Minto v. Jefferson Sessions , 854 F.3d 619 ( 2017 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MINTO,                                     No. 12-74027
    Petitioner,
    Agency No.
    v.                      A087-957-024
    JEFFERSON B. SESSIONS III, Attorney
    General,                                     OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted February 23, 2017
    Honolulu, Hawaii
    Filed April 17, 2017
    Before: Alex Kozinski, Michael Daly Hawkins,
    and Carlos T. Bea, Circuit Judges.
    Opinion by Judge Bea
    2                      MINTO V. SESSIONS
    SUMMARY *
    Immigration
    The panel denied Minto’s petition for review of the
    Board of Immigration Appeals’ decision finding him
    inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because
    he lacked a valid entry document “at the time of application
    for admission.”
    The panel held that Minto is an immigrant who lacked a
    valid entry document. The panel also held that he is deemed
    by law to have made a continuing application for admission
    because he was in the Commonwealth of the Northern
    Mariana Islands without admission or parole on November
    28, 2009, the date United States immigration laws became
    applicable to the CNMI.         The panel held that the
    Immigration Judge and BIA therefore correctly concluded
    that Minto was inadmissible under 8 U.S.C. § 1182(a)(7).
    COUNSEL
    Joseph E. Horey (argued), O’Connor Berman Dotts &
    Banes, Saipan, Commonwealth of the Northern Mariana
    Islands, for Petitioner.
    Jessica E. Burns (argued), Senior Litigation Counsel; Ashley
    Martin, Trial Attorney; Mary Jane Candaux, Assistant
    Director; Office of Immigration Litigation, Civil Division,
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    MINTO V. SESSIONS                        3
    United States Department of Justice, Washington, D.C.; for
    Respondent.
    OPINION
    BEA, Circuit Judge:
    In 2009, the immigration laws of the United States took
    effect in the Commonwealth of the Northern Mariana Islands
    (“CNMI”), a group of islands in the Pacific Ocean. 1 An
    immigration judge (“IJ”) then ordered Minto, 2 who was in
    the CNMI, removed on the basis of 8 U.S.C.
    § 1182(a)(7)(A)(i)(I), which makes an immigrant
    inadmissible if he lacks a valid entry document “at the time
    of application for admission.” The Board of Immigration
    Appeals (“BIA”) dismissed Minto’s subsequent appeal. He
    now petitions this Court for review, arguing that 8 U.S.C.
    § 1182(a)(7)(A)(i)(I) does not apply to him because he never
    applied for admission to the United States at a definite time.
    We deny Minto’s petition for review because we conclude
    that he is an immigrant who lacked a valid entry document
    and is deemed by law to have made a continuing application
    for admission by being present in the CNMI, an application
    1
    Located just north of Guam, the CNMI is a three-hundred mile
    archipelago consisting of 14 islands, with a total land area of 183.5
    square miles. The principal inhabited islands are Saipan, Rota and
    Tinian. The northern, largely uninhabited islands are Farallon de
    Medinilla, Anatahan, Sariguan, Gudgeon, Alamagan, Pagan, Agrihan,
    Asuncion, Maug Islands, and Farallon de Pajaro. See COMMONWEALTH
    OF THE NORTHERN MARIANA ISLANDS, https://www.doi.gov/oia/
    islands/cnmi (last visited March 8, 2017).
    2
    The petitioner in this case has a single name.
    4                    MINTO V. SESSIONS
    that was considered and denied during his removal
    proceedings.
    FACTUAL AND PROCEDURAL HISTORY
    A. The Commonwealth of the Northern Mariana
    Islands
    Previously Spanish possessions, the Northern Mariana
    Islands first came under United States control after World
    War II. See U.S. ex rel. Richards v. De Leon Guerrero,
    
    4 F.3d 749
    , 751 (9th Cir. 1993). In 1976, Congress, the
    Northern Mariana Islands District Legislature, and the
    people of the Northern Mariana Islands approved a Covenant
    to Establish a Commonwealth of the Northern Mariana
    Islands in Political Union with the United States of America
    (the “Covenant”). See Pub. L. No. 94-241, 90 Stat. 263,
    265–66 (1976) (joint resolution of Congress approving the
    Covenant and setting out its text). Under the Covenant, the
    new Commonwealth of the Northern Mariana Islands
    delegated “complete responsibility” for some matters—such
    as foreign affairs and defense—to the United States, but
    retained “the right of local self-government . . . with respect
    to internal affairs.” Covenant art. 1, §§ 103–104.
    Initially, immigration was reserved to the CNMI. See
    Covenant § 503(a) (“The following laws of the United
    States . . . will not apply to the Northern Mariana Islands
    . . . : (a) [] the immigration and naturalization laws of the
    United States.”). This changed in 2008 when Congress
    passed the Consolidated Natural Resources Act (“CNRA”),
    codified in relevant part at 48 U.S.C. §§ 1806–1808. The
    MINTO V. SESSIONS                              5
    CNRA provided that the “immigration laws” 3 of the United
    States “shall apply” to the CNMI no later than December 1,
    2009. See 
    id. § 1806(a)(1)
    (setting June 1, 2009 as the
    “transition program effective date”—that is, the date that the
    U.S. immigration laws would take effect in the CNMI); 
    id. § 1806(a)(3)
    (authorizing the Secretary of Homeland
    Security to “delay[] [the transition program effective date]
    for a period not to exceed more than [sic] 180 days after such
    date”). U.S. immigration laws became applicable to the
    CNMI on November 28, 2009. See 8 C.F.R. § 1001.1(bb).
    Also, the CNRA “made the CNMI part of the United States
    within the meaning of the Immigration and Nationality Act.”
    Eche v. Holder, 
    694 F.3d 1026
    , 1027 (9th Cir. 2012) (citing
    CNRA § 702, Pub. L. No. 110-229, 122 Stat. 754, 866
    (2008); 8 U.S.C. § 1101(a)(36), (a)(38)). Therefore, since
    November 28, 2009, the CNMI has been part of the United
    States for purposes of the immigration laws.
    B. Minto’s History in the CNMI
    Minto is a native of Bangladesh. He arrived in the CNMI
    by plane in 1997 and was admitted with a nonresident
    worker entry permit. In 2003, he married Maria Aurelio Ray
    (“Ray”), a citizen of the Federated States of Micronesia 4 and
    a resident of the CNMI. After his marriage, Minto received
    an entry permit under section 706D of the Northern Mariana
    Islands Immigration Regulations as an immediate relative of
    3
    The CNRA incorporates by reference 8 U.S.C. § 1101(a)(17),
    which defines the term “immigration laws” as “all laws, conventions,
    and treaties of the United States relating to the immigration, exclusion,
    deportation, expulsion, or removal of aliens.” See 48 U.S.C. § 1806(a).
    4
    The Federated States of Micronesia (“FSM”) is an independent
    country, but it has signed a Compact of Free Association with the United
    States. Citizens of the FSM are not United States citizens.
    6                   MINTO V. SESSIONS
    a resident of the CNMI. See 7 N. Mar. I. Reg. 3786–87 (July
    22, 1985).
    In 2008, the CNMI Director of Immigration revoked
    Minto’s 706D entry permit because a CNMI court had
    convicted Ray of two counts of conspiracy to commit
    marriage fraud. Minto was also convicted of conspiracy to
    commit marriage fraud and solicitation a few months after
    his wife’s convictions. The convictions did not involve
    Minto’s marriage to Ray, the legitimacy of which has not
    been questioned. According to the CNMI Director of
    Immigration, Ray was “deportable” because of this felony
    offense, and Ray could therefore no longer serve as the
    sponsoring spouse for Minto’s 706D entry permit. Minto
    appealed the decision to revoke his entry permit to the CNMI
    Attorney General on the basis that Ray’s conviction was not
    final because Ray had filed a motion for a new trial, which
    was awaiting adjudication.
    C. Procedural History
    On May 12, 2010, the Department of Homeland Security
    (“DHS”) served Minto with a Notice to Appear (“NTA”).
    Allegedly, Minto was “an immigrant not in possession of a
    valid unexpired immigration visa . . . or other valid entry
    document.” The NTA charged Minto with being removable
    from the United States based on §§ 212(a)(6)(A)(i) and
    212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
    (“INA”), codified at 8 U.S.C. §§ 1182(a)(6)(A)(i),
    1182(a)(7)(A)(i)(I). Section 1182(a)(6) states that an alien
    is inadmissible if that alien is “present in the United States
    without being admitted or paroled.” Section 1182(a)(7)
    states that an immigrant is inadmissible if the immigrant
    lacks a valid entry document “at the time of application for
    admission.”
    MINTO V. SESSIONS                      7
    The IJ sustained the charge under § 1182(a)(7). The IJ
    ordered Minto removed.
    Minto appealed the removal order to the BIA. Before the
    BIA, Minto moved for a remand to apply for parole under a
    new program created by the United States Citizenship and
    Immigration Services (“USCIS”) called Parole for
    Immediate Relatives of U.S. Citizens and Certain Stateless
    Individuals (“the USCIS program”). The BIA dismissed the
    petition for review, thereby affirming the removal order, and
    denied the motion for remand. The BIA found that Minto
    was not entitled to parole under the USCIS program because
    Minto did not provide evidence of lawful presence in the
    CNMI as of November 27, 2011. Specifically, the BIA
    found that he had failed to provide documentation that Ray
    had filed a motion for a new trial, that Ray had appealed the
    conviction, or that Minto’s appeal of the revocation of his
    entry permit was successful.
    Minto then filed a timely petition for review with this
    Court, arguing that he is not removable under § 1182(a)(7).
    JURISDICTION AND STANDARD OF REVIEW
    This Court reviews the BIA’s legal determinations de
    novo. De Martinez v. Ashcroft, 
    374 F.3d 759
    , 761 (9th Cir.
    2004). The BIA’s factual findings are reviewed for
    “substantial evidence,” and this Court will not reverse the
    BIA’s factual findings “unless the evidence compels a
    contrary result.” Gallegos-Vasquez v. Holder, 
    636 F.3d 1181
    , 1184 (9th Cir. 2011). Since the BIA decision agreed
    with the IJ’s reasoning in dismissing Minto’s petition for
    review, this Court reviews both decisions. See Kumar v.
    Holder, 
    728 F.3d 993
    , 998 (9th Cir. 2013).
    8                    MINTO V. SESSIONS
    ANALYSIS
    A. Minto is removable under § 1182(a)(7)
    The CNRA made the CNMI subject to the immigration
    laws of the United States a year before removal proceedings
    were commenced against Minto. See supra p. 4–5. The
    CNRA states that all of the INA’s grounds of removability
    apply to individuals within the CNMI with one exception.
    See 48 U.S.C. § 1806(e)(4) (“Except as specifically provided
    in paragraph (1)(A) of this subsection, nothing in this
    subsection shall prohibit or limit the removal of any alien
    who is removable under the Immigration and Nationality
    Act.”). The only exception states that “no alien who is
    lawfully present in the [CNMI]” as of November 28, 2009,
    “shall be removed . . . on the grounds that such alien’s
    presence in the [CNMI] is a violation of . . . 8 U.S.C.
    § 1182(a)(6)(A)” until “the completion of the period of the
    alien’s admission under immigration laws of the
    Commonwealth; or . . . 2 years after the transition program
    effective date.” See 48 U.S.C. § 1806(e)(1)(A).
    However, section 212(a)(7) of the INA, codified at
    8 U.S.C. § 1182(a)(7), provides a different ground for
    removability than does § 1182(a)(6)(A): failure to possess a
    valid entry document at the time of application for
    admission. Minto was served with the NTA on May 12,
    2010, after the CNMI became subject to United States
    immigration laws. Therefore, § 1182(a)(7) is potentially
    applicable to Minto.
    Section 1182(a)(7) states in relevant part:
    Except as otherwise specifically provided in
    this chapter, any immigrant at the time of
    application for admission . . . who is not in
    MINTO V. SESSIONS                            9
    possession of a valid unexpired immigrant
    visa, reentry permit, border crossing
    identification card, or other valid entry
    document required by this chapter . . . is
    inadmissible.
    8 U.S.C. § 1182(a)(7)(A)(i)(I). Section 1182(a)(7) has three
    elements: the individual in question (1) is an immigrant
    (2) who “at the time of application for admission” (3) lacks
    a valid entry document.
    The government has established the first element. Minto
    is an “immigrant” because this term applies to “every alien”
    except certain aliens, including ambassadors and temporary
    workers, who are specifically designated “nonimmigrant
    aliens.” See 8 U.S.C. § 1101(a)(15). Before this Court,
    Minto does not challenge that he is an immigrant. 5
    The government has also established the third element.
    Minto has never had “a visa, reentry permit, border crossing
    identification card, or other valid entry document” to the
    United States. Minto agrees.
    The parties dispute the second element, whether Minto
    is an “applicant for admission.” We conclude he is because
    an immigrant in Minto’s position is deemed by law to be
    making a continuing application for admission by his mere
    presence in the CNMI. 8 U.S.C. § 1225(a)(1) states that
    “[a]n alien present in the United States who has not been
    admitted or who arrives in the United States . . . shall be
    deemed for purposes of this chapter an applicant for
    admission.” As noted above, the immigration laws of the
    5
    Minto unsuccessfully argued that he was not an immigrant to the
    IJ and the BIA, but does not repeat that argument before us.
    10                  MINTO V. SESSIONS
    United States were made applicable to the CNMI on
    November 28, 2009. Therefore, Minto, who was present in
    the CNMI without admission or parole on November 28,
    2009, is “deemed” to be “an applicant for admission.”
    Nor did Minto’s status as an applicant for admission
    terminate at any point. There is a “well-established
    immigration practice that treats an application for admission
    as a continuing one.” Matter of Valenzuela-Felix, 26 I&N
    Dec. 53, 59 (BIA 2012). Accordingly, the Second, Fifth and
    Seventh Circuits have held that the relevant facts and law for
    determining a petitioner’s admissibility are those in
    existence “at the time the application is finally considered”
    by the agency. Ali v. Reno, 
    22 F.3d 442
    , 448 n.3 (2d Cir.
    1994) (internal quotation marks and citation omitted); see
    also Munoz v. Holder, 
    755 F.3d 366
    , 372 (5th Cir. 2014)
    (same); Palmer v. I.N.S., 
    4 F.3d 482
    , 485 n.11 (7th Cir. 1993)
    (same). We agree and hold that Minto’s application for
    admission that began on the transition program effective date
    continued until it was considered by the IJ.
    8 U.S.C. § 1229a, which governs removal proceedings,
    including Minto’s, assumes that an alien in removal
    proceedings will present a continuing application for
    admission.       8 U.S.C. § 1229a(a)(3) states, “[u]nless
    otherwise specified in this chapter, a proceeding under this
    section shall be the sole and exclusive procedure for
    determining whether an alien may be admitted to the United
    States or, if the alien has been so admitted, removed from the
    United States.” During a § 1229a removal proceeding, “if
    the alien is an applicant for admission,” the alien has the
    burden of establishing that he is “clearly and beyond doubt
    entitled to be admitted and is not inadmissible under section
    1182 of this title[.]”           8 U.S.C. § 1229a(c)(2)(A).
    Alternatively, the alien must show by “clear and convincing
    MINTO V. SESSIONS                     11
    evidence” that he is “lawfully present in the United States
    pursuant to a prior admission.” 8 U.S.C. § 1229a(c)(2)(B).
    Therefore, § 1229a(c)(2) contemplates that the alien in a
    removal proceeding is necessarily either an “applicant for
    admission” whose continuing application will be considered
    during that proceeding or an alien who alleges he is already
    lawfully present in the United States because of a prior
    admission.
    For the foregoing reasons, we hold that an immigrant
    may be found inadmissible under § 1182(a)(7) when the
    immigrant is found to lack a valid entry document during a
    removal proceeding.
    B. Interpreting § 1182(a)(7) to apply to Minto is not
    contrary to Congress’s intent in enacting the
    CNRA
    Minto argues that this interpretation of § 1182(a)(7), as
    applied to aliens in the CNMI, would undermine Congress’s
    intent in passing the CNRA. It is true that, as noted above,
    the CNRA did create a transition period in which aliens
    lawfully present in the CNMI could not be removed on the
    basis of § 1182(a)(6). 48 U.S.C. § 1806(e)(1)(A).
    But holding that Minto is removable under § 1182(a)(7)
    would not contravene Congress’s intent to offer limited
    protection from removal as expressed in 48 U.S.C.
    § 1806(e)(1)(A). First, the CNRA expressly states that,
    except for the temporary exemption from removability under
    § 1182(a)(6), “nothing in this subsection shall prohibit or
    limit the removal of any alien who is removable under the
    Immigration and Nationality Act.” 48 U.S.C. § 1806(e)(4).
    Indeed, this Court has previously recognized that “[t]he
    CNRA’s plain text commands that the exceptions to the
    principle that the immigration laws of the United States
    12                      MINTO V. SESSIONS
    apply to the CNMI be restricted to those explicitly set forth
    in the statute[.]” United States v. Yong Jun Li, 
    643 F.3d 1183
    , 1185 (9th Cir. 2011).
    Also, the CNRA itself provided a mechanism for aliens
    lawfully present in the CNMI to avoid removal under
    § 1182(a)(7).    The CNRA directed the Secretary of
    Homeland Security to establish a program to provide
    nonimmigrant worker visas for aliens present in the CNMI.
    48 U.S.C. § 1806(d)(2). This program was implemented by
    regulation. 8 C.F.R. § 214.2(w). Furthermore, as noted
    above, USCIS implemented a program that allowed certain
    CNMI aliens to receive parole under 8 U.S.C. § 1182(d)(5) 6
    on a case-by-case basis. USCIS determined that Minto
    himself was ineligible for this program because he could not
    demonstrate lawful presence and because of his conviction
    for conspiracy and solicitation to commit marriage fraud. 7
    6
    This section allows the Attorney General to temporarily parole into
    the United States an alien applying for admission “on a case-by-case
    basis for urgent humanitarian reasons or significant public benefit[.]”
    8 U.S.C. § 1182(d)(5)(A).
    7
    The parties dispute whether Minto was lawfully present in the
    CNMI on November 28, 2009. According to Minto, his administrative
    appeal from his entry permit revocation made his continuing presence in
    the CNMI lawful. According to the government, Minto’s appeal became
    moot on November 28, 2009, when CNMI officials lost the authority to
    enforce their own immigration laws. Also, the government states that
    Minto did not introduce evidence demonstrating that his appeal was still
    pending as of November 28, 2009, or was successful. We need not
    decide this issue since lawful presence in the CNMI under CNMI law
    would not save Minto from being removable under 8 U.S.C. § 1182(a)(7)
    because he lacked a valid entry permit. Minto does not argue that his
    706D entry permit, the revocation of which he allegedly appealed, was a
    “valid entry document” for purposes of § 1182(a)(7).
    MINTO V. SESSIONS                    13
    CONCLUSION
    We deny Minto’s petition for review. Minto is an
    immigrant who lacked a valid entry document when his
    continuing application for admission was considered by the
    IJ during his removal proceeding. Therefore, the IJ and the
    BIA correctly concluded that Minto was inadmissible under
    8 U.S.C. § 1182(a)(7).
    DENIED.