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.