Francisco Garcia-Mendez v. Loretta E. Lynch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO GARCIA-MENDEZ, No. 12-73430
Petitioner,
Agency No.
v. A077-975-209
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 8, 2015—Pasadena, California
Filed June 8, 2015
Before: Andrew J. Kleinfeld and Richard R. Clifton,
Circuit Judges and Richard Seeborg,* District Judge.
Opinion by Judge Seeborg
*
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
2 GARCIA-MENDEZ V. LYNCH
SUMMARY**
Immigration
The panel denied Francisco Garcia-Mendez’s petition for
review of the Board of Immigration Appeals’ denial of his
application for special rule cancellation of removal for
battered spouses.
The panel held that Garcia-Mendez was not entitled to
seek an 8 U.S.C. § 1182(h)(2) waiver of inadmissibility in
conjunction with his special rule cancellation application.
The panel held that an alien does not meet the definition of a
Violence Against Women Act “self-petitioner” by sole virtue
of being an applicant for special rule cancellation. The panel
further held that an applicant for special rule cancellation
does not become eligible to seek a § 1182(h) waiver by virtue
of that status.
COUNSEL
Martin C. Fontes (argued), Law Office of Martin C. Fontes,
APC, Santa Ana, California, for Petitioner.
Meadow D. Platt (argued), Trial Attorney, Stuart F. Delery,
Acting Assistant Attorney General, and Greg D. Mack,
Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARCIA-MENDEZ V. LYNCH 3
OPINION
SEEBORG, District Judge:
Francisco Garcia-Mendez petitions for review of an order
by the Board of Immigration Appeals (“BIA”) dismissing his
challenge to a decision by an immigration judge (“IJ”)
denying his application for special rule cancellation of
removal for battered spouses under 8 U.S.C. § 1229b(b)(2)
(“special rule cancellation”). We are asked to determine
whether Garcia-Mendez was entitled to seek a waiver of
inadmissibility under 8 U.S.C. § 1182(h)(2) (“section
212(h)”) in conjunction with his application for special rule
cancellation. We conclude that his status as a special rule
cancellation applicant did not render him eligible to pursue a
section 212(h) waiver, nor did he qualify for such relief under
any alternative approach. Accordingly, we deny Garcia-
Mendez’s petition for review.
I. FACTS
Garcia-Mendez, a native and citizen of Mexico, first
entered the United States, without admission, in 1989. In
2001, the immigration authorities served Garcia-Mendez with
a Notice to Appear, which alleged that he was removable
under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the
United States without being admitted or paroled. In May
2002, less than two weeks before his scheduled removal
hearing, Garcia-Mendez married a United States citizen
named Crystal Lopez.
On May 28, 2002, the immigration court in Los Angeles
conducted a removal hearing. Garcia-Mendez, represented
by counsel, conceded the allegations in the Notice to Appear
4 GARCIA-MENDEZ V. LYNCH
and admitted that he was subject to removal from the United
States. Several months later, however, Garcia-Mendez filed
an application for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1) (“standard cancellation”), asserting that his
removal would result in exceptional and extremely unusual
hardship to his citizen wife.
For reasons immaterial to the instant proceedings, Garcia-
Mendez’s application for standard cancellation remained
pending for several years. In September 2003, during the
pendency of that application, Garcia-Mendez was convicted
in Orange County Superior Court of three California crimes:
(1) possessing, receiving, or uttering forged paper; (2) second
degree burglary of a commercial structure; and (3) attempted
petty theft. In August of 2004, Garcia-Mendez separated
from his wife.
On June 4, 2007, Garcia-Mendez filed an I-360 petition
seeking designation as a Violence Against Women Act self-
petitioner (“VAWA self-petitioner”) on the grounds that his
wife had battered him. According to the petition, Lopez had
subjected Garcia-Mendez to verbal abuse, thrown household
items at him, and forced him to sleep in his car. As Garcia-
Mendez explained in his filing, classification as a VAWA
self-petitioner would enable him to seek a section 212(h)
waiver of inadmissibility. Absent a section 212(h) waiver,
Garcia-Mendez conceded, he would be disqualified from
relief by his 2003 convictions. Specifically, he
acknowledged, those convictions constituted crimes involving
moral turpitude (“CIMTs”) and, absent a waiver, would bar
him from satisfying the good moral character requirement
found at 8 U.S.C. § 1154(a)(1)(A)(iii)(II)(bb). United States
Citizenship and Immigration Services (“USCIS”) rejected
Garcia-Mendez’s I-360 petition on April 1, 2010, determining
GARCIA-MENDEZ V. LYNCH 5
he had failed to meet his burden of demonstrating that he
married Lopez in good faith and that the couple had
resided in the same household. See 8 U.S.C.
§ 1154(a)(1)(A)(iii)(I)(aa), (II)(dd). As a result, Garcia-
Mendez was denied classification as a VAWA self-petitioner.
Garcia-Mendez next filed an application for special rule
cancellation. As in his I-360 petition, he again argued that he
was entitled to a section 212(h) waiver absolving the
disqualifying effect of his CIMT convictions. On September
27, 2010, the IJ issued an oral decision denying Garcia-
Mendez’s application for special rule cancellation. Upon
determining that Garcia-Mendez’s past convictions qualified
as CIMTs, the IJ reasoned he was facially ineligible for
special rule cancellation. The IJ then rejected Garcia-
Mendez’s argument that he was entitled to apply for a waiver
of inadmissibility under section 212(h). The IJ ordered
Garcia-Mendez removed to Mexico. Due to a transcription
error affecting the September 27, 2010 decision, the IJ issued
a new decision on October 11, 2011 essentially repeating the
substance of the prior decision. Garcia-Mendez appealed to
the BIA, which affirmed the IJ’s rulings in an unpublished
decision. We have jurisdiction over Garcia-Mendez’s
petition for review under 8 U.S.C. §§ 1252(a)(1), (a)(2)(D).
II. STANDARD OF REVIEW
Generally, when the BIA addresses a question in an
unpublished decision, the agency’s ruling is not entitled to
deference under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Garcia-Quintero
v. Gonzales, 455 F.3d 1006, 1013–14 (9th Cir. 2006). If, on
the other hand, the BIA has interpreted an ambiguous
provision of the Immigration and Nationality Act (“INA”) in
6 GARCIA-MENDEZ V. LYNCH
a published precedential decision, we must apply Chevron
deference, so long as the agency’s decision is based on a
permissible construction of the statute. Negusie v. Holder,
555 U.S. 511, 516–17 (2009). This rule applies equally to an
unpublished BIA order which relies on a directly-controlling,
precedential agency decision. Uppal v. Holder, 605 F.3d 712,
714 (9th Cir. 2010). An agency’s interpretation of an
ambiguous statute will be permissible “unless arbitrary,
capricious, or manifestly contrary to the statute.” Wilderness
Society v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059
(9th Cir. 2003) (en banc) (internal quotation marks omitted).
If, however, “the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842–43.
III. DISCUSSION
Garcia-Mendez asks us to hold that he is eligible to apply
for a waiver of inadmissibility under section 212(h) in
conjunction with his application for special rule cancellation
of removal. He needs the waiver to eliminate the effect of his
CIMT convictions, which otherwise render him ineligible for
special rule cancellation. In attempting to avail himself of
section 212(h) relief, Garcia-Mendez advances two paths to
eligibility. First, as an applicant for special rule cancellation,
he claims thereby to satisfy the INA’s definition of a VAWA
self-petitioner. Those so classified are expressly permitted to
seek section 212(h) waivers. 8 U.S.C. § 1182(h)(1)(C) (“The
Attorney General may, in his discretion” waive certain
grounds of inadmissibility if “the alien is a VAWA self-
petitioner” and other requirements have been met). In the
alternative, should he not be entitled to VAWA self-petitioner
status, Garcia-Mendez argues that he is otherwise entitled to
GARCIA-MENDEZ V. LYNCH 7
seek a section 212(h) waiver solely by virtue of his status as
an applicant for special rule cancellation.
A. VAWA Self-Petitioners and Special Rule Cancellation
Applicants
The term “VAWA self-petitioner” is specifically and
exhaustively defined under the INA as “an alien, or a child of
the alien, who qualifies for relief under” one of several
enumerated provisions expressly incorporated into the
definition. 8 U.S.C. § 1101(a)(51)(A)–(G). Aliens who
apply for special rule cancellation are nowhere to be found in
the definitional list. Because the statute is “complete and
unambiguous on its face,” our inquiry is at an end. Emmert
Indus. Corp. v. Artisan Assocs., Inc., 497 F.3d 982, 987 (9th
Cir. 2007). Garcia-Mendez is not, solely as a consequence of
his application for special rule cancellation, a VAWA self-
petitioner.
We are not swayed by the fact that both VAWA self-
petitioner status and special rule cancellation relief were
created by the Violence Against Women Act for the purpose
of providing immigration benefits to aliens battered by citizen
spouses. Indisputably, VAWA “was a generous enactment,
intended to ameliorate the impact of harsh provisions of
immigration law on abused women,” and its provisions
should therefore be “interpreted and applied in an
ameliorative fashion.” Lopez-Birrueta v. Holder, 633 F.3d
1211, 1215–16 (9th Cir. 2011) (internal quotation marks
omitted). This principle, however, cannot overcome the
manifest intent of Congress, as clearly expressed in the INA’s
exclusive definition of a VAWA self-petitioner. See Durand
v. U.S. Dep’t of Labor, 662 F.3d 1106, 1109 (9th Cir. 2011)
(holding that arguments that “remedial statutes should be
8 GARCIA-MENDEZ V. LYNCH
construed liberally in favor of their beneficiaries” cannot
“override the principle that the ordinary meaning of words in
a statute controls”). Presumably, had Congress intended to
classify special rule cancellation applicants as VAWA self-
petitioners, it would have expanded the definitional list found
at 8 U.S.C. § 1101(a)(51)(A)–(G) to include aliens who apply
for special rule cancellation under 8 U.S.C. § 1229b(b)(2).1
Nor does Garcia-Mendez otherwise satisfy the definition
of a VAWA self-petitioner. In June 2007, prior to submitting
the application now at issue, Garcia-Mendez filed an I-360
petition seeking classification as a VAWA self-petitioner
under 8 U.S.C. § 1154(a)(1)(A)(iii)(I).2 USCIS denied the
petition, finding (among other things) that Garcia-Mendez
had not demonstrated his marriage to Lopez was entered into
in good faith. While it is undisputed that VAWA self-
petitioners may apply for a section 212(h) waiver, as the
agency correctly found, Garcia-Mendez simply does not
qualify for that designation.3 We must next decide whether
1
As demonstrated elsewhere in the INA, Congress was capable of
singling out special rule cancellation applicants for benefits when it so
intended. 8 U.S.C. § 1641(c)(1)(B)(v) (authorizing aliens who make out
a prima facie case for special rule cancellation to seek public benefits).
2
Section 1154(a)(1)(A)(iii)(I), operating together with 8 U.S.C.
§ 1255(a), allows an alien battered by a citizen spouse (or intended
spouse) to seek adjustment of status to that of a permanent resident. An
applicant who “qualif[ies] for” this relief meets the definition of VAWA
self-petitioner and is, in turn, entitled to seek the section 212(h) waiver.
8 U.S.C. §§ 1101(a)(51)(A), 1182(h)(1)(C).
3
At oral argument, Garcia-Mendez raised, for the first time, the claim
that he was entitled to a section 212(h) waiver because he made out a
prima facie case for relief in his I-360 petition. As determined by USCIS,
however, Garcia-Mendez simply did not “qualify for” relief under 8
GARCIA-MENDEZ V. LYNCH 9
special rule applicants—who are not VAWA self-
petitioners—are nonetheless eligible for the waiver.4
B. Section 212(h) Waiver for Special Rule Cancellation
Applicants
In its unpublished decision deeming Garcia-Mendez
ineligible for section 212(h) relief, the BIA relied on its
published decision in Matter of Y-N-P-, 26 I. & N. Dec. 10(B.I.A. 2012). In Y-N-P-, the BIA concluded that an alien is
ineligible to seek a section 212(h) waiver in conjunction with
an application for special rule cancellation. 26 I. & N. Dec.
at 12–18. Because the BIA’s unpublished decision
dismissing Garcia-Mendez’s appeal was founded on Y-N-P-
(a precedential decision addressing precisely the same
question), we are bound to apply Chevron deference if the
disputed provisions of the INA are ambiguous. Negusie,
555 U.S. at 518; Uppal, 605 F.3d at 714. We conclude that
they are.
1. Ambiguity
The INA precludes an alien from seeking section 212(h)
relief unless the Attorney General “has consented to the
alien’s applying or reapplying for a visa, for admission to the
U.S.C. § 1154(a)(1)(A)(iii)(I). Nothing in the language of section 212(h)
supports the illogical conclusion that an alien is entitled to seek a waiver
of inadmissibility because he applied for and was denied VAWA self-
petitioner status.
4
This is not to say that any applicant for special rule cancellation is
categorically unqualified to be a VAWA self-petitioner, merely that the
two terms refer to different procedural avenues to immigration benefits
under the INA.
10 GARCIA-MENDEZ V. LYNCH
United States, or adjustment of status.” 8 U.S.C.
§ 1182(h)(2). If they are indeed entitled to seek the waiver,
special rule cancellation applicants must fit within one of
these criteria. As they are not seeking visas or admission5 to
the United States, a qualification, if at all, for section 212(h)
relief would arise only by way of “adjustment of status.” Id.Section 1229b(b), which contains the special rule
cancellation provisions, is titled: “Cancellation of removal
and adjustment of status for certain nonpermanent residents.”
8 U.S.C. § 1229b(b) (emphasis added). When a special rule
cancellation applicant is granted relief, the Attorney General
cancels the order of removal entered against the alien and
“adjust[s] [him] to the status of an alien lawfully admitted for
permanent residence.” Id. at § 1229b(b)(2)(A) (emphasis
added). This language might be read to suggest that the
Attorney General would have “consented to” the “adjustment
of status” of certain special rule cancellation applicants.
8 U.S.C. § 1182(h)(2). Another form of relief under the INA,
however, shares the name “adjustment of status.” Pursuant
to 8 U.S.C. § 1255, an alien with nonimmigrant status may
have his status adjusted to that of a lawful permanent resident
if he can satisfy certain criteria (“section 245 adjustment”).
Section 212(h) of the INA is unclear as to whether the
“adjustment of status” within the meaning of the section
refers to section 245 adjustment only or adjustment of status
resulting from special rule cancellation as well. We normally
5
Garcia-Mendez does not challenge the BIA’s conclusion, in Y-N-P-,
that a special rule cancellation applicant is not “applying . . . for
admission” within the meaning of section 212(h) simply because he
initially entered the United States without inspection. See 26 I. & N. Dec.
at 12–14 (discussing 8 U.S.C. § 1225(a)(1)).
GARCIA-MENDEZ V. LYNCH 11
presume that words “carry the same meaning when they
appear in different but related sections” of the same statutory
scheme. Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct.
1351, 1362 (2013). This rule, however, “creates only a
rebuttable presumption regarding the meaning of similar
language.” Sun v. Ashcroft, 370 F.3d 932, 939 (9th Cir.
2004).
In Y-N-P-, the BIA explained why, in its view,
“adjustment of status” does not carry a unitary meaning
throughout the INA. Section 245 adjustment of status, the
BIA reasoned, is a fundamentally different process than
“cancellation of removal and adjustment of status,” with
distinct procedures and eligibility requirements. 26 I. & N.
Dec. at 14–15. Under section 245, an alien “who was
inspected and admitted or paroled into the United States” may
apply to become a lawful permanent resident provided he is
“admissible” and also satisfies other criteria. 8 U.S.C.
§ 1255(a). Special rule cancellation, in contrast, permits an
alien in removal proceedings the opportunity to cancel
deportation and automatically become a lawful permanent
resident if he can prove, among other things, that he is “not
inadmissible” under specified INA provisions. 8 U.S.C.
§ 1229b(b)(2). Further observing that “cancellation of
removal and adjustment of status” is distinct from mere
“adjustment of status,” the BIA reasoned that Congress
intended section 212(h) waivers to be available only to
applicants for the latter species of relief. 26 I. & N. Dec. at
15–16.
The BIA’s analysis in Y-N-P- demonstrates the ambiguity
latent in section 212(h). FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132 (2000) (“The meaning—or
ambiguity—of certain words or phrases may only become
12 GARCIA-MENDEZ V. LYNCH
evident when placed in context.”). That provision does not
cross-reference other sections of the INA to identify certain
aliens eligible for relief—it merely states that the waiver
requires the Attorney General to have consented to the alien’s
“adjustment of status.” 8 U.S.C. § 1182(h)(2). The plain
language of the statute simply does not make clear whether
Congress intended the waiver to be available only to aliens
applying for section 245 adjustment, or whether Congress
also sought to allow aliens seeking special rule cancellation
to take advantage of the discretionary relief. Because either
interpretation would be reasonable, we conclude that the
statute is ambiguous. Alaska Wilderness League v. U.S.
E.P.A., 727 F.3d 934, 938 (9th Cir. 2013) (“A statute is
ambiguous if it is susceptible to more than one reasonable
interpretation.”).
2. Permissible Interpretation
Proceeding to step two of the Chevron framework, we
must determine whether the BIA’s construction was “a
reasonable policy choice for the agency to make.” Chevron,
467 U.S. at 845. This is a generous standard, requiring
deference “even if the agency’s reading differs from what the
court believes is the best statutory interpretation.” National
Cable & Telecommunications Ass’n v. Brand X Internet
Services, 545 U.S. 967, 980 (2005). Regardless of whether Y-
N-P- might reasonably have been decided differently, we
conclude that the BIA arrived at a permissible construction of
an ambiguous statutory scheme.
Garcia-Mendez’s argument to the contrary centers on the
BIA’s decision in Matter of Bustamante, 25 I. & N. Dec. 564(B.I.A. 2011). Although Bustamante predated Y-N-P- and did
not address the question presented here, Garcia-Mendez
GARCIA-MENDEZ V. LYNCH 13
contends that the reasoning of the former case undermines
that of the latter. In Bustamante, the BIA held that section
212(h) waivers are unavailable to applicants for standard
cancellation of removal (as distinct from special rule
cancellation). 25 I. & N. Dec. at 570. To be entitled to
standard cancellation of removal, an alien must demonstrate
(in relevant part) that he “has not been convicted” of certain
offenses. 8 U.S.C. § 1229b(b)(1)(C). Noting this language,
the BIA pointed out that section 212(h) refers to waiving
“inadmissibility,” not “convictions.” 25 I. & N. Dec. at 567.
Because section 212(h) does not operate to nullify
“convictions,” the BIA reasoned, it provides no relief to
applicants for standard cancellation of removal. Id. at
569–70.
In so holding, the BIA found it instructive that, in drafting
the special rule cancellation provision, “Congress chose to
use language relating to inadmissibility”—as opposed to the
“convictions” language found in the standard cancellation
provision. Id. at 568. The implication of the BIA’s
reasoning, according to Garcia-Mendez, is that Congress
intended to make the section 212(h) waiver of inadmissibility
available to special rule applicants—who must demonstrate
they are “not inadmissible”—but not to aliens seeking
standard cancellation, who must show they have “not been
convicted.”6 Compare 8 U.S.C. § 1229b(b)(1)(C) with id. at
(b)(2)(A)(iv).
6
In Y-N-P-, the BIA rejected this argument. 26 I. & N. Dec. at 17–18
(“[A]lthough we cannot explain the disparate language regarding the bars
to relief in [the standard cancellation provision] and the [special rule
cancellation provision], we find it unlikely that Congress would have
made such an effort to ensure that the domestic violence waiver was made
available to special rule cancellation applicants if other waivers of
inadmissibility and deportability were already implicitly available . . . .”).
14 GARCIA-MENDEZ V. LYNCH
The foregoing argument, whatever its persuasive force,
does not render the BIA’s interpretation impermissible. The
symmetry between special rule cancellation (which requires
applicants to demonstrate they are “not inadmissible”) and
section 212(h) (which expunges grounds of inadmissibility)
is not dispositive proof that the two provisions were intended
to work together. Nor does the ameliorative intent behind
VAWA, invoked again by Garcia-Mendez, change our
conclusion. Our inquiry is confined to whether the agency’s
interpretation was “arbitrary, capricious, or manifestly
contrary to the statute.” Wilderness Society, 353 F.3d at 1059(en banc) (quoting Chevron, 467 U.S. at 844) (internal
quotation marks omitted). Again, the INA is inconclusive as
to whether special rule applicants may apply for a section
212(h) waiver. The BIA’s resolution of that question in the
negative was a permissible interpretation of an ambiguous
statutory scheme. We therefore deny Garcia-Mendez’s
petition for review.
IV. CONCLUSION
We hold that an alien does not, by sole virtue of his status
as an applicant for special rule cancellation of removal, meet
the definition of a VAWA self-petitioner. We further hold
that an applicant for special rule cancellation does not, by
virtue of that status, become eligible to seek a section 212(h)
waiver. Applicants for special rule cancellation may not
circumvent the eligibility requirement set forth therein by
applying for a waiver of inadmissibility under section 212(h)
for which they are otherwise statutorily ineligible. The BIA
did not err in affirming the IJ’s denial of Garcia-Mendez’s
application.
PETITION FOR REVIEW DENIED.