Perez-Martin v. Ashcroft

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ARTEMIO PEREZ-MARTIN,  No. 03-70923

Petitioner,

v.  Agency No.

A92-958-263

JOHN ASHCROFT, Attorney General,

OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 8, 2004—Pasadena, California

Filed January 12, 2005

Before: Betty B. Fletcher, John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Betty B. Fletcher

437

440 PEREZ-MARTIN v. ASHCROFT

COUNSEL

Orit Levit, Korenberg, Abramowitz & Feldun, Sherman Oaks,

California, for the petitioner.

Elizabeth J. Stevens, U.S. Department of Justice, Washington

D.C., for the respondent. With her on the briefs was Lisa M.

Arnold.

OPINION

B. FLETCHER, Circuit Judge:

In this petition for review of his removal order, petitioner

Jose Artemio Perez-Martin (“Perez”) challenges the Legaliza-

tion Appeals Unit (“LAU”)’s denial of his 1988 application

for temporary resident status as a Special Agricultural Worker

(“SAW”). Perez claims both that the LAU erred substantively

in denying his application, and that the Immigration Judge

(“IJ”) and Board of Immigration Appeals (“BIA”) erred in

refusing to review the LAU’s decision as part of the removal

proceedings against Perez. This case raises important ques-

tions about our jurisdiction and about the operation of the stat-

ute governing SAW benefits, 8 U.S.C. § 1160. We hold that

we have jurisdiction to review the denial of SAW status, and

PEREZ-MARTIN v. ASHCROFT 441

that neither the IJ nor the BIA has such jurisdiction. On the

merits, we deny the petition for review.

I. BACKGROUND

Federal law confers temporary resident status on any alien

who qualifies as a “Special Agricultural Worker.” 8 U.S.C.

§ 1160(a)(1). To qualify for this designation, an alien must

establish that he or she resided in the United States and per-

formed at least 90 days of “seasonal agricultural services”

during the twelve-month period ending on May 1, 1986. Id.

§ 1160(a)(1)(B). An applicant for SAW adjustment of status

has the burden to prove qualifying employment by a prepon-

derance of the evidence, id. § 1160(b)(3)(B)(i), which may

include government records, employer or union records, or

“such other reliable documentation as the alien may provide,”

id. § 1160(b)(3)(A). Once the applicant has produced evi-

dence sufficient to show qualifying employment “as a matter

of just and reasonable inference,” the burden shifts to the gov-

ernment to “disprove” the applicant’s evidence “with a show-

ing which negates the reasonableness of the inference to be

drawn from the evidence.” Id. § 1160(b)(3)(B)(iii).

The statute sets out the exclusive procedures for adminis-

trative and judicial review of agency decisions determining

SAW status. Id. § 1160(e)(1). Within the agency, a denial of

SAW status is subject to a single level of administrative

review by an appellate authority that the Attorney General

establishes for this purpose. Id. § 1160(e)(2)(A). Judicial

review of the agency’s denial of SAW status is permissible

only in the context of the review of an order of removal. See

id. § 1160(e)(3)(A).1

In December 1988, Perez applied for temporary resident

status as a SAW. In his application, Perez claimed as qualify-

1

The judicial review provision is discussed in detail below in connection

with our analysis of our jurisdiction.

442 PEREZ-MARTIN v. ASHCROFT

ing employment 103 days of picking and weeding strawber-

ries for Juan Ramirez at the Santa Maria Berry Farms in Santa

Barbara, California. In support of his claim, Perez submitted

an affidavit from Ramirez claiming personal knowledge that

Perez worked 103 days picking and weeding strawberries for

Ramirez and his wife between May 1 and October 14, 1985.

Seven months later, in response to a grand jury subpoena,

Juan Ramirez signed a declaration casting substantial doubt

on Perez’s claim. In the declaration, Ramirez stated:

I have been advised that several apparently forged

documents have surfaced which purport to bear my

signature. I have not condoned the use of fraudulent

documents, nor have I lent my signature to docu-

ments for non-employees. For this reason, I hereby

specifically disavow and renounce any and all such

documents. I have given no one authority to sign on

my behalf and I know of no one who has reason to

sign for me. Any document which purports to bear

my signature in reference [to] any INS application

should therefore be regarded as null and void.

An INS agent then spoke to Raul Segura, the Office Man-

ager for Santa Maria Berry Farms. According to the INS

report recounting the interview, Segura said that during the

time Ramirez worked land owned by Santa Maria, Ramirez

employed no more than two to three individuals at any given

time, and those individuals “were continuously being replaced

by newly hired employees.”

In March 1991, the Service issued a Notice of Intent to

Deny Perez’s SAW application, on the basis of Ramirez’s

second affidavit and of the facts provided by Segura. In

response to the Notice, Perez submitted a letter on Santa

Maria Berry Farms letterhead from Juan Ramirez. Entitled

“To: Immigration and Naturalization Service / Re: Jose

Artsmio [sic] Perez Martin,” the letter states that Ramirez is

PEREZ-MARTIN v. ASHCROFT 443

a strawberry grower and that from 1985-88, the harvesting

season was approximately six months, Ramirez paid his

workers in cash, and no records were kept. The letter contains

no specific information regarding Perez, but it concludes: “I

understand that the purpose of this letter is to verify this indi-

vidual’s employment by me, in connection with an applica-

tion for an immigrant visa.” The Service, suggesting it did not

find the additional letter from Ramirez to be credible, denied

Perez’s SAW application.

Perez appealed the decision to the LAU, which dismissed

the appeal in October 1994. According to the LAU, the final

Ramirez letter did not “overcome the adverse evidence” sub-

mitted by the government because the letter failed to address

either the Segura statement or Ramirez’s own previous affida-

vit declaring that all employment documents bearing his name

should be considered “null and void.”

In July 1999, the INS charged Perez with removability

under Immigration and Nationality Act section 212(a)(6)

(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien present

in the United States without having been admitted or paroled.

At his hearing six months later, Perez conceded removability

but sought review before the Immigration Judge (“IJ”) of the

denial of his SAW application. After the issue was briefed,

the IJ concluded in June 2000 that the SAW statute foreclosed

review of a SAW application by the IJ. The IJ denied adjust-

ment of status and granted Perez voluntary departure, with an

alternate order of removal to Mexico. Perez appealed to the

BIA, which affirmed the IJ in a brief order.

Perez then petitioned this court for review.

II. JURISDICTION

Our authority to review the denial of Perez’s application for

SAW status is not immediately clear. Though the parties do

not discuss this issue beyond Perez’s bare assertion that judi-

444 PEREZ-MARTIN v. ASHCROFT

cial review of SAW applications has been preserved, we have

an independent obligation to inquire into our own jurisdiction.

See Mitchell v. Maurer, 293 U.S. 237, 244 (1934). The exis-

tence of jurisdiction is a question of law reviewed de novo.

Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003).

[1] The SAW statute provides: “There shall be judicial

review of such a denial [i.e., of SAW status] only in the judi-

cial review of an order of exclusion or deportation under sec-

tion 1105a of this title (as in effect before October 1, 1996).”

8 U.S.C. § 1160(e)(3)(A). The parenthetical was added to the

statute by section 308(g)(2)(B) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009-612 (“IIRIRA”), a law that also

repealed former 8 U.S.C. § 1105a, see IIRIRA § 306(b);

amended 8 U.S.C. § 1252 to govern judicial review of

removal orders, see IIRIRA § 306(a); and in general consoli-

dated the former categories of “deportation” and “exclusion”

under the single concept of “removal.”

[2] Post-IIRIRA, this court has jurisdiction to review the

BIA’s final order of removal under 8 U.S.C. § 1252(a)(1).

The jurisdictional question we face today is whether the SAW

statute’s provision for judicial review, 8 U.S.C.

§ 1160(e)(3)(A), still applies when judicial review is premised

on 8 U.S.C. § 1252 rather than the section specified in the

SAW statute, the now-defunct 8 U.S.C. § 1105a.

[3] Though it appears no federal court has addressed this

question, the Fourth Circuit has interpreted language nearly

identical to that of 8 U.S.C. § 1160(e)(3)(A) as preserving

judicial review of legalization decisions in post-IIRIRA judi-

cial review of removal orders. Specifically, in Orquera v.

Ashcroft, 357 F.3d 413 (4th Cir. 2003), the Fourth Circuit

considered whether its review of a removal order could

include a review of a denial of amnesty under 8 U.S.C.

§ 1255a. Regarding judicial review, the statute at issue in that

case provided: “There shall be judicial review of such denial

PEREZ-MARTIN v. ASHCROFT 445

only in the judicial review of an order of deportation under

section 1105a of this title (as in effect before October 1,

1996).” Id. at 418 (quoting 8 U.S.C. § 1255a(f)(4)(A)) (inter-

nal quotation marks and emphasis omitted).2 As in the parallel

provision of the SAW statute, the parenthetical was added by

IIRIRA. Id. The court found that this addition was susceptible

to two constructions in light of IIRIRA’s abolition of 8 U.S.C.

§ 1105a: either the parenthetical functioned to “freeze in place

the previously existing scope of judicial review,” regardless

of the section under which an appellate court exercised juris-

diction, or the parenthetical indicated that judicial review of

a denial of legalization was to be available only in the context

of judicial review arising “under” § 1105a itself. Id. at 418-19.3

Finding that the latter interpretation would render the paren-

thetical surplusage, would conflict with a related statute, and

would contravene the “well-settled presumption favoring

interpretations of statutes that allow judicial review of admin-

istrative action,” id. at 422 (quoting McNary v. Haitian Refu-

gee Center, Inc., 498 U.S. 479, 496 (1991)) (internal

quotation marks omitted), the court held that courts of appeals

retain jurisdiction to review legalization decisions in the con-

text of removal orders under 8 U.S.C. § 1252. Id. at 420-23.

[4] Though not all of Orquera’s reasoning applies to the

SAW statute, interpreting IIRIRA to have implicitly abolished

all judicial review of the denial of SAW application would

clearly flout the presumption in favor of judicial review. Fol-

lowing the Supreme Court, we “presum[e] that Congress leg-

islates with knowledge of our basic rules of statutory

construction,” including “our well-settled presumption favor-

2

The only difference between this language and the comparable lan-

guage from the SAW statute is that the latter makes SAW denials review-

able within judicial review of orders of exclusion as well as within review

of orders of deportation.

3

Despite the repeal of 8 U.S.C. § 1105a, review under that section still

occurs in certain cases, pursuant to the IIRIRA’s transitional rules. See

IIRIRA § 309(c); Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir. 1997).

446 PEREZ-MARTIN v. ASHCROFT

ing interpretations of statutes that allow judicial review of

administrative action.” McNary, 498 U.S. at 496; see also INS

v. St. Cyr, 533 U.S. 289, 298 (2001) (invoking the “strong

presumption” favoring judicial review of administrative

action (emphasis added)). In light of this presumption and the

lack of “clear and convincing evidence” of congressional

intent to preclude judicial review of denials of SAW appli-

cants, Reno v. Catholic Social Services, Inc., 509 U.S. 43, 64

(1993), we find it “most unlikely that Congress intended to

foreclose all forms of meaningful judicial review.” McNary,

498 U.S. at 496. Accordingly, we interpret the SAW statute

in conformity with our sister circuit’s interpretation of nearly

identical language in a similar statute, and we hold that

IIRIRA preserved federal court jurisdiction to review a denial

of SAW status within judicial review of an order of removal,

regardless of the jurisdictional provision under which such

review is carried out.

III. ANALYSIS

A. The BIA’s Jurisdiction To Review the Denial of SAW

Status

Perez claims first that the denial of his SAW application

should have been reviewed as part of his administrative

removal proceedings before the IJ and BIA. An administrative

agency’s interpretation of its statutory authority is reviewed

de novo. Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071,

1073 (9th Cir. 2003). We reject Perez’s claim.

[5] The SAW statute provides two levels of review for

denials of SAW legalization — one administrative (before an

adjudicative body established for this purpose) and one judi-

cial (in the federal appellate courts as part of judicial review

of a removal order). 8 U.S.C. §§ 1160(e)(2)-(3). The statute

expressly stipulates that these avenues for review are exclu-

sive. 8 U.S.C. § 1160(e)(1). When the statute’s provision for

a single level of administrative review is read together with its

PEREZ-MARTIN v. ASHCROFT 447

exclusivity provision, the plain language of the SAW statute

forecloses BIA jurisdiction to review the denial of an applica-

tion for SAW status.

Perez cites several provisions of the United States Code

and Federal Rules of Appellate Procedure in support of a cre-

ative argument that the judicial review of a denial of SAW

status cannot occur unless the denial has first been reviewed

by the BIA as part of the removal proceedings. This argument

fails. Only one of the provisions Perez cites offers any support

for his theory: Subject to an exception not relevant to the

instant case, “the court of appeals shall decide the petition [for

review of a removal order] only on the administrative record

on which the order of removal is based.” 8 U.S.C.

§ 1252(b)(4)(A) (emphasis added). On its face, this provision

suggests that the scope of a court’s review of a removal order

is limited to the record of the removal proceedings, and there-

fore that the record of a SAW proceeding cannot be consid-

ered unless it is incorporated into the record of the removal

proceeding. However, “[i]t is a well-settled canon of statutory

interpretation that specific provisions prevail over general

provisions.” NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410,

1415 (9th Cir. 1994). Congress made absolutely clear in the

SAW statute that it specifically intended denials of SAW

applications to be reviewable judicially as part of a review of

a removal order, and to be reviewable administratively only

by the administrative body established for this purpose. 8

U.S.C. § 1160(e). The general provision Perez cites cannot

overcome Congress’s specific directive in the SAW context.

[6] We therefore hold, in accordance with the plain lan-

guage of the SAW statute, that the BIA lacks jurisdiction to

review the denial of an application for SAW status.

B. The LAU’s Denial of Perez’s SAW Application

[7] Determinations contained in a denial of SAW status

“shall be conclusive unless the applicant can establish abuse

448 PEREZ-MARTIN v. ASHCROFT

of discretion or that the findings are directly contrary to clear

and convincing facts contained in the record considered as a

whole.” 8 U.S.C. § 1160(e)(3)(B).

With respect to proof on an applicant’s eligibility, the SAW

statute provides:

An alien can meet [his or her] burden of proof if the

alien establishes that the alien has in fact performed

[the requisite employment] by producing sufficient

evidence to show the extent of that employment as

a matter of just and reasonable inference. In such a

case, the burden then shifts to the Attorney General

to disprove the alien’s evidence with a showing

which negates the reasonableness of the inference to

be drawn from the evidence.

8 U.S.C. § 1160(b)(3)(B)(iii).

[8] Once Perez came forward with the original Ramirez

affidavit verifying that he had worked the requisite number of

days of qualifying employment, Perez had clearly “produc[ed]

sufficient evidence to show the extent of [his] employment as

a matter of just and reasonable inference.” At that point, the

burden shifted to the government to “negate[ ] the reasonable-

ness of the inference to be drawn from the evidence.”

1. The government’s evidence

The first question is whether the government discharged its

burden. In his second affidavit, Ramirez stated that “[a]ny

document which purports to bear my signature in reference

[to] any INS application should . . . be regarded as null and

void.” The statement of Santa Maria’s Office Manager,

Segura, also casts doubt on Perez’s claim by implying that no

one worked for Ramirez for very long.

PEREZ-MARTIN v. ASHCROFT 449

Perez is correct that the Segura statement is not specific

enough to carry the government’s burden of disproving the

evidence in Perez’s original application. The fact that

Ramirez employed few workers does not foreclose the possi-

bility that Perez was one of them. Nor does Segura’s observa-

tion about frequent turnover prove anything: Segura did not

state specifically that no one worked for Ramirez for at least

90 days during the year in question, only that Ramirez’s

workers “were continuously being replaced by newly hired

employees.” There is no indication as to what Segura meant

by “continuously” — if indeed Segura himself used this word

at all.4 Even if the word “continuously” is attributable to

Segura, the statement is simply not specific enough to refute

Perez’s initial claim to employment.

[9] The second Ramirez affidavit, however, is quite damag-

ing to Perez’s application. Though Perez is correct in observ-

ing that part of Ramirez’s statement can be taken to suggest

by negative implication that he signed some valid documents

for individuals he actually employed — Ramirez said, “I have

not condoned the use of fraudulent documents, nor have I lent

my signature to documents for non-employees” (emphasis

added) — Ramirez’s ultimate disavowal of SAW affidavits in

his name is broad and unequivocal: “Any document which

purports to bear my signature in reference [to] any INS appli-

cation should therefore be regarded as null and void” (empha-

sis added). This statement under oath satisfies the

government’s burden to “negate[ ] the reasonableness of the

inference to be drawn from the [applicant’s] evidence.” 8

U.S.C. § 1160(b)(3)(B)(iii).

2. Perez’s rebuttal evidence

As an initial matter, we consider the nature of the burden

an applicant must carry once the government has produced

4

The quoted language comes from an INS document summarizing the

Segura interview, not from Segura himself.

450 PEREZ-MARTIN v. ASHCROFT

evidence to refute the applicant’s initial showing. There are

two possibilities: either the applicant must reestablish the

predicate facts of the initial application, or the applicant must

simply negate the inference of the government’s showing, so

that the evidence viewed as a whole is sufficient to support

the applicant’s claim “as a matter of just and reasonable infer-

ence.” 8 U.S.C. § 1160(b)(3)(B)(iii). Though the statute does

not specify what an applicant must show in order to rebut

derogatory evidence submitted by the government, the statu-

tory scheme appears to support the latter of the two possibili-

ties we have identified. Where an applicant’s responsive

evidence rebuts the government’s attempt to “negate[ ] the

reasonableness of the inference to be drawn from the [appli-

cant’s initial] evidence,” the applicant has restored a state of

the evidence in which qualifying employment is shown by a

preponderance of the evidence “as a matter of just and reason-

able inference.” Id. This showing is all that is required to sus-

tain the applicant’s initial burden, so it would frustrate the

statute’s basic design, as well as the statute’s purpose of

establishing a “broad amnesty program[ ] to allow existing

undocumented aliens to emerge from the shadows,” McNary,

498 U.S. at 482-83, to require a higher showing by the appli-

cant in rebuttal. Moreover, it would seem inefficient and

unnecessary to force an applicant for SAW status to reestab-

lish facts already submitted to the administrative adjudicator.

Therefore we conclude that, in order to overcome derogatory

evidence put forth by the government, an applicant need not

reestablish the predicate facts of his claim; instead, the appli-

cant is required to provide only enough evidence so that the

evidence before the adjudicator, viewed as a whole, is “suffi-

cient . . . to show [qualifying] employment as a matter of just

and reasonable inference.” 8 U.S.C. § 1160(b)(3)(B)(iii).

The final question is whether the LAU abused its discretion

in finding that the Ramirez letter did not meet Perez’s burden

to rebut the government’s showing. Ordinarily, a supporting

letter from an applicant’s employer would easily suffice to

rehabilitate an applicant’s claim to SAW status in the face of

PEREZ-MARTIN v. ASHCROFT 451

derogatory evidence. The employer is the person in the best

position to verify the claims of the applicant, who may have

difficulty finding other corroboration given the transient

nature of the work. Unless there are specific indicia that an

employer’s letter or other communication is unreliable,

refusal to accept corroboration by the applicant’s employer

would usually be an abuse of discretion.

[10] On the facts of this case, however, we cannot say that

the LAU abused its discretion in refusing to credit the pur-

ported letter from Perez’s employer. The Ramirez letter is

highly suspect. First, the text of the letter is unnaturally gen-

eral, containing no indication beyond the heading that the let-

ter actually relates to Perez himself. The entire body of the

letter discusses facts about Ramirez, not Perez. Second, the

letter never spells out, or even suggests, that Perez worked for

Ramirez. Instead, the letter merely concludes with the cryptic

statement, “I understand that the purpose of this letter is to

verify this individual’s employment by me, in connection

with an application for an immigrant visa.” Finally, as the

LAU observed, the letter did not explain or mention in any

way Ramirez’s previous affidavit that any employment docu-

ments bearing his name should be regarded as “null and

void.” It is not unreasonable to surmise that an individual who

has disavowed all employment verification forms bearing his

name would, when writing a letter intended to corroborate a

claim on a form among those he disavowed, at least make

some mention of the tension among the various assertions

made in his name. Considering all of these factors together,

we conclude that the LAU did not abuse its discretion in sus-

pecting the credibility of the letter and finding that it did not

overcome the adverse evidence submitted by the government.5

5

The LAU also seems to have faulted the letter for failing to address the

statements of Segura the Office Manager. Had this been the only basis for

discounting the value of the letter, we would find an abuse of discretion,

as there is no reason to have expected Ramirez to address a statement that

is not actually inconsistent with Perez’s employment claim, or even to

assume that Ramirez was aware of the Segura statement at all. However,

the LAU’s faulty reliance on the Segura statement does not undermine its

conclusion, as there was ample reason not to credit the Ramirez letter.

452 PEREZ-MARTIN v. ASHCROFT

IV. CONCLUSION

We hold that IIRIRA preserved federal court jurisdiction to

review a denial of SAW status within judicial review of an

order of removal, regardless of the jurisdictional provision

under which such review is carried out. Under 8 U.S.C.

§ 1160(e), the IJ and BIA are foreclosed from reviewing a

denial of SAW status. On the merits, we conclude that the

LAU did not abuse its discretion in denying Perez’s SAW

application.

PETITION DENIED.