SORIANO-VINO v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOURDES SORIANO-VINO, 

Petitioner, No. 06-73345

v.

 Agency No.

A092-732-826

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 3, 2010—Pasadena, California

Filed August 10, 2011

Before: Alfred T. Goodwin and Johnnie B. Rawlinson,

Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Rawlinson;

Concurrence by Judge Zouhary

*The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.

10543

SORIANO-VINO v. HOLDER 10545

COUNSEL

Nancy E. Miller, Esq., Pasadena, California, for defendant-

appellant Lourdes Soriano-Vino.

Christina B. Parascandola, Assistant United States Attorney,

Washington, DC, for plaintiff-appellee Eric H. Holder Jr.,

Attorney General.

OPINION

RAWLINSON, Circuit Judge :

This case requires us to interpret and apply the confidenti-

ality provision of the statute governing the Special Agricul-

tural Workers program (SAW). See 8 U.S.C. § 1160. Because

we conclude that the confidentiality provisions were not con-

travened during the inspection at issue in this case, we deny

the petition for review.

I. BACKGROUND

This case originated at an inspection checkpoint in the Los

Angeles International Airport (LAX). Appellant Lourdes

10546 SORIANO-VINO v. HOLDER

Vino-Soriano (Soriano) was returning from the Philippines

when she was asked by an Immigration and Naturalization

Service (INS) inspector where she worked and for whom she

worked. After Soriano answered the questions, the inspector

asked her to remain in the waiting area. After two to three

hours, two other inspectors entered and interrogated Soriano

for five to six hours.

Soriano stated that she was told by the inspectors that her

green card was fake and that she could be deported immedi-

ately. She was also told that the inspectors were checking her

record. Soriano remembered being informed that she was not

entitled to an attorney and recalled being denied her request

to make a telephone call or use the bathroom. Soriano did not

feel she could leave the room.

In the course of the interview, Soriano signed a sworn

statement reflecting her responses to the questions, including

her admission that she committed fraud to obtain her status

under the SAW program. One question of particular interest

to the inspectors was whether Soriano had worked on the farm

listed as her place of employment when she obtained admis-

sion under the SAW program. Soriano verbally denied work-

ing on the farm and repeated the denial in her sworn

statement. According to Soriano, she had no choice but to

sign the sworn statement, because the INS officers threatened

to send her back to the Philippines. Soriano later contended

that not all of the information in the sworn statement was true.

Specifically, Soriano asserted that her statement about not

working on the farm was false.

When questioned about the inconsistencies concerning the

dates of her employment on the farm, Soriano replied that she

was tired from the long flight, she was hungry, and she felt

imprisoned. Soriano also explained that she did not review the

statement; the officer just told her to sign it.

During cross-examination, Soriano remarked that she

believed the inspectors were checking her immigration file

SORIANO-VINO v. HOLDER 10547

because they questioned the validity of her green card and

looked at the back of her green card. However, no concrete

evidence was offered to confirm Soriano’s belief.

Inspector Dibene (Dibene), one of the inspectors who ques-

tioned Soriano, testified she would accommodate a person

who needed a break for water or to use the restroom. Dibene

denied using threats or insults during her investigations.

Dibene identified the sworn statement taken from Soriano.

Dibene described typing Soriano’s answers verbatim. In the

process, Dibene noted that several answers given by Soriano

did not sound credible. Specifically, the S-26 code on Sori-

ano’s green card identified her as a person who obtained

admission through the agriculture amnesty program. That

information seemed “peculiar” in view of Soriano’s other

statements regarding her prior work experience. In Dibene’s

experience, an agricultural worker could routinely name the

supervisor and the owner of the farm where she worked. In

addition, the work schedule Soriano described was more suit-

able to employment in a business, rather than on a farm.

Dibene testified that it was her customary procedure to

have an interviewee review the sworn statement for errors. If

there were any errors, she would have the subject correct the

errors on the statement in pen and initial the corrections.

Dibene testified she would have the subject review page by

page, rather than giving the completed document to the sub-

ject for signature.

During cross-examination, Dibene testified that she was

familiar with A files. Dibene did not believe that the SAW

program applications were co-mingled with other documents

in the A file because the SAW application information was

protected from disclosure. Dibene also explained that A file

documents were maintained separately, and that an inspector

would not possess an A file. Finally, Dibene explicitly denied

assessing Soriano’s A file.

10548 SORIANO-VINO v. HOLDER

The IJ did not credit Soriano’s testimony that she was

coerced into signing the statement or that she gave any false

statements during the interview. The IJ also concluded that

the information provided during the interview came from

Soriano, and not from her SAW application. In turn, Soriano’s

responses to the questions from the investigators established

that she was not a bona fide agricultural worker and did not

qualify for admission under the SAW program.

The IJ ultimately ruled that due to fraud in obtaining her

admission, Soriano was not a Legal Permanent Resident

(LPR) and, therefore, was not eligible for cancellation of

removal. Accordingly, the IJ pretermitted Soriano’s applica-

tion for cancellation of removal and ordered her removed.

Soriano appealed the IJ’s decision to the Board of Immigra-

tion Appeals (BIA) and the BIA affirmed the IJ’s decision.

Soriano subsequently filed a petition for review to this court,

but it was dismissed as untimely. However, the BIA reissued

its decision after Soriano filed a motion to re-open due to

ineffective assistance of counsel, allowing Soriano to pursue

this petition for review.

II. STANDARD OF REVIEW

“When the BIA conducts its own review of the evidence

and law rather than adopting the IJ’s decision, our review is

limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d

1034, 1039 (9th Cir. 2010) (citation and internal quotations

omitted). We review questions of law de novo. See Rivera v.

Mukasey, 508 F.3d 1271, 1274-75 (9th Cir. 2007).

Whether the confidentiality provisions of § 1160 were vio-

lated constitutes a question of statutory interpretation, which

is reviewed de novo. See Infuturia Global Ltd. v. Sequus

Pharmaceuticals, Inc., 631 F.3d 1133, 1137 (9th Cir. 2011).

Where the BIA, in an unpublished decision, interprets an

ambiguous immigration statute, we give Skidmore deference

SORIANO-VINO v. HOLDER 10549

to the BIA’s interpretation. See Vasquez De Alcantar v.

Holder, No. 08-71427, ___ F.3d ___, 2011 WL 2163965 at *2

(9th Cir. June 3, 2011); see also Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944) (describing deference to non-controlling

agency rulings as dependent on the power of those rulings to

persuade).

III. DISCUSSION

Soriano contends that the INS inspectors violated the confi-

dentiality provisions of the SAW program. See 8 U.S.C.

§ 1160(b)(6) (2001). This program provided amnesty for a

large number of the undocumented alien population of agri-

cultural workers by authorizing applications for legalization

in accordance with the criteria set forth in § 1160. See Velez

v. Coler, 978 F.2d 647, 648 & n.1 (11th Cir. 1992). One of

the principal requirements was that the applicant demonstrate

performance of agricultural services as an employee. See Wint

v. Yeutter, 902 F.2d 76, 78 (D.C. Cir. 1990) (citing 8 U.S.C.

§ 1160 (a)(1)). This requirement underscores the significance

of Soriano’s denial of working on a farm. By denying having

engaged in agricultural employment, Soriano called into ques-

tion her eligibility for admission under the SAW program.

[1] A prominent feature of the SAW program is the confi-

dentiality provision that prohibits use of information disclosed

by a SAW applicant in the course of the application process.

See 8 U.S.C. § 1160(b)(6)(A)(i). Upon realizing the signifi-

cance of her statement that she had never worked on a farm,

Soriano segued to her contention that the information elicited

from her by the INS inspectors was confidential under the

provisions of § 1160.

The BIA upheld the IJ’s determination that the confidenti-

ality provisions of § 1160 were not violated. The BIA ruled

that “[a]ny notation on the respondent’s permanent residency

card [ ] which indicated that the respondent obtained her resi-

10550 SORIANO-VINO v. HOLDER

dency via the SAW program is not part of her confidential

temporary residence application.”

This issue appears to be one of first impression for us.

However, the Tenth and Eleventh Circuits, as well as the

United States District Court for the Southern District of Cali-

fornia have previously applied the confidentiality provisions

of § 1160. During a criminal proceeding involving the illegal

acquisition of a firearm, a SAW applicant in the Tenth Circuit

appealed the decision of the district court allowing his appli-

cation to be used to establish that he was an illegal alien. See

United States v. Hernandez, 913 F.2d 1506, 1508 (10th Cir.

1990). The Tenth Circuit determined that the application was

admissible as evidence at trial because the reach of the confi-

dentiality provision did not extend so far as to protect against

disclosure in a criminal proceeding. The Tenth Circuit rea-

soned that a more “narrow reading” of the confidentiality

requirement would allow disclosure of application informa-

tion “in the course of verifying it” and “in the course of prose-

cuting an applicant for providing false information . . .” Id. at

1511 (citations omitted).

Similarly, in a case from the Eleventh Circuit, petitioners

attempted to limit access to SAW files during a court proceed-

ing. See In re Nelson, 873 F.2d 1396, 1397 (11th Cir. 1989).

The Eleventh Circuit opined that it was not Congress’s intent

“to prohibit disclosure of SAW application files in judicial

proceedings.” Id. (citations omitted). The Eleventh Circuit

explained that if Congress intended to place such a limitation

on the files, it would have expressly done so. See id.

In Lopez v. Ezell, 716 F.Supp. 443, 444 (S.D. Cal. 1989),

the plaintiffs filed a motion for a preliminary injunction to

enjoin border patrol agents and non-legalizing INS officers

from, inter alia, questioning applicants concerning fraud with

respect to their applications. The district court turned to the

plain language of the statute and interpreted it “in a logical

fashion” to limit the confidentiality provision to the “applica-

SORIANO-VINO v. HOLDER 10551

tion and any information taken from the application. . .” Id.

at 445. The district court determined that “[o]n its face, the

language of section 1160(b)(6) does not extend to the infor-

mation not obtained directly from the application itself . . .”

Id. (emphasis added). Recognizing that the language of the

statute could be deemed ambiguous, the district court also

examined legislative history to ascertain the intent of the

drafters. See id. The district court discerned from the legisla-

tive history that Congress’s primary intent was to protect the

application and the information contained on the application

from unauthorized disclosure to other government entities.

See id. (citing P.L. 99-603, reprinted in 1986 U.S. Code

Cong. & Admin. News, 5649, 5677). However, the district

court observed that Congress was also concerned about fraud

in the application process. See id. (referencing

§ 1160(b)(6)(A)’s exemption for “the purpose of enforcing

the penalty for fraud”). Having considered the plain language

of the statute and the legislative history, the district court held

that the confidentiality provision was not to be construed so

broadly “as to completely immunize the underlying facts con-

tained in the application from any independent inquiry.” Id. at

447.

Although we agree with the principle espoused in Her-

nandez and In re Nelson that the confidentiality provision in

the SAW legislation is not limitless, those cases do not pro-

vide direct guidance on the issue we decide. Those cases both

involved court proceedings. See Hernandez, 913 F.2d at 1508;

see also In Re Nelson, 873 F.2d at 1397. Accordingly, it could

be argued that the compelling nature of court proceedings is

sufficiently distinct that an exception may be made for those

proceedings that would not apply in an inspection interview.

See Carmichael v. Delaney, 170 F.2d 239, 244-45 (9th Cir.

1948) (noting the importance of judicial proceedings) .

We are more persuaded by the analysis of the district court

in Lopez because Lopez involved facts that are more analo-

gous to the facts of this case, i.e., seeking to prohibit inspec-

10552 SORIANO-VINO v. HOLDER

tors from inquiring about fraud in the underlying SAW

application. See Lopez, 716 F.Supp. at 444. As noted by the

district court in Lopez, 8 U.S.C. § 1160(b)(6) provided in per-

tinent part:

Nothing in this paragraph shall be construed to limit

the use, or release, for immigration enforcement pur-

poses or law enforcement purposes of information

contained in files or records of the Service pertaining

to an application filed under this section, other than

information furnished by an applicant pursuant to the

application, or any other information derived from

the application, that is not available from any other

source.

[2] We agree that Congress was as concerned with fraud in

the application process as it was with shielding applicants

from unauthorized disclosure of the SAW application con-

tents. See Lopez, 716 F. Supp. at 446 (referencing the statu-

tory provision exempting from the confidentiality provision

information used to enforce the fraud penalty). Adoption of

Soriano’s approach would prevent any investigation of fraud

that referenced any information contained in the SAW appli-

cation, even if the information was not obtained from the

application. We are not inclined to adopt an interpretation that

patently thwarts Congress’s expressed intent. See Padash v.

I.N.S., 358 F.3d 1161, 1168 (9th Cir. 2004) (noting that fed-

eral statutes should be interpreted in conformity with the

intent of Congress).

[3] We also agree that the plain language of the statute

counsels against a broad interpretation of the confidentiality

provision. By its plain terms, the confidentiality provision

applies expressly and exclusively to the application itself. See

8 U.S.C. § 1160(b)(6)(A). Applying the confidentiality provi-

sion to information that was not obtained from the application

would violate a cardinal principle of statutory interpretation—

that a statute be analyzed and applied in accordance with its

SORIANO-VINO v. HOLDER 10553

plain language. See Infuturia Global, 631 F.3d at 1137. In

sum, we hold that an examination of the plain language of the

statue and the statutory intent as expressed in the statute leads

us to conclude that there is no violation of the SAW confiden-

tiality provisions when the challenged information is obtained

as the result of questioning at an inspection checkpoint rather

than from the application itself.

The BIA’s ruling is consistent with our conclusion. In its

decision, the Board specifically found that the information the

agents obtained from the notation on Soriano-Vino’s perma-

nent residency card was not part of her application. We give

Skidmore deference to the agency’s ruling because the analy-

sis employed was fact-based, fairly thorough, and rooted in

reliance on published BIA precedent. See Skidmore, 323 U.S.

at 140 (discussing factors).

[4] Finally, we note that the outcome of this case is not

dictated by the Board’s decision in In Re Masri, I. & N. Dec.

1145 (BIA 1999). In Masri, it was undisputed that the INS

procured evidence directly from the applicant’s SAW applica-

tion. See id. at 1146. Because the evidence used by the agency

fell within the express prohibition of the statute’s confidenti-

ality provision, the Board held that the “clear and unequivo-

cal” language of the statute prohibited use of information

from the SAW application. Id. at 1150. In deciding Soriano-

Vino’s appeal, the BIA explicitly distinguished the circum-

stances that existed in Masri. Unlike the situation in Masri, it

is undisputed that the inspectors who questioned Soriano did

not have access to Soriano’s SAW application. Rather, infor-

mation was garnered from the statements provided by Sori-

ano. Because the agents did not access Soriano’s SAW

application, there was no violation of the SAW confidentiality

provision, and the BIA’s decision so holding was correct.

PETITION DENIED.

10554 SORIANO-VINO v. HOLDER

ZOUHARY, District Judge:

I concur in the result. The confidentiality provision was not

violated here because immigration officers obtained the chal-

lenged information from Soriano, not her SAW application.