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

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.