished domicile” and residence “after having been
admitted in any status” was not “so great as to be dispositive”
and “[did] not justify a departure from the INA’s policy of
putting a high priority on relations between permanent legal
residents and their children.” Id. at 1026.
We also cited specific examples to demonstrate that “both
the BIA and this court repeatedly have held that a parent’s
status, intent, or state of mind is imputed to the parent’s un-
emancipated minor child in many areas of immigration law,
including asylum, grounds of inadmissibility, and legal resi-
dency status.” Id. at 1024. We first discussed Vang v. INS,
146 F.3d 1114 (9th Cir. 1998), in which we applied the princi-
ples articulated in Lepe-Guitron to the question of whether
“aminor has firmly resettled in another country.” Id. at 1116.
We noted in Vang that, under INS regulations, the child of a
refugee or asylee is generally entitled to the same legal status
as her parent. Id. Because “it would be unreasonable to hold
an adolescent responsible for arranging or failing to arrange
permanent resettlement,” id. (internal quotation marks omit-
ted), we concluded that we must “look to whether the minor’s
parents have firmly resettled in a foreign country before com-
ing to the United States, and then derivatively attribute the
parents’ status to the minor,” id. at 1116-17.
Next, we addressed Senica v. INS, 16 F.3d 1013 (9th Cir.
1994), in which we agreed with the BIA that a parent’s
knowledge of ineligibility for admission to the United States
should be imputed to her children. Id. at 1015-16. We con-
cluded in Senica that “[t]he BIA’s decision here was not a
departure from its previous practice of imputing a parent’s
state of mind, or failure to reasonably investigate, to an une-
mancipated minor child.” Id. at 1016. Finally, we observed in
Cuevas-Gaspar “that the BIA has commonly imputed a par-
ent’s abandonment of permanent legal resident status to the
parent’s minor children.” 430 F.3d at 1025 (citing, for exam-
RAMOS BARRIOS v. HOLDER 13031
ple, Matter of Zamora, 17 I. & N. Dec. 395, 396 (BIA 1980)
(holding that the voluntary and intended abandonment of law-
ful permanent resident status by the parent of an unemanci-
pated minor child is imputed to the child); Matter of Winkens,
15 I. & N. Dec. 451, 452 (BIA 1975) (holding that parents’
abandonment of lawful permanent resident status was
imputed to their minor child “who was subject to their cus-
tody and control”)).
We then turned to Congress’s intent in enacting § 1229b.
Cuevas-Gaspar, 430 F.3d at1026-27. Relying on the relevant
legislative history, we determined that Congress had replaced
section 212(c) with section 240A(a) to resolve the conflicting
interpretations of “unrelinquished lawful domicile,” not to
narrow the continuous residency rule. Id. at 1028.
We left open the question of whether a parent’s permanent
resident status may be imputed to his child for purposes of
§ 1229b(a)’s five-year residency requirement. Id. at 1021 n.5;
see 8 U.S.C. § 1229b(a)(1) (requiring a showing that an alien
has been “lawfully admitted for permanent residence for not
less than 5 years”). We recently answered this question in
Mercado-Zazueta v. Holder, No. 07-71428 (9th Cir. 2009).
Relying on our reasoning in Lepe-Guitron and Cuevas-
Gaspar, we held that, “for purposes of satisfying the five
years of lawful permanent residence required under . . .
§ 1229b(a)(1), a parent’s status as a lawful permanent resident
is imputed to the unemancipated minor children residing with
that parent.” Id. at 12617.
(iii) Application to NACARA
We reject Ramos’s argument that we should extend our
reasoning in Lepe-Guitron and Cuevas-Gaspar16 to impute a
parent’s physical presence in the United States to his minor
16
Mercado-Zazueta had not yet been published when the parties filed
their briefs.
13032 RAMOS BARRIOS v. HOLDER
child for purposes of satisfying NACARA’s seven-year physi-
cal presence requirement. The meaning of “physical pres-
ence” is quite distinct from the requirements we have
previously held to be imputable. Indeed, the difference in
meaning is “so great as to be dispositive,” Cuevas-Gaspar,
430 F.3d at 1026. Moreover, neither NACARA’s legislative
history nor its underlying policy compels a different conclu-
sion.
[14] Our precedent demonstrates that we impute a parent’s
status, intent, or state of mind to satisfy immigration criteria
that an unemancipated minor child must meet. The require-
ments at issue in Lepe-Guitron (“lawful unrelinquished domi-
cile”), Cuevas-Gaspar (“admitted in any status”), Mercado-
Zazueta (“lawfully admitted for permanent residence”), Vang
(“firmly resettled”), Senica (knowledge of ineligibility), and
Matter of Zamora (abandonment of lawful permanent resident
status) are all terms of art that include an element of status,
intent, or state of mind. We have allowed imputation precisely
because the minor either was legally incapable of satisfying
one of these criteria or could not reasonably be expected to
satisfy it independent of his parents. In Lepe-Guitron, for
example, we used “a definition of domicile consonant with its
common law meaning: that aliens must not only be physically
present here, but must intend to remain.” 16 F.3d at 1025
(internal quotation marks omitted). We explained that “a
child’s domicile follows that of his or her parents” because
“children are, legally speaking, incapable of forming the nec-
essary intent to remain indefinitely in a particular place.” Id.
Accordingly, we imputed to the petitioner his parents’ years
of “lawful unrelinquished domicile” in the United States.
In Cuevas-Gaspar, our decision to impute turned on the
meaning of “admitted,” which is defined as “the lawful entry
of the alien into the United States after inspection and authori-
zation by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
Although the petitioner had lived in the United States with his
lawfully admitted mother since he was one, he was not “ad-
RAMOS BARRIOS v. HOLDER 13033
mitted” until he was thirteen. Cuevas-Gaspar, 430 F.3d at
1016. Analogizing to our precedent and that of the BIA, we
suggested that it would be unreasonable to hold a minor, who
was subject to his mother’s custody and control, responsible
for failing to satisfy this administrative procedure. Id. at 1024
-25. Because policy considerations and the legislative history
of § 1229b added support to our statutory analysis, see id. at
1026-29, we imputed to the petitioner his mother’s “admitted”
status for purposes of satisfying the seven years of continuous
residence after having been “admitted in any status” required
for cancellation of removal, id. at 1029.
Mercado-Zazueta followed directly from Lepe-Guitron and
Cuevas-Gaspar. Addressing § 1229b(a)’s requirement that an
alien have been “lawfully admitted for permanent residence”
—defined as “the status of having been lawfully accorded the
privilege of residing permanently in the United States as an
immigrant in accordance with the immigration laws, such sta-
tus not having changed”17 —for not less than five years, we
reasoned that the difference between “lawful unrelinquished
domicile” and “lawfully admitted for permanent residence”
was no greater than the difference between “lawful unrelin-
quished domicile” and and “lawfully admitted,” Mercado-
Zazueta, No. 07-71428, at 12609-10. We thus concluded that
the BIA’s interpretation of § 1229b(a) was unreasonable and
that “Cuevas-Gaspar compels the conclusion[ ] that imputa-
tion . . . is appropriate.” Id. at 12614; see also Vang, 146 F.3d
at 1116-17 (discussing whether the petitioner had “firmly
resettled,” as defined in 8 C.F.R. § 1208.15).
[15] By contrast, the definition of “physical presence” does
not require a specific “status, intent, or state of mind.”
Cuevas-Gaspar, 430 F.3d at 1024. Because “physically pres-
ent” is not defined in section 203, in 8 U.S.C. § 1101, or in
any of the relevant regulations, see 8 C.F.R. §§ 1240.60, .61,
.66, “we give it its ordinary meaning.” United States v. San-
17
8 U.S.C. § 1101(a)(20).
13034 RAMOS BARRIOS v. HOLDER
tos, 128 S. Ct. 2020, 2024 (2008). The relevant dictionary
definition of “physically”/“present” is “corporeally”/“being in
the place in question or under consideration.” Oxford English
Dictionary XI:746, XII:395 (2d ed. 1989). Our case law gen-
erally relies on this meaning of “physically present.” For
example, in Kalaw v. INS, 133 F.3d 1147 (9th Cir. 1997),
where we examined the transitional rules of IIRIRA, we
explained that “[t]he first eligibility requirement, continuous
physical presence, must be determined from the facts, not
through an exercise of discretion. Either the petitioner has
been continuously present in the United States for seven years
or the petitioner has not.” Id. at 1151. In other words, the defi-
nition of “physical presence” is a state of being, not a state of
mind; it is not conferred by an immigration officer or a gov-
ernmental agency; it depends on no legal construct.18 There-
fore, it can be attained as readily by a minor as by his parent.
[16] The distinction between physical presence, on the one
hand, and status, intent, state of mind, and analogous con-
cepts, on the other, is readily observed here. Unlike the peti-
tioners in Lepe-Guitron, Cuevas-Gaspar, and Mercado-
Zazueta, Ramos had not lived in the United States for almost
his entire life when he applied for relief; he had only just
arrived. Ramos necessarily would have satisfied the physical
presence requirement had he been in the custody of his father
(who was physically present in the United States for more
than a decade before Ramos arrived). In other words, unlike
the petitioners in our prior decisions, Ramos had no additional
18
As a practical matter, most persons intend to be physically present in
the particular place in which they are located, but this is not always the
case. Strictly speaking, intent is irrelevant to physical presence. More spe-
cifically, why someone is physically present in the United States is irrele-
vant for purposes of the statutory requirement at issue here; all that matters
is that the person is physically present. It is therefore logical that, unlike
in the requirements we examined in Lepe-Guitron, Cuevas-Gaspar, and
Mercado-Zazueta, “physical presence” does not incorporate intent as an
element.
RAMOS BARRIOS v. HOLDER 13035
legal or administrative hurdles to clear beyond mere presence.19
Ramos was either corporeally within the borders of the United
States or he was not. Because he was not, he cannot meet the
physical presence requirement, and there is no legal basis for
imputing his father’s physical presence.
Nor does NACARA’s legislative history support Ramos’s
argument that Congress intended to allow minors to impute
their parents’ physical presence for purposes of relief under
the Act. The legislative history does not mention imputation,
which Ramos does not dispute. Rather, he argues that,
because “[t]he law was passed to assist individuals to gain
legal status in the United States,” allowing imputation would
be consistent with the “spirit of NACARA.” While we agree
that Congress’s primary goal in enacting NACARA was to
decrease obstacles to asylum relief for qualified individuals,20
19
We leave open the question of whether a child under the age of seven
who was present in the United States when his parent filed an asylum
application could be granted NACARA relief. See Dep’t of Justice, INS,
Rules and Regulations, Suspension of Deportation and Special Rule Can-
cellation of Removal for Certain Nationals of Guatemala, El Salvador, and
Former Soviet Bloc Countries, 64 Fed. Reg. 27856-01, 27861 (May 21,
1999) [hereinafter Rules and Regulations], available at 1999 WL 316287
(noting that if a child is present in the United States at the time his parent’s
asylum application is filed, she is “considered to have filed an application
for asylum on the date the principal’s asylum application was filed”).
20
We previously have recognized that “Congress enacted section 203 of
NACARA in reaction to IIRIRA’s severe consequences in making thou-
sands of immigrants, including those from Guatemala, ineligible for sus-
pension of deportation.” Albillo-De Leon, 410 F.3d at 1096. Moreover, the
legislative history suggests that a flexible approach should be used in
interpreting and applying NACARA. See, e.g., 143 Cong. Rec. at S12266
(“[G]iven the special solicitude Congress is showing toward the Eligible
Class Members by enacting [NACARA] . . . it would . . . be entirely con-
sistent with that intent for the Attorney General . . . not to challenge appli-
cations for relief by Eligible Class Members on hardship grounds if the
applicant satisfies the seven-year presence and good moral character
requirements.”); see also White House, Office of Commc’ns, Statement on
DC Appropriations Act 11/19/97 (Nov. 24, 1997) (statement of President
Clinton), available at 1997 WL 727883 (“I . . . am asking the Attorney
General to consider the ameliorative purposes of [NACARA] and the
unique history and circumstances of the people covered by it in giving
effect to its provisions.”).
13036 RAMOS BARRIOS v. HOLDER
we disagree that this goal justifies imputing a parent’s physi-
cal presence under section 203. An individual must first be
deemed “qualified” before he can reap the benefits of
NACARA relief.
Statements made by the INS around the time NACARA
went into effect also undercut Ramos’s argument:
[S]ection 203 of NACARA . . . allow[s] children and
spouses to apply for relief under NACARA, even if
they had not been continuously physically present in
the United States for 7 years at the time NACARA
was enacted or implemented. To meet the physical
presence requirement, the spouse or child must have
7 years of continuous physical presence in the
United States . . . as of the date the application for
relief was filed.
Rules and Regulations, at 27861 (emphasis added). Although
the INS was not directly addressing the question before us, its
statements necessarily assume that the spouse or child must
independently satisfy the seven-year requirement. Particularly
in light of Congress’s silence on imputation in the legislative
history, these statements support the conclusion we reach
through our statutory interpretation—that Congress did not
intend to allow imputation in this context.
Ramos also makes three policy arguments for allowing
imputation of his father’s physical presence: (1) that “our
immigration statutes and regulations are replete with provi-
sions ‘giving a high priority to the relation between perma-
nent resident parents and their children,’ ” Cuevas-Gaspar,
430 F.3d at 1024 (quoting Lepe-Guitron, 16 F.3d at 1025); (2)
that he would suffer a “peculiar or unusual hardship” if we
refuse to impute his father’s physical presence to him, Lepe-
Guitron, 16 F.3d at 1024 (internal quotation marks omitted);
and (3) that we adhere to “the general canon of construction
that resolves ambiguities in favor of the alien,” Cuevas-
RAMOS BARRIOS v. HOLDER 13037
Gaspar, 430 F.3d at 1029; see also Hernandez v. Ashcroft,
345 F.3d 824, 840 (9th Cir. 2003).
None of these general considerations persuades us that
imputation is appropriate here. Although we have allowed
imputation for purposes of satisfying a number of require-
ments in immigration statutes, we have not done so when nei-
ther the statutory language nor the legislative history
supported that result. Moreover, as already discussed, the key
fact supporting the policy rationales articulated in Lepe-
Guitron, Cuevas-Gaspar, and Mercado-Zazueta—that the
minor resided with his or her family in the United States—is
absent here. Not only has Ramos lived in Guatemala nearly
all his life, but most of his family still lives there. Thus, he has
not “formed strong ties to the United States.” Lepe-Guitron,
16 F.3d at 1025. Because disallowing imputation in this con-
text does not sever the “bonds between parents and their chil-
dren who had resided legally in the United States for the
better part of their lives,” id., it does not frustrate the “just and
humane goal of providing relief to those for whom deporta-
tion would result in peculiar or unusual hardship,” id. at 1024
(internal quotation marks omitted). Finally, while the text of
NACARA does not explicitly prohibit imputation, neither is
it ambiguous, as our statutory analysis makes clear. There-
fore, we need not read it in the light most favorable to Ramos.
[17] For the foregoing reasons, we conclude that Ramos is
ineligible for asylum, withholding of removal, CAT relief, or
special rule cancellation of removal. Accordingly, we deny
his petition for review.
PETITION DENIED.