Moreno-Mornate v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MACARIO MORENO-MORANTE, 

Petitioner, No. 05-75376

v.

 Agency No.

A97-476-013

ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 18, 2007—San Francisco, California

Filed June 21, 2007

Before: Betty B. Fletcher, Eugene E. Siler, Jr.,* and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.

7497

7500 MORENO-MORANTE v. GONZALES

COUNSEL

Cesar Luna, Luna & Associates, San Diego, California, for

the petitioner.

Bryan Beier (argued) and Luis E. Perez (briefed), Department

of Justice, Office of Immigration Litigation, Washington,

D.C., for the respondent.

OPINION

HAWKINS, Circuit Judge:

We address a question of first impression: does a United

States citizen grandchild, in the lawful custody of non-citizen

grandparents, meet the statutory definition of “qualifying rela-

tive” for the purpose of cancellation of removal? Grandparent

Macario Moreno-Morante (“Moreno”) seeks review of the

Board of Immigration Appeals’s (“BIA”) adoption and affir-

mance of an Immigration Judge’s (“IJ”) denial of his applica-

tion for cancellation of removal, concluding that Moreno

lacked qualifying relatives for purposes of the hardship deter-

mination and rejecting the contention that Moreno’s U.S. citi-

zen grandchildren should qualify in light of his legal

guardianship, custody, and pending adoption of them. We

have jurisdiction under 8 U.S.C. § 1252 and deny Moreno’s

petition.1

1

The government contends Moreno did not exhaust his statutory

argument—that his grandchildren meet 8 U.S.C. § 1101(b)(1)(F)(i)’s defi-

nition of “child”—before either the IJ or BIA and, accordingly, that this

court lacks jurisdiction to consider this claim. Although Moreno never

made this precise statutory argument in the proceedings below, he did

raise his general argument that his grandchildren should be considered

qualifying relatives for purposes of cancellation of removal.

Although Moreno’s specific argument before the IJ and BIA focused on

his de facto parent-child relationship with his grandchildren, this argument

MORENO-MORANTE v. GONZALES 7501

FACTS AND PROCEDURAL HISTORY

On November 25, 2003, Moreno, a native and citizen of

Mexico, was appointed the legal guardian of his five U.S. citi-

zen minor grandchildren. Moreno alleges his grandchildren

were abused physically and emotionally by their natural

mother and respective natural fathers. In addition, he contends

both fathers are now absent and the mother has been removed

to Mexico due to the domestic violence issues involving her

children. Although he did not become a guardian until

November 2003, Moreno contends he and his spouse have

always played a major role in raising their grandchildren, who

have lived with Moreno on a permanent basis since 2002.

More than a month before Moreno was appointed guardian,

the Department of Homeland Security (“DHS”) issued a

Notice to Appear charging Moreno with removability under

section 212(a)(6)(A)(i) of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who

was present in the United States without having been admitted

or paroled. At his initial hearing on January 9, 2004, Moreno

conceded removability, contesting only the alleged date of

entry. Moreno also applied for cancellation of removal pursu-

ant to 8 U.S.C. § 1229(b)(1) and, in the alternative, voluntary

departure. Moreno sought and obtained a continuance so he

could determine whether his court-ordered custody of his

grandchildren constituted a formal adoption, possibly render-

ing them qualifying relatives for purposes of cancellation.

“was sufficient to put the BIA on notice” that § 1101(b)(1)’s definition of

“child” for cancellation of removal purposes was contested, and the

agency therefore had “an opportunity to pass on this issue.” Zhang v. Ash-

croft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam). Moreno’s failure to

elaborate on his general contention with a specific statutory argument is

therefore immaterial for jurisdiction purposes. See Kaganovich v. Gon-

zales, 470 F.3d 894, 897 (9th Cir. 2006) (“Petitioner’s failure to elaborate

on the argument in his brief to the BIA is immaterial to our jurisdiction.”).

7502 MORENO-MORANTE v. GONZALES

At a second hearing the following month, Moreno

requested and was granted a second continuance to consult

with DHS about the possibility of an administrative closure of

the removal proceeding in light of Moreno’s intent and ongo-

ing efforts to formally adopt his grandchildren.

During the final hearing on April 8, 2004, Moreno’s coun-

sel indicated he had been unable to speak with DHS about

closing the removal proceedings and indicated that Moreno’s

adoption of his grandchildren was still six to twelve months

from completion. DHS informed the IJ that, after considering

the merits of Moreno’s case, it had decided not to exercise its

discretion to administratively close the removal proceedings.

The IJ issued an oral decision: (1) denying Moreno’s

request for administrative closure because the government

had opted not to exercise its discretion to close the proceed-

ings; (2) pretermitting Moreno’s application for cancellation

of removal because he had no “qualifying relative” insofar as

his adoption of his grandchildren was not yet complete; and

(3) granting Moreno’s unopposed request for voluntary depar-

ture.

Moreno appealed to the BIA, arguing his grandchildren

“should be deemed qualifying relatives similar to ‘children’

for cancellation purposes” because “he holds permanent and

undisputed legal custody and guardianship” of them. The BIA

adopted and affirmed the IJ’s decision regarding “[Moreno’s]

failure to establish a qualifying relative for cancellation of

removal” and specifically rejected his request for a remand to

the IJ to allow Moreno “to conclude the adoption process of

his [U.S.] citizen grandchildren in order to be eligible for can-

cellation of removal.”

STANDARD AND SCOPE OF REVIEW

Where, as here, the BIA affirms the IJ pursuant to Matter

of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and does not

MORENO-MORANTE v. GONZALES 7503

express disagreement with any part of the IJ’s decision, the

BIA effectively adopts the IJ’s decision in its entirety. See

Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en

banc). Unlike a streamlined summary affirmance, which sig-

nifies only that the result the IJ reached was correct and any

errors were harmless or nonmaterial, a Burbano affirmance

signifies that the BIA has conducted an independent review of

the record and has determined that its conclusions are the

same as those articulated by the IJ. See id. & 1040 n.3. In this

case, because the BIA adopted the IJ’s decision, and

expressed no disagreement with it, we review the IJ’s decision

as if it were the BIA’s. Id. at 1039-40.

We review purely legal determinations de novo. See

Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.

2002). Although the agency’s interpretation of immigration

laws is entitled to deference, such deference is required only

“after we determine that a statute is ambiguous.” Kankamal-

age v. INS, 335 F.3d 858, 862 (9th Cir. 2003).

DISCUSSION

[1] To be eligible for cancellation of removal, a non-

permanent resident must establish, inter alia, that “removal

would result in exceptional and extremely unusual hardship to

the alien’s spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for permanent res-

idence.” 8 U.S.C. § 1229b(b)(1)(D) (emphasis added).

Moreno does not claim to have a qualifying spouse or parent,

but contends that each of his grandchildren qualifies as a

“child” under the statute.

“Child,” for purposes of cancellation of removal, is defined

by 8 U.S.C. § 1101(b)(1). Montero-Martinez, 277 F.3d at

1145. Moreno first argues that his grandchildren qualify under

this statute because they are orphans as defined by

§ 1101(b)(1)(F)(i). Alternatively, Moreno argues that his

grandchildren are “de facto” children in light of his legal

7504 MORENO-MORANTE v. GONZALES

guardianship and custody. Neither argument is supported by

—or permissible under—the law.

I. “Child” Under 8 U.S.C. § 1101(b)(1)(F)(i)

Our starting point for any issue of statutory construction is

the plain language of the statute. Engine Mfrs. Ass’n v. S.

Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004). If

the language in question has an unambiguous meaning, our

inquiry must cease. Montero-Martinez, 277 F.3d at 1141.

Here, the plain language at issue is unambiguous, and More-

no’s grandchildren do not satisfy its express terms.

[2] In § 1101(b)(1), Congress defines “child” for purposes

of cancellation of removal as “an unmarried person under

twenty-one years of age” falling within at least one of several

enumerated categories, including: children born out of wed-

lock, certain stepchildren, legitimate children, certain adopted

children (and their siblings), and certain orphans. 8 U.S.C.

§ 1101(b)(1)(A)-(F). Moreno contends his grandchildren

qualify as orphans, as defined by § 1101(b)(1)(F)(i).

Section 1101(b)(1)(F)(i) states:2

(1) The term “child” means an unmarried person

under twenty-one years of age who is—

....

(F) (i) a child, under the age of sixteen at the time a

petition is filed in his behalf to accord a classifica-

tion as an immediate relative under section 201(b) [8

U.S.C. § 1151(b)],

who is an orphan because of the death or disappear-

ance of, abandonment or desertion by, or separation

2

Paragraph breaks and emphasis added for clarity and ease of reading.

MORENO-MORANTE v. GONZALES 7505

or loss from, both parents, or for whom the sole or

surviving parent is incapable of providing the proper

care and has in writing irrevocably released the

child for emigration and adoption;

who has been adopted abroad by a United States cit-

izen and spouse jointly, or by an unmarried United

States citizen at least twenty-five years of age, who

personally saw and observed the child prior to or

during the adoption proceedings; or

who is coming to the United States for adoption by

a United States citizen and spouse jointly, or by an

unmarried United States citizen at least twenty-five

years of age, who have or has complied with the pre-

adoption requirements, if any, of the child’s pro-

posed residence:

Provided, That the Attorney General is satisfied that

proper care will be furnished the child if admitted to

the United States: Provided further, That no natural

parent or prior adoptive parent of any such child

shall thereafter, by virtue of such parentage, be

accorded any right, privilege, or status under this Act

....

[3] Moreno contends his grandchildren must be deemed

“orphans” by virtue of their abandonment by and legal separa-

tion from their natural parents. However, even accepting the

alleged abandonment and legal separation as true, Moreno’s

grandchildren do not satisfy § 1101(b)(1)(F)(i)’s require-

ments. By its plain language § 1101(b)(1)(F)(i) applies only

to a child for whom “a classification as an immediate relative

under [8 U.S.C. § 1151(b)]” is sought. It is uncontested that

no petitions for classification as an “immediate relative”

under § 1151(b) have been filed on Moreno’s grandchildren’s

behalf. Nor would such a petition be appropriate here. More-

no’s grandchildren are U.S. citizens themselves, whereas

7506 MORENO-MORANTE v. GONZALES

§ 1151(b) confers “immediate relative” status to the “children,

spouses, and parents” of U.S. citizens.

[4] As is plain from the subsequent clauses in the statute,

§ 1101(b)(1)(F)(i)’s purpose is to confer “child” status to for-

eign children being adopted by U.S. citizens, permitting adop-

tive parents to obtain immigration visas for their foreign

adoptees. See, e.g., Matter of Rodriguez, 18 I. & N. Dec. 9,

11 (BIA 1980) (granting visa petition to child born in Peru

because he qualified as an immediate relative orphan). More-

no’s petition presents the precisely opposite situation: a non-

citizen seeking to adopt U.S. citizen children. Simply put,

§ 1101(b)(1)(F)(i), by its plain unambiguous language, is

wholly inapplicable to Moreno’s grandchildren.3 As such,

they do not meet the definition of “child” under this subsec-

tion and, absent some other basis, Moreno lacks the requisite

qualifying relative to permit cancellation of his removal.4

Finally, as the IJ held, that Moreno “may have an outstand-

ing petition for adoption pending . . . does not equate with the

conclusion that [he] is the parent of a United States citizen.”

Had Moreno completed the adoption process, his grandchil-

dren (or at least some of his grandchildren) could have met

the definition of “child” under § 1101(b)(1)(E)(i) if Moreno

were able to show the children had been in his legal custody

and resided with him for at least two years or had been “bat-

tered or subject to extreme cruelty by the adopting parent or

3

Even if § 1101(b)(1)(F)(i) were somehow applicable to Moreno’s situ-

ation (which it is not), it is beyond dispute that none of his grandchildren

meet any of the statute’s requirements. The grandchildren’s parents have

not “in writing irrevocably released the child for emigration and adop-

tion.” Neither have any of the grandchildren “been adopted abroad by a

United States citizen.” Nor are they “coming to the United States for adop-

tion by a United States citizen.”

4

We recently held that a grandchild does not qualify as a “child” under

§ 1101(b)(1) for § 1229b(b)(1)(D) purposes in an unpublished decision.

Ayala-Hernandez v. Gonzales, No. 05-77077, 2007 U.S. App. LEXIS

4392 at *2 (9th Cir. Feb. 23, 2007).

MORENO-MORANTE v. GONZALES 7507

by a family member of the adopting parent residing in the

same household.” However, Moreno had not completed the

adoption process at the time of his removal proceedings, and

we are aware of no law permitting an IJ or the BIA to stay

removal proceedings pending an adoption without the govern-

ment’s consent.5

II. De Facto “Child”

Alternatively, Moreno argues that his grandchildren should

be considered qualifying relatives for purposes of cancellation

of removal by virtue of his legal custody and guardianship of

them. Specifically, Moreno argues that, “[b]y applying the

plain reading of the law in requiring a full adoption, the

[Attorney General] seeks to rupture a de[ ]facto parent-child

relationship” and that “[s]uch an absurd result goes contrary

to the general intent of immigration laws in keeping families

together and protecting the interests of United States citi-

zens.” Although Moreno’s arguments rightly engender sym-

pathy, they do not render the government’s position unlawful

or the IJ’s decision erroneous.

[5] Section 1229b(1)(D) simply does not contemplate the

cancellation of removal based on the hardship to be suffered

by a “de facto” child. Rather, cancellation of removal is

appropriate only if the detailed statutory definition of “child”

is met. The Supreme Court made this point explicit more than

twenty years ago with respect to § 1229b’s substantially simi-

lar predecessor statute: “suspension of deportation” under for-

mer INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994). See INS

v. Hector, 479 U.S. 85 (1986) (per curiam).

In Hector, the Supreme Court reversed a Third Circuit deci-

5

At oral argument, Moreno’s counsel indicated Moreno had suspended

his efforts to adopt his grandchildren, not wanting to permanently termi-

nate his daughter’s parental rights in the hope that she would rehabilitate

herself and regain custody.

7508 MORENO-MORANTE v. GONZALES

sion granting a petition due to the BIA’s failure to give “suffi-

cient consideration to whether Hector’s relationship with her

nieces was the functional equivalent of a parent-child relation-

ship” and, if so, whether her nieces would suffer the requisite

hardship warranting suspension of deportation. Id. at 87-88.

In so holding, the Third Circuit relied on Tovar v. INS, 612

F.2d 794 (3d Cir. 1980), an earlier case holding that the BIA

must consider hardship to an alien’s grandchild when their

relationship resembles a parent-child relationship.

Finding “the plain language of the statute . . . compelling,”

the Supreme Court held that the BIA “is not required . . . to

consider the hardship to a third party other than a spouse, par-

ent, or child, as defined by [statute].” Hector, 479 U.S. at 88.6

The Court observed that “Congress has specifically identified

the relatives whose hardship is to be considered, and then set

forth unusually detailed and unyielding provisions defining

each class of included relatives” and further noted that “[t]he

statutory definition of the term ‘child’ is particularly exhaus-

tive.” Id.

The Court acknowledged that, although “it could be argued

that the line [with respect to who qualifies as a ‘child’] should

have been drawn at a different point,” such “policy questions

[are] entrusted exclusively to the political branches of our

Government.” Id. at 89 (internal quotations omitted). Accord-

ingly, the Court concluded that, “even if Hector’s relationship

with her nieces closely resembles a parent-child relationship,

. . . Congress, through the plain language of the statute, [has]

precluded this functional approach to defining the term

‘child.’ ” Id. at 90 (footnote omitted).7

6

We reached a similar conclusion, rejecting the Third Circuit’s approach

several years before the Supreme Court weighed in. See Contreras-Buenfil

v. INS, 712 F.2d 401, 403 (9th Cir. 1983) (holding that an alien’s “step-

son” did not qualify as a “child” because the “stepchild” status was not

created by marriage, as required by the statute).

7

In so holding, the Court examined the legislative history of the statute,

noting that “Congress has shown its willingness to redefine the term

MORENO-MORANTE v. GONZALES 7509

[6] Although Hector analyzed 8 U.S.C. § 1229b’s pre-

decessor statute—the now-repealed 8 U.S.C. § 1254(a)—the

relevant provisions in the two statutes are virtually identical.8

In enacting the somewhat more restrictive “cancellation of

removal” requirements under § 1229b, Congress specifically

noted its changes were prompted by a weakening of the “sus-

pension of deportation” requirements through administrative

decisions.9 Congress accordingly amended the language it felt

had been misapplied—changing “extreme hardship” to “ex-

ceptional and extremely unusual hardship”—but chose to

leave the “spouse, parent, or child” language untouched,

apparently finding no similar error in the BIA’s and courts’

application of these terms. Furthermore, the “unusually

detailed” and “particularly exhaustive” definition of “child”

applicable to the former statute that so impressed the Supreme

Court, see Hector, 479 U.S. at 88, remains largely the same

in the modified version. If anything, it is now more detailed

‘child’ on a number of occasions, but it has not included nieces in that def-

inition or authorized [the Court] to adopt a functional definition.” Id.

(footnote omitted); see id. at 90 n.6. Neither has Congress expanded the

definition to include grandchildren.

8

Compare 8 U.S.C. § 1254(a) (1990) (“deportation would, in the opin-

ion of the Attorney General, result in extreme hardship to the alien or to

his spouse, parent, or child, who is a citizen of the United States . . . .”),

with 8 U.S.C. § 1229b (“removal would result in exceptional and

extremely unusual hardship to the alien’s spouse, parent, or child, who is

a citizen of the United States . . . .”).

9

See H.R. Rep. 104-828, at 213-14 (1996) (“The managers have deliber-

ately changed the required showing of hardship from ‘extreme hardship’

to ‘exceptional and extremely unusual hardship’ to emphasize that the

alien must provide evidence of harm to his spouse, parent, or child sub-

stantially beyond that which ordinarily would be expected to result from

the alien’s deportation. The ‘extreme hardship’ standard has been weak-

ened by recent administrative decisions . . . . Our immigration law and

policy clearly provide that an alien parent may not derive immigration

benefits through his or her child who is a United States citizen. The avail-

ability in truly exceptional cases of relief under section 240A(b)(1) must

not undermine this or other fundamental immigration enforcement poli-

cies.”) (emphasis added).

7510 MORENO-MORANTE v. GONZALES

and comprehensive. Compare 8 U.S.C. § 1101(b)(1) (1990),

with 8 U.S.C. § 1101(b)(1) (2000).

[7] Accordingly, Hector’s rationale appears equally appli-

cable to Moreno’s case and, in light of the unambiguous plain

language of the statutory definition, Congress has precluded

a “functional approach to defining the term ‘child.’ ” Hector,

479 U.S. at 90. As a result, Moreno’s de facto parent-child

relationship with his grandchildren is of no import, and the

IJ’s decision that Moreno’s grandchildren were not qualifying

relatives for purposes of cancellation of removal is entitled to

deference.

Though this result—separating five U.S. citizen children

from their grandfather, who appears to be their only loving

and stable source of care and support—may seem unduly

harsh and perhaps illogical, it is the result dictated by law.

Congress is of course free to correct any inequities resulting

from our application of its plain statutory language, as it has

done in the past.10

CONCLUSION

Moreno’s grandchildren thus do not meet the statutory defi-

nition of “child” for purposes of cancellation of removal. Nei-

ther do they qualify by virtue of his de facto parent-child

relationship with them because Congress has specifically pre-

cluded such a functional approach to defining the term “child”

for cancellation of removal purposes.

Accordingly, Moreno’s Petition for Review is DENIED.

10

See Hector, 479 U.S. at 90 n.7 (noting that Congress amended the

INA to overrule INS v. Phinpathy, 464 U.S. 183 (1984), which had

reached a seemingly harsh result regarding the “continuity of physical

presence” requirement dictated by Congress’s plain language); see also

supra note 9 and accompanying text.