Wednesday, November 8, 2017
Illegal Entry Into U.S. Doesn’t Bar Deportation Relief
Reinhardt Says Requisites for Cancellation of Removal Do Not Include Crossing Border Lawfully; Wardlaw Concurs, Kozinski Says View Is ‘Rubbish,’ ‘Illogical,’ ‘Nonsense’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a man convicted of drug offenses who is facing the prospect of deportation is eligible to apply for “cancellation of removal” notwithstanding that his entry into the United States was unlawful—a decision based on reasoning that the dissenter termed “rubbish.”
Judge Stephen Reinhardt wrote the majority opinion, joined in by Judge Kim Wardlaw. Judge Alex Kozinski dissented.
At issue was the meaning of 8 U.S.C. §1229b(a)(2), which sets forth criteria for cancellation of removal. Aside from lawful permanent residency for five years and not having been convicted of an “aggravated felony,” it requires seven years of continuous residence in the United States “after having been admitted in any status.”
Reinhardt observed that when the petitioner was “waved through” at the border, he was “admitted.”
“The government’s argument that ‘in any status’ means ‘in any lawful status’ is facially incorrect,” Reinhardt insisted.
Came by Car
The petitioner, Abraham Villalba Saldivar, had entered the United States from Mexico in 1993. As explained by his attorney, Patrick Valdez, at oral argument Aug. 2, 2016, Saldivar was then 10 years old, and was a passenger in a car driven by a person believed to have been a relative who lawfully crossed the border.
The boy, however, did not enter lawfully, he conceded.
In 2006, he gained the status of lawful permanent resident. Six years later, he suffered his convictions in state court for possession of methamphetamine and possession of paraphernalia used for smoking a controlled substance.
An immigration judge ruled that when the car was “waved through the border” in 1993, the boy did not gain “any status” because “mistaken admissions do not confer a status, either permanent or otherwise.”
The Board of Immigration Appeals affirmed, saying that being waved through “is not tantamount to admission ‘in any status’ either immigrant or nonimmigrant.”
Explaining the reversal, Reinhardt wrote:
“Because Saldivar was undisputedly ‘admitted’ in 1993, we must decide whether that admission was ‘in any status.’ We conclude that it was.”
Pointing to a 2015 decision in Tula Rubio v. Lynch, he said:
“Only the Fifth Circuit has previously considered the precise issue before us, and that court held unequivocally that the statute is unambiguous. We agree with our fellow circuit and its reasoning.”
The court there said:
“We…find it clear that the plain meaning of the phrase ‘any status’ broadly encompasses all states or conditions, of whatever kind, that an alien may possess under the immigration laws.”
Because the phrase is unambiguous, Reinhardt declared, the court is not bound the dictate of the United States Supreme Court’s 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc. that the Board of Immigration Appeal’s construction of terms in the Immigration and Naturalization Act be honored.
Kozinski noted that in 2002, the Board of Immigration Appeals held that reference to the “status” of a person relates to “a certain legal standing, e.g., classification as an immigrant or nonimmigrant.” That, he insisted, is “the only sensible way to read” the statute.
“When an actor says ‘wish me luck’ before an audition, he’s not asking his friend to wish him both good and bad luck. Or when the best man at a wedding toasts the newlyweds’ health, he’s not wishing them both good and ill health. Context makes clear that those terms denote only something positive.”
Similarly, he said, “any status” necessarily refers “to one of several specific lawful categories,” reasoning:
“Otherwise, why mention status at all? If Congress intended to grant eligibility for cancellation of removal to people who deceive the border authorities into admitting them, it would have put a period after ‘admitted’ in section 1229b(a)(2) and omitted any reference to status.”
His reference to “rubbish” came after he recited the argument by Reinhardt and by the Fifth Circuit that it is meaningful that Congress did not specify “lawful” status. He insisted that interpreting “any status” to mean legal status “ is not merely a plausible meaning, it is the only plausible meaning.”
Kozinski remarked that Reinhardt’s assertion that the Board of Immigration Appeal’s interpretation “isn’t entitled to Chevron deference…doesn’t pass the snicker test.”
“[T]he majority’s interpretation is profoundly illogical. My colleagues seem to believe that Congress made an immigration benefit available to someone who fools the immigration authorities at a border checkpoint, but not someone who scales a border fence or tunnels under a wall. It’s nonsense to think that Congress would treat aliens who deceive the immigration authorities better than those who sneak in hidden in a cargo van. What purpose would such a distinction serve? This ruling also creates perverse incentives: Potential deportees will claim, like Saldivar, that they were waved in by a guard regardless of how they actually entered. Obviously, there would be no record contradicting them, so the incentive to lie would be powerful and the chance of getting caught nil.
“My colleagues misread the INA, trample our precedent and turn their backs on Chevron, all to create a giant loophole that will enable thousands to lie their way to relief that Congress never intended them to have. The Fifth Circuit got it wrong and the Ninth now follows them down the rabbit hole. It’s time for another opinion.”
The case is Saldivar v. Sessions, No. 13-72643.
Public records show that on March 29, an Abraham Saldivar, whose age matches that of the petitioner in the Ninth Circuit case, was sentenced to two years in prison for possession or ownership of a firearm by a felon or addict.
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