Sanchez v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO SANCHEZ, 

Petitioner, No. 04-75584

v.

 Agency No.

A77-832-827

MICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 14, 2008—San Francisco, California

Filed April 2, 2008

Before: J. Clifford Wallace, Procter Hug, Jr., and

Mary M. Schroeder, Circuit Judges.

Opinion by Judge Schroeder;

Judge Wallace Writing Separately

3403

SANCHEZ v. MUKASEY 3405

COUNSEL

Frank Sprouls, San Francisco, California, for the petitioner.

Erica B. Miles, United States Department of Justice, Wash-

ington, D.C., for the respondent.

OPINION

SCHROEDER, Circuit Judge:

Mario Sanchez, a native and citizen of Mexico, petitions

for review of an order of the Board of Immigration Appeals

(“BIA”) affirming the denial of his application for cancella-

tion of removal. The BIA denied the application on the

ground that Sanchez lacked the good moral character required

3406 SANCHEZ v. MUKASEY

by 8 U.S.C. § 1229b(b)(1)(B), because he had smuggled his

alien wife into the country. Citing to Moran v. Ashcroft, 395

F.3d 1089 (9th Cir. 2005), Sanchez asks this court to remand

to the BIA, claiming he is eligible for the “family unity”

waiver contained in 8 U.S.C. § 1182(a)(6)(E)(iii). This is the

first published opinion of this court after Moran to consider

whether the family unity waiver is available to an alien denied

cancellation because he smuggled his spouse, parent, or child

into this country.

In Moran, we concluded that an applicant for cancellation

of removal is eligible to be considered for a discretionary

“family unity” waiver of the alien-smuggling bar when the

smuggled alien was the applicant’s spouse, parent, son or

daughter. 395 F.3d at 1094-95. We denied the petitioner relief

in that case because when the petitioner smuggled the alien,

she was not yet his wife. Id. We reasoned that the waiver

would have applied if they had been married at the time of the

entry.

The government’s principle contention in this case is that

Moran’s discussion of the applicability of the family unity

waiver to cancellation is dictum that we are free to ignore. We

do not accept that contention. We hold that Moran’s reason-

ing is controlling in this case. We therefore remand to the

BIA.

[1] The complicated framework of the cancellation of

removal statute, 8 U.S.C. § 1229b(b), is important to our anal-

ysis. The relevant subsection governing cancellation provides:

The Attorney General may cancel removal of, and

adjust to the status of an alien lawfully admitted for

permanent residence, an alien who is inadmissible or

deportable from the United States if the alien—

(A) has been physically present in the

United States for a continuous period of not

SANCHEZ v. MUKASEY 3407

less than 10 years immediately preceding

the date of such application;

(B) has been a person of good moral char-

acter during such period;

(C) has not been convicted of an offense

under section 1182(a)(2), 1227(a)(2), or

1227(a)(3) of this title, subject to paragraph

(5); and

(D) establishes that removal would result

in exceptional and extremely unusual hard-

ship to the alien’s spouse, parent, or child,

who is a citizen of the United States or an

alien lawfully admitted for permanent resi-

dence.

8 U.S.C. § 1229b(b)(1) (emphasis added). As the language

makes clear, the Attorney General may not cancel removal

under § 1229b(b)(1) unless the alien establishes “good moral

character.”

Section 1229b(b) itself does not contain any definition of

good moral character. We therefore look to the general defini-

tions section of the Immigration and Nationality Act, 8 U.S.C.

§ 1101, and specifically to § 1101(f)(3). This subsection

defines the term by pointing us to the admissibility provisions

of section 1182: a person who is a member of the class of per-

sons described in I.N.A. § 212(a)(6)(E), 8 U.S.C.

§ 1182(a)(6)(E) cannot be found to have good moral charac-

ter, regardless of admissibility or inadmissibility. Subsection

1101(f)(3) states:

[n]o person shall be regarded as, or found to be, a

person of good moral character who, during the

period for which good moral character is required to

be established, is, or was . . . a member of one or

3408 SANCHEZ v. MUKASEY

more of the classes of persons, whether inadmissible

or not, described in paragraph[ ] . . . (6)(E) . . . of

section 1182(a) of this title . . . .

[2] The general definition of good moral character thus

incorporates provisions that on their face govern admissibil-

ity, because § 1182(a)(6)(E) is located in that portion of the

statute. Section 1182 governs whether an alien is admissible

to the United States, or whether an alien may adjust status to

that of permanent resident. In order to determine whether an

alien is of good moral character for cancellation of removal,

we must determine whether the alien has engaged in conduct

that would render the alien inadmissible under § 1182.

[3] Alien smuggling constitutes such conduct. Section

1182(a)(6)(E)(i) renders alien smugglers inadmissible. It pro-

vides that “[a]ny alien who at any time knowingly has encour-

aged, induced, assisted, abetted, or aided any other alien to

enter or to try to enter the United States in violation of law is

inadmissible.” Accordingly, because a smuggler is a “member

of the [inadmissible] classes of persons” described in

§ 1182(a)(6)(E)(i), a smuggler cannot be found to have good

moral character for purposes of an application for cancellation

of removal. See 8 U.S.C. §§ 1101(f)(3); 1229b(b)(1).

[4] The particular provision of § 1182 in dispute here, how-

ever, the “family unity” waiver, establishes a limited and dis-

cretionary waiver of inadmissibility for a smuggler when the

smuggled alien was a close family member.

Section 1182(d)(11) provides:

The Attorney General may, in his discretion for

humanitarian purposes, to assure family unity, or

when it is otherwise in the public interest, waive

application of clause (i) of subsection (a)(6)(E) . . .

in the case of any alien lawfully admitted for perma-

nent residence who temporarily proceeded abroad

SANCHEZ v. MUKASEY 3409

voluntarily and not under an order of removal, and

who is otherwise admissible to the United States as

a returning resident under section 1181(b) of this

title . . . and in the case of an alien seeking admission

or adjustment of status as an immediate relative or

immigrant under section 1153(a) of this title . . .

(other than paragraph (4) thereof), if the alien has

encouraged, induced, assisted, abetted, or aided only

an individual who at the time of such action was the

alien’s spouse, parent, son, or daughter (and no other

individual) to enter the United States in violation of

law.

[5] In Moran we considered this provision for the first time

in the context of cancellation of removal. 395 F.3d at 1093.

The petitioner sought review of an order of removal on

grounds of alien smuggling. Id. at 1090. The alien had smug-

gled his future wife into the country. Id. Moran considered the

applicability of the waiver and held it did not apply in that

case. Id. at 1094 Its analysis is critical to our own.

[6] Moran recognized that, on its face, the waiver of inad-

missibility in (d)(11) applies to admissibility or eligibility for

adjustment of status, not to relief from cancellation. See id. at

1093. The Moran opinion noted, however, that the relevant

definition of good moral character for cancellation purposes

is found in a provision relating to inadmissibility. See id. at

1093. To apply the good moral character provision required

some adaptation of the language, including the disqualifica-

tion for alien smuggling, so that it would apply in the context

of an application for cancellation of removal. In the words of

the opinion, it was necessary to “translat[e] the alien-

smuggling inadmissibility provision and its exceptions into

the language of cancellation of removal.” Id.

In Moran, we relied upon Gonzalez-Gonzalez v. Ashcroft,

390 F.3d 649, 652 (9th Cir. 2004), where we considered a

provision that on its face rendered an alien inadmissible. We

3410 SANCHEZ v. MUKASEY

held that it also rendered an alien ineligible for cancellation.

389 F.3d at 1093. Moran cited Gonzalez-Gonzalez for the

proposition that cancellation of removal must be read to

“cross reference the relevant concepts in other statutes.” Id.

(internal alterations and quotation marks omitted).

In Gonzalez-Gonzalez, we held that the petitioner, who had

entered without being admitted and was later convicted of the

crime of domestic violence, was ineligible for cancellation of

removal. 390 F.3d at 650. Our opinion explained that the sec-

tion governing cancellation, see 8 U.S.C. § 1229b(b)(1)(C),

renders aliens ineligible if they have been convicted of an

offense listed in either I.N.A. § 212(a)(2), 8 U.S.C.

§ 1182(a)(2), a provision governing inadmissibility, or I.N.A.

§ 237(a)(2)-(3), 8 U.S.C. § 1227(a)(2)-(3), provisions govern-

ing removability. Id. Domestic violence is listed as an offense

under the removal provisions, see § 1227(a)(2)(E)(i), but not

the inadmissibility provision. Id. at 652. The removal provi-

sions state that they only apply to aliens “admitted to the

United States.” § 1227(a). Because the petitioner was never

admitted to the United States, and his offense was only found

in the removal provisions, he argued that it posed no bar to

his application for cancellation of removal.

We rejected that argument. Gonzalez-Gonzalez, 390 F.3d at

652. We explained that the “language of § 1229b indicates

that it should be read to cross-reference a list of offenses in

three statutes, rather than the statutes as a whole.” Id. Petition-

er’s status as an alien present without admission was irrele-

vant. See id. at 653. Because the petitioner was convicted of

an offense included in the grounds for removal, he was ineli-

gible for cancellation, regardless of whether he had ever been

lawfully admitted. We denied relief from removal. Id.

Moran relied upon that reasoning to reach a conclusion that

would make some aliens eligible to obtain relief from removal

because they would have been eligible for a waiver of inad-

missibility. Moran was decided after the BIA decision in this

SANCHEZ v. MUKASEY 3411

case. Petitioner Sanchez therefore asks that we remand for the

BIA to consider his eligibility for a waiver under Moran.

The government argues that the Moran panel wrongly con-

cluded that the family unity waiver is available to aliens seek-

ing cancellation. According to the government, the general

definition of good moral character in § 1101(f) directs us to

look only to the conduct described in the inadmissibility pro-

visions of § 1182 to determine whether a person is of good

moral character. If the conduct would render an alien inadmis-

sible, then the alien lacks the requisite good moral character

for cancellation. The waiver provision is thus not relevant.

The government further points out that nothing in § 1101(f)

indicates that the inadmissibility waiver should apply in the

cancellation context. Nor does anything in the statute suggest

we should incorporate the waiver, since by its own terms, it

does not prevent the petitioner from being a member of the

class of persons described in § 1182(a)(6)(E). The waiver pro-

vision itself only applies to a permanent resident who traveled

abroad, or an alien seeking to adjust status under 8 U.S.C.

§ 1153(a) (providing for immigrant visas for relatives of U.S.

citizens). This petitioner is in neither of those categories, so

the government concludes that the waiver does not apply to

him.

[7] The reasoning of Moran, however, is contrary to this

logic. Under Moran, all of the provisions of § 1182(a)(6)(E)

pertaining to admissibility, including the family unity waiver,

must be read into the provisions governing eligibility for can-

cellation. The government’s position cannot be squared with

the reasoning of Moran.

The government did not petition for rehearing in Moran,

even though it disagreed with its reasoning, because the gov-

ernment prevailed in the result. Numerous memorandum dis-

positions of this court have followed Moran, and we have not

yet received a government petition for rehearing en banc. See

3412 SANCHEZ v. MUKASEY

Carrillo-Estrada v. Mukasey, No. 02-72230, 2007 U.S. App.

LEXIS 27158 (9th Cir. 2007); Rodriguez-Reyes v. Keisler,

No. 05-76610, 2007 U.S. App. LEXIS 23183 (9th Cir. 2007);

Godinez-Tejeda v. Keisler, No. 05-72934, 2007 U.S. App.

LEXIS 23554 (9th Cir. 2007); Paz Guzman v. Gonzales, No.

05-72638, 2007 U.S. App. LEXIS 1241 (9th Cir. 2007);

Mendoza-Calvillo v. Gonzales, No. 04-75533, 2006 U.S. App.

LEXIS 19710 (9th Cir. 2006); Villalobos v. Gonzales, No. 04-

76532, 2006 U.S. App. LEXIS 9136 (9th Cir. 2006); Velaz-

quez v. Gonzales, No. 04-72436, 2006 U.S. App. LEXIS

12359 (9th Cir. 2006); Garcia-Olivares v. Gonzales, No. 04-

75743, 2006 U.S. App. LEXIS 4186 (9th Cir. 2006); Pinedo

v. Gonzales, No. 04-74099, 2006 U.S. App. LEXIS 4223 (9th

Cir. 2006); Carmona v. Gonzales, No. 03-70703, 2005 U.S.

App. LEXIS 22966 (9th Cir. 2005). None of these disposi-

tions, however, are precedential. See 9th Cir. R. 36-3(a). We

have also found at least one memorandum disposition, also

non-precedential, that treated Moran’s analysis as dictum.

Sanchez v. Gonzales, No. 04-70271, 2006 U.S. App. LEXIS

19221, *2 (9th Cir. 2006).

[8] We therefore turn to the government’s contention

before us that the relevant analysis in Moran is dictum and

not binding, and that this panel is free to evaluate the merits

of the government’s position that Moran’s statutory analysis

is incorrect. While we have used a number of verbal formula-

tions to describe “dictum,” we treat reasoning central to a

panel’s decision as binding later panels. See Smith v. Patrick,

508 F.3d 1256, 1260 (9th Cir. 2007) (holding that reasoning

that constituted “the sole means by which the result was

reached . . . was not dictum”); United States v. Ingham, 486

F.3d 1068, 1079 n.8 (9th Cir. 2007) (concluding that “careful

. . . treatment of the subject . . . [,] not ‘made casually [and

with] consideration of the alternatives’ ” was not dictum

(quoting United States v. Johnson, 256 F.3d 895, 915 (9th Cir.

2001) (en banc) (Kozinski, J., concurring)); see also Johnson,

256 F.3d at 920 (Tashima, J., concurring) (concluding that

dicta are “statements ‘not necessary to the decision’ of the

SANCHEZ v. MUKASEY 3413

case” (quoting Export Group v. Reef Indus., 54 F.3d 1466,

1472 (9th Cir. 1995)). Under our circuit’s law, when a panel

selects a single line of reasoning to support its result, the rea-

soning cannot be ignored as dictum.

[9] Under this standard, Moran’s conclusion that the family

unity waiver is available to aliens seeking cancellation of

removal is not dictum. The availability of the waiver was the

central issue considered by the panel. In a three-page discus-

sion, the panel noted that it was deciding an issue of first

impression, distinguished contrary authority, translated the

plain language of the family unity waiver into a standard

applicable to the cancellation context, and applied that stan-

dard to the petitioner’s case. See Moran, 395 F.3d at 1092-95.

We are bound to follow and apply the law as stated by Moran.

The government in this case is essentially contending that

there was another way for the Moran panel to reach the same

conclusion of ineligibility for the waiver, i.e., by adopting the

government’s statutory analysis. This is not a useful standard.

If adopted, it would render virtually any statement of appel-

late court reasoning non-precedential, because there is almost

always more than one way to get to a given result. We are

therefore bound by Moran’s core reasoning.

We are aware that the result in Moran is in tension with the

decision of this court in Khourassany v. INS, 208 F.3d 1096,

1101 (9th Cir. 2000), where we held that the waiver provision

did not apply to an application for voluntary departure. In

Moran, we distinguished Khourassany on the ground it was

not decided in the context of cancellation. 395 F.3d at 1093.

The government here argues that distinction is immaterial, yet

the Moran panel concluded the distinction was material, and

we are bound by that conclusion as well. The government has

not cited Khourassany to us and does not rely on its holding

as supporting its position in this case.

[10] For the foregoing reasons, we conclude that this case

is controlled by the panel’s conclusion in Moran that the

3414 SANCHEZ v. MUKASEY

waiver provision of 8 U.S.C. § 1182(a)(6)(E)(iii) applies to

applications for cancellation of removal. Because Sanchez

appears to be eligible for the family unity waiver, we

REMAND to the BIA for its consideration in this case.

The Petition for Review is GRANTED.

WALLACE, Circuit Judge, writing separately:

I have some doubt whether Moran v. Ashcroft, 395 F.3d

1089 (9th Cir. 2005), is binding on the case before us and

compels us to grant the petition for review. Of particular con-

cern is that the parties in Moran did not raise or brief the issue

of whether the family unity waiver in the section 1182 admis-

sibility provisions applies in the cancellation of removal con-

text. This was a panel venture. The issue was not therefore

“refined by the fires of adversary presentation,” see United

States v. Crawley, 837 F.2d 291, 293 (7th Cir. 1988), which

may explain why the Moran panel ultimately proffered an

interpretation so at odds with the text and structure of the rele-

vant statutory scheme.

That we are required to follow this interpretation, which

was unnecessary to the resolution of the case, is at least ques-

tionable. The ultimate holding in Moran was simply that the

petitioner did not qualify for the waiver because he was not

married to his wife at the time he paid smugglers to bring her

illegally to the United States from Mexico. See Moran, 395

F.3d at 1090. Revising the language of the statute to apply to

cancellation of removal was superfluous because that revision

did not affect the language of the waiver requiring that the

smuggler has smuggled a “spouse, parent, son, or daughter

(and no other individual)” in order to qualify for the waiver.

See 8 U.S.C. § 1182(d)(11). Regardless of whether the waiver

applied to an application for cancellation of removal, the peti-

tioner would not have qualified. Furthermore, the statement in

SANCHEZ v. MUKASEY 3415

Moran that “Moran would be eligible for the waiver . . . if the

only individuals he had helped smuggle into the country were

his son and his spouse,” 395 F.3d at 1094, is clearly dicta. See

Wainwright v. Witt, 469 U.S. 412, 422 (1985) (holding that

where a court was only required to decide when prospective

jurors could not be excluded, it was unnecessary for the court

to decide when jurors could be excluded). But the majority

makes a good argument under Ninth Circuit law why Moran

is binding on us, so I will write separately to express my

belief that the Moran “reasoning,” which the majority con-

cludes it is required to follow, was wrongly decided and

should be reconsidered by this court sitting en banc.

As the majority expressed in its explanation of the applica-

ble statutory framework, section 1229b(b)(1) of the Immigra-

tion and Nationality Act provides that to be eligible for

cancellation of removal, a person must be of good moral char-

acter, but does not provide a definition of good moral charac-

ter. The general definitions section of the Act directs us to

several specific admissibility provisions in section 1182,

including section 1182(a)(6)(E), for a definition of good

moral character. See 8 U.S.C. § 1101(f)(3). Section

1182(a)(6)(E)(i) in turn indicates that alien smugglers are

inadmissible. Thus, by way of extrapolation, a smuggler inad-

missible according to section 1182 also lacks good moral

character for cancellation of removal under section 1229.

However, another provision of section 1182 establishes a

limited and discretionary waiver of inadmissibility for a

smuggler when the smuggled alien was a close family mem-

ber. See 8 U.S.C. §§ 1182(a)(6)(E)(iii), (d)(11). Moran held

that the waiver applied in the cancellation of removal context

and that, if an alien smuggler had smuggled in a close family

member, he did not lack good moral character and was eligi-

ble for cancellation of removal. I believe this conclusion was

erroneous.

First, Moran disregards the plain meaning of the relevant

statutes. See Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th

3416 SANCHEZ v. MUKASEY

Cir. 2005) (“In attempting to determine the meaning of a stat-

ute, ‘we look first to the plain meaning . . . and give effect to

that meaning where fairly possible’ ”). The plain language of

the waiver applies only to “any alien lawfully admitted for

permanent residence who temporarily proceeded abroad vol-

untarily and not under an order of removal, and who is other-

wise admissible to the United States as a returning resident”

and to “an alien seeking admission or adjustment of status as

an immediate relative or immigrant . . . .” 8 U.S.C.

§ 1182(d)(11). That language explicitly limits the application

of the waiver to lawful permanent residents, see 8 U.S.C.

§ 1101(a)(20), and to the spouses and children of citizens or

the spouses and unmarried children of lawful permanent resi-

dents, see 8 U.S.C. § 1153(a).

Thus, the waiver does not apply to all aliens found inadmis-

sible under section 1182(a)(6)(E). For example, according to

the plain language of the waiver provision, though the waiver

would apply to a permanent resident, it does not apply to a

temporary resident alien who briefly travels abroad, attempts

to re-enter the United States, and is denied admission because

he is found to have smuggled a close family member into the

United States. The waiver would also not apply to a married

son or daughter of a lawful permanent resident seeking admis-

sion or adjustment of status. See 8 U.S.C. § 1153(a)(2). These

examples illustrate that the waiver is not a general waiver of

section 1182(a)(6)(E). It enumerates only certain categories of

inadmissible aliens. Other categories of aliens inadmissible

under section 1182(a)(6)(E) are not entitled to the waiver.

As the waiver does not apply to all inadmissible aliens, it

is an even greater stretch to apply the waiver in the context

of cancellation of removal, for which it plainly was not con-

templated. This leads to the second major flaw in Moran’s

statutory interpretation: its application of section 1182(d)(11)

(which relates to the status of inadmissibility) to section

1229b(b)(1) (which relates to the discretionary determination

of good moral character) is inconsistent with the relevant stat-

SANCHEZ v. MUKASEY 3417

utory scheme. In fact, the waiver provision has nothing at all

to do with good moral character, because good moral charac-

ter is irrelevant to inadmissibility. Inadmissibility is simply

based on membership in the categories enumerated in section

1182; pursuant to that section, aliens may be inadmissible for

a variety of reasons, some of which are completely unrelated

to good moral character. For example, section 1182(a)(1)

denies admissibility on the basis of health concerns. Even the

alien smuggling provision in section 1182(a)(6)(E) is not dis-

cussed in terms of moral character; alien smugglers are sim-

ply a category of aliens who are inadmissible because section

1182 deems them so. Section 1182(d)(11) waives the inad-

missibility of alien smugglers, but it does not indicate that

smugglers who have smuggled immediate family have good

moral character.

Because section 1182(d)(11) speaks only to inadmissibility,

extrapolating it to apply to a section 1229b(b)(1) finding of

good moral character as Moran suggests requires some sort of

justification in section 1229 or section 1101. There is none.

Section 1101 clearly identifies the subsections of 1182 that

apply to the definition of good moral character, and it does

not reference subsection 1182(d)(11) or any other waiver.

To the contrary, the language of section 1101 supports the

distinction between inadmissibility and good moral character,

stating that its provisions apply to classes of persons

described in the relevant statutes “whether inadmissible or

not.” 8 U.S.C. § 1101(f)(3). Thus, consistent with section

1101, an alien who smuggled close family could be admissi-

ble under section 1182 because his inadmissibility is waived,

but still lack the requisite good moral character under section

1101 for cancellation of removal purposes. In sum, it appears

that the good moral character requirement simply cannot be

“waived.”

Third, Moran relies in vain on Gonzalez-Gonzalez v. Ash-

croft, 390 F.3d 649 (9th Cir. 2004). Our holding in Gonzalez-

3418 SANCHEZ v. MUKASEY

Gonzalez does not support Moran’s rewriting of section

(d)(11) to replace the language of “admissibility, applications

for admission, and adjustment of status with references to

cancellation of removal.” Moran, 395 F.3d at 1093. As the

majority described, in Gonzalez-Gonzalez we analyzed the

language of 8 U.S.C. § 1229b(b)(1)(C). That section states

that, to be eligible for cancellation of removal, the alien must

show that he “has not been convicted of an offense under sec-

tion 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title . . . .”

8 U.S.C. § 1229b(b)(1)(C). Section 1182, as discussed, is

titled “Inadmissible aliens” and section 1227 is titled “Deport-

able aliens.” See Gonzalez-Gonzalez, 390 F.3d at 650.

Gonzalez-Gonzalez was an inadmissible alien who had been

convicted of a domestic violence offense. Id. Domestic vio-

lence, however, is not listed as an offense under the inadmis-

sible aliens section, 1182. It is only listed under 8 U.S.C.

§ 1227(a)(2), relating to deportable aliens. See id. Therefore,

Gonzalez-Gonzalez argued that, since he was an inadmissible

alien who was convicted of domestic violence, the offenses

listed under section 1227 did not apply to him as grounds for

ineligibility for cancellation. Id. at 652.

We disagreed, holding that “[t]he plain language of

§ 1229b indicates that it should be read to cross-reference a

list of offenses in three statutes, rather than the statutes as a

whole. The most logical reading of ‘convicted of an offense

under’ is that reached by the BIA: ‘convicted of an offense

described under’ each of the three sections.” Id. We did not

rewrite the statute. We simply understood that the three sec-

tions specifically referenced in 8 U.S.C. § 1229(b)(1)(C) were

relevant because of the offenses listed therein, not because of

where they fit in the overall statutory structure. See id. We did

not say that the language of the admissibility and deportability

statutes should be translated into the language of cancellation

of removal at certain times. Our holding was far more limited

than that, stating only that because domestic violence was

listed under one of the three statutes in section 1229(b)(1)(C),

Gonzalez-Gonzalez was ineligible for cancellation. See id.

SANCHEZ v. MUKASEY 3419

at 652-53. Thus, Gonzalez-Gonzalez simply cannot support

Moran’s whole-cloth rewriting of the statute.

Fourth, as the majority states, Maj. Op. at 3413, Moran

conflicts with this court’s holding in Khourassany v. INS, 208

F.3d 1096, 1101 (9th Cir. 2000). In Khourassany, we held

that the waiver provision did not apply to an application for

voluntary departure. Id. Though Moran dealt with cancella-

tion of removal and not voluntary departure, the good moral

character requirement is identical. The majority argues that

the Moran panel concluded the distinction was material and

that we are bound by that statement. Maj. Op. at 3413-14. But

Moran can hardly be said to have distinguished Khourassany;

it simply ignored the contrary authority. The only reference

Moran makes to the earlier case is the following:

The application of this statutory scheme in the can-

cellation of removal context is an issue of first

impression in the Ninth Circuit. Cf. Khourassany v.

INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (applying

the alien smuggling rule to the good moral character

requirement in the context of a determination of eli-

gibility for voluntary departure).

Moran, 395 F.3d at 1093. Moran did not even acknowledge

that Khourassany was in conflict, and offered no justification

for the contradictory set of rules it created.

Thus, Moran has now put us in the unreasonable situation

in which an alien smuggler applying for voluntary departure

cannot avail himself of the waiver, whereas an alien smuggler

applying for cancellation of removal, using the same statutory

scheme, can. That conflict should be addressed by the en banc

court.

Finally, that Congress has expressed an interest in family

unification does not mean that we can thwart Congress’s lan-

guage in an effort to promote our perception of Congress’s

3420 SANCHEZ v. MUKASEY

intent. Congress knows how to create exceptions to the smug-

gling bar for the benefit of family reunification, and has done

so. See 8 U.S.C. §§ 1182(a)(6)(E)(ii), (d)(11). Here, Congress

has clearly limited the application of the waiver. If Congress

decides that a person who has smuggled immediate family

members does not lack the good moral character required for

cancellation of removal, it can so legislate. We cannot.