Alberto Mendez-Garcia v. Loretta Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERTO MENDEZ-GARCIA, No. 15-71931

Petitioner,

Agency No.

v. A070-095-653

LORETTA E. LYNCH, Attorney

General,

Respondent.

MARIO RIVERA-BALTAZAR, No. 13-72924

Petitioner,

Agency No.

v. A098-382-970

LORETTA E. LYNCH, Attorney OPINION

General,

Respondent.

On Petition for Review of Orders of the

Board of Immigration Appeals

Argued and Submitted September 1, 2016

Pasadena, California

Filed October 20, 2016

2 MENDEZ-GARCIA V. LYNCH

Before: Barry G. Silverman, Sandra S. Ikuta, and

Paul J. Watford, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Watford

SUMMARY*

Immigration

In consolidated cases, the panel denied Alberto Mendez-

Garcia’s and Mario Rivera-Baltazar’s petitions for review

from the Board of Immigration Appeals’s decisions denying

cancellation of removal because while petitioners’

applications were pending their sons turned 21 and no

longer met the definition of “child” under 8 U.S.C.

§ 1101(b)(1).

The panel held that the BIA reasonably interpreted

8 U.S.C. § 1229b(b)(1)(D) to require an alien applying for

cancellation to establish hardship to a qualifying relative as

of the time the Immigration Judge adjudicates the application.

The panel thus held that the IJ in each case did not err in

considering whether petitioners’ sons were qualifying

relatives as of the time of the decision on the application.

The panel held that petitioners’ due process rights were

not violated by the agency’s failure to adjudicate their

applications before their sons turned 21, by the denial of their

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MENDEZ-GARCIA V. LYNCH 3

applications for lack of a qualifying relative at the time of the

IJ’s final decision, or because their “settled expectations”

that they could apply for and receive cancellation were upset

by the change in status of their qualifying relatives.

The panel also held that Mendez-Garcia’s due process

right to a “fundamentally fair proceeding” was not violated

by the application of the statutory cap on grants of

cancellation pursuant to 8 U.S.C. § 1229b(e).

Judge Watford concurred, joining the court’s opinion

because it correctly resolved the cases, but writing separately

to emphasize that the dispositive factor in denying

petitioners’ procedural due process claim was their lack of

diligence in pressing for expedited review of their

applications.

COUNSEL

Michael Joseph Codner (argued), Law Offices of Michael J.

Codner, San Diego, California; Murray D. Hilts, San Diego,

California; for Petitioners.

Jane T. Schaffner (argued), Trial Attorney; Holly M. Smith

and Janice K. Redfern, Senior Litigation Counsel; Linda S.

Wernery, Assistant Director; Benjamin C. Mizer, Principal

Deputy Assistant Attorney General; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C., for Respondent.

4 MENDEZ-GARCIA V. LYNCH

OPINION

IKUTA, Circuit Judge:

Alberto Mendez-Garcia’s application for cancellation of

removal claimed that his removal would result in hardship to

his son, who was a United States citizen under 21 years of

age at the time of the application. See 8 U.S.C.

§ 1229b(b)(1)(D). Mario Rivera-Baltazar’s application for

cancellation of removal made the same claim with respect to

his son, who was likewise a citizen who had not yet turned

21.1 While these applications were pending, the petitioners’

sons turned 21 and no longer met the statutory definition of

“child,” see 8 U.S.C. § 1101(b)(1). The Board of

Immigration Appeals (BIA) held that because the petitioners’

sons were no longer children, the petitioners had failed to

show that their removal would result in a hardship to a

qualifying relative, and therefore they were ineligible for

cancellation of removal. Mendez-Garcia and Rivera-Baltazar

petition for review of the BIA’s denial of their applications.

We have jurisdiction under 8 U.S.C. § 1252, and now deny

their petitions for review.

I

We begin by describing the legal background. The

Immigration and Nationality Act (INA) gives the Attorney

General discretion to cancel the removal of an alien who is

inadmissible or deportable from the United States. 8 U.S.C.

§ 1229b(b)(1). In order to be eligible for this relief, the alien

must meet four statutory requirements, which include

establishing “that removal would result in exceptional and

1

These petitions are consolidated for purposes of disposition.

MENDEZ-GARCIA V. LYNCH 5

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 residence.” 8 U.S.C.

§ 1229b(b)(1)(D).2 The INA defines “child” as “an

unmarried person under twenty-one years of age” who

additionally satisfies one of several criteria. Id. § 1101(b)(1).

2

8 U.S.C. § 1229b(b) provides, in pertinent part:

(b) Cancellation of removal and adjustment of status for

certain nonpermanent residents

(1) In general 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 less than

10 years immediately preceding the date of

such application;

(B) has been a person of good moral character

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 hardship to

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

citizen of the United States or an alien

lawfully admitted for permanent residence.

6 MENDEZ-GARCIA V. LYNCH

Section 1229b(b)(1)(D) does not directly identify the

point in time when the alien’s removal must result in a

hardship to a qualifying relative. The section does not

specify whether the alien’s removal must result in a hardship

at the time the alien receives a notice to appear, at the time

the alien files the cancellation of removal application, at the

time the immigration judge (IJ) adjudicates the application,

or at some other time. The BIA has addressed this issue in

two precedential decisions. See Matter of Isidro-Zamorano,

25 I. & N. Dec. 829, 830–31 (BIA 2012); Matter of Bautista

Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006). Bautista

Gomez involved an alien whose parents had become lawful

permanent residents (and thus qualifying relatives for

purposes of § 1229b(b)(1)(D)) after the alien’s application for

cancellation of removal was initially denied. After her

parents became lawful permanent residents, the alien filed a

motion to reopen. The IJ had denied the motion because the

alien did not have a qualifying relative at the time the alien

received the notice to appear. Bautista Gomez, 23 I. & N.

Dec. at 894. The BIA vacated the IJ’s decision. It held that

“an application for relief from removal is a continuing one,”

so that both the issue of good moral character,

§ 1229b(b)(1)(B), and “the issue of qualifying relatives”

should be determined “as of the time an application for

cancellation of removal is finally decided.” Id. The BIA

reasoned that “[o]therwise, such factors as the birth of a

United States citizen child, marriage to a lawful permanent

resident or citizen, or a serious accident or illness involving

a qualifying relative could not be used as the basis for a

motion to reopen to file, or to seek further consideration of,

an application for cancellation of removal.” Id. Because the

alien’s parents were qualifying relatives at the time the IJ

adjudicated the alien’s application for cancellation of

MENDEZ-GARCIA V. LYNCH 7

removal, the alien met the requirement in § 1229b(b)(1)(D).

Id.

The BIA subsequently applied this rule in a decision

involving an alien who lost his qualifying relative before his

application was adjudicated. See Isidro-Zamorano, 25 I. &

N. Dec. at 830–31. Isidro-Zamorano involved an alien whose

application for cancellation of removal identified his son, a

United States citizen, as his qualifying relative. The son was

under 21 at the time the alien filed the application, but had

turned 21 by the time the application was adjudicated.

Noting its long-standing rule that an application for relief

from removal is a continuing application, the BIA concluded

that the alien “did not have a qualifying relative when the

Immigration Judge adjudicated the application and therefore

could not establish eligibility for relief.” Id. at 831. Isidro-

Zamorano recognized that the case presented “a difficult

situation because [the alien] has lost his eligibility for relief”

during the pendency of his application, while the alien in

Bautista Gomez had acquired qualifying relatives during this

period, and therefore benefitted from the BIA’s interpretation

of § 1229b(b)(1)(D). Id. at 831 & n.2. Nevertheless, the BIA

concluded that it “must, of course, interpret the provision

consistently” regardless whether the interpretation benefits or

harms the alien’s interests. Id. The BIA then reiterated its

conclusion that the issue of qualifying relatives should be

considered “at the time an application for cancellation of

removal is decided,” because “[o]therwise, factors arising

subsequent to the filing of an application that may be

favorable to the respondent’s claim, such as the birth of a

United States citizen child, marriage to a lawful permanent

resident or citizen, or a serious accident or illness involving

a qualifying relative, could not be considered in determining

the existence of exceptional and extremely unusual hardship.”

8 MENDEZ-GARCIA V. LYNCH

Id. at 830–31; see, e.g., Bautista Gomez, 23 I. & N. Dec. at

894.

In addition to prescribing eligibility requirements for

inadmissible or deportable aliens seeking cancellation of

removal, see 8 U.S.C. § 1229b(b), the INA imposes an annual

limit on the number of aliens who may receive cancellation

relief. See 8 U.S.C. § 1229b(e)(1); see also 8 C.F.R.

§ 1240.21. Under the cap imposed by § 1229b(e)(1), “the

Attorney General may not cancel the removal and adjust the

status under this section . . . of more than 4,000 aliens in any

fiscal year.”

Even when an alien otherwise qualifies for relief and the

annual number of grants has not been exhausted, “the

ultimate decision whether to grant relief . . . rests with the

Attorney General.” Romero-Torres v. Ashcroft, 327 F.3d

887, 889 (9th Cir. 2003).

II

We next turn to the facts of these consolidated cases.

A

Alberto Mendez-Garcia is a citizen of Mexico who

illegally entered the United States in 1990. Except for a brief

absence in August 1991, he has resided continuously in the

United States since his entry. While in the United States,

Mendez-Garcia had two children; the younger was born in

California on March 12, 1992. The record establishes that

Mendez-Garcia had a criminal record. In 1996, Mendez-

Garcia was arrested following a domestic dispute with his

wife, but was not charged. In May 2008, Mendez-Garcia was

MENDEZ-GARCIA V. LYNCH 9

again arrested for a domestic dispute and pled nolo

contendere to one count of domestic battery, see Cal. Penal

Code § 243(e)(1), and one count of false imprisonment, see

id. § 236. He was sentenced to 120 days in jail.

As a result of his conviction, Mendez-Garcia came to the

attention of the Department of Homeland Security, which

served him with a notice to appear on January 13, 2009. At

an initial hearing on January 29, 2009, Mendez-Garcia

requested that the hearing be postponed; the Immigration

Court set a new hearing date in February. At the February

hearing, Mendez-Garcia requested another postponement; the

court set a third hearing date in March, which was

rescheduled to April. Before this hearing, Mendez-Garcia

moved to change venue from Phoenix, Arizona, to San

Francisco, California. The motion was granted, and a hearing

date was set for August 6, 2009.

Mendez-Garcia moved for a continuance until September

2009, and a hearing date was eventually set for October 1,

2009. At the hearing, the IJ set a December 30, 2009,

deadline to apply for cancellation of removal and scheduled

a merits hearing for January 19, 2011. Mendez-Garcia timely

filed his application on December 16, 2009, but the merits

hearing date was reset twice for reasons not explained in the

record, first to February 6, 2012, and then to March 1, 2013.

At the scheduled hearing date in March 2013, the IJ held

removal proceedings in Mendez-Garcia’s case. After hearing

testimony from Mendez-Garcia (who was represented by

counsel) and reviewing the record, the IJ informed the

attorneys that she had all the evidence she needed to make a

decision, but because the annual limit on grants of

cancellation of removal, see 8 U.S.C. § 1229b(e)(1), had

10 MENDEZ-GARCIA V. LYNCH

already been reached for the fiscal year, she was required by

regulation, see 8 C.F.R. § 1240.21(c)(1), to reserve her

decision until additional grants became available, which

would likely be in October 2013. The IJ noted that Mendez-

Garcia’s younger son, his one remaining qualifying relative,

would turn 21 before that date, and invited the parties to brief

the issue whether the son’s age should be counted at the time

the record was closed or at the time the IJ’s decision was

made. Neither party filed a legal brief on this issue.

The IJ issued an oral decision in Mendez-Garcia’s case on

October 23, 2013. She noted that Mendez-Garcia’s

application was “a borderline case, with regard to both good

moral character and exceptional and extremely unusual

hardship,” reasoning that Mendez-Garcia’s 2008 domestic-

violence conviction, to the extent it was not a per se

disqualifying conviction under § 1229b(b)(1)(C), “may

impugn [his] good moral character,” and that the potential

hardship to Mendez-Garcia’s son was “extremely poorly

documented.” But because Mendez-Garcia’s son had turned

21 on March 12, 2013, the IJ concluded that she need not

determine whether Mendez-Garcia had established good

moral character or whether his removal would “result in

exceptional and extremely unusual hardship” to his son.

§ 1229b(b)(1)(D). Rather, the IJ determined that under

Isidro-Zamorano, she was bound by the evidence as it existed

at the time of her decision, and Mendez-Garcia was not

eligible for cancellation of removal because he lacked a

qualifying relative.

Mendez-Garcia appealed to the BIA. The BIA dismissed

his appeal on June 5, 2015, holding that the IJ properly

applied Isidro-Zamorano in ruling that Mendez-Garcia’s son

no longer met the statutory definition of “child” because he

MENDEZ-GARCIA V. LYNCH 11

had turned 21 before the IJ adjudicated his application. The

BIA acknowledged that the IJ had closed the record on March

1, 2013 (before Mendez-Garcia’s younger U.S. citizen child

had turned 21), but concluded that this distinction from

Isidro-Zamorano was not meaningful. Mendez-Garcia timely

petitioned for review.

B

Mario Rivera-Baltazar is a citizen of Mexico who

illegally entered the United States in 1986 and has resided in

the United States continuously since then. While residing in

the United States, his son was born on August 14, 1990, in

California. In March 1996, Rivera-Baltazar was convicted of

willful infliction of corporal injury upon a spouse or

cohabitant. See Cal. Penal Code § 273.5.

Rivera-Baltazar was served with a notice to appear on

January 7, 2005. On February 16, 2005, he filed a motion to

change venue from Phoenix, Arizona, to San Diego,

California, conceded removability, and stated his intention to

seek cancellation of removal. After transferring venue, the IJ

held an initial hearing on June 7, 2005. At that hearing,

Rivera-Baltazar’s counsel indicated that he was not yet

prepared to go forward. The IJ set a second hearing for

October 5, 2005.

At the October hearing, the government argued that

Rivera-Baltazar was not eligible for cancellation of removal

because his prior conviction rendered him ineligible. In

support of this argument, the government introduced a

criminal history transcript from the California Department of

Justice showing Rivera-Baltazar’s prior conviction. Rivera-

Baltazar asked for a continuance to prepare a response to that

12 MENDEZ-GARCIA V. LYNCH

exhibit. At a third hearing, on December 13, 2005, the IJ

overruled Rivera-Baltazar’s objection to the government’s

exhibit, found him ineligible for cancellation of removal, and

granted voluntary departure.

Rivera-Baltazar appealed to the BIA. After granting

Rivera-Baltazar’s request for an extension of the briefing

schedule, the BIA rejected his appeal on August 15, 2006.

Rivera-Baltazar moved the BIA to reopen the case on

November 2, 2006, but the BIA denied the motion on January

11, 2007, in part because the motion was untimely. Rivera-

Baltazar petitioned for review of both the BIA’s merits

decision and its denial of his subsequent motion to reopen.

While his petitions for review were pending before us,

Rivera-Baltazar moved to extend his time to file his opening

brief. We granted the extension and consolidated his

petitions. Shortly thereafter, the BIA issued a precedential

decision holding that convictions entered prior to September

30, 1996, did not preclude eligibility for cancellation of

removal, see Matter of Gonzalez-Silva, 24 I. & N. Dec. 218

(BIA 2007). Because Rivera-Baltazar had been convicted of

infliction of corporal injury in March 1996, the government

moved to remand the case. We granted the unopposed

motion and remanded the case to the BIA on December 6,

2007.

There the case languished until June 7, 2010, when the

government filed a request for decision with the BIA. After

receiving this request, the BIA set a briefing schedule, and

ordered the parties to make their submissions by October 21,

2010. The government moved to remand at that time, but

Rivera-Baltazar sought and received an extension until

November 11, 2010. Following the government’s lead,

MENDEZ-GARCIA V. LYNCH 13

Rivera-Baltazar filed an unopposed motion to remand the

case to the IJ on November 4, 2010.

On remand from the BIA, the IJ held a hearing on May

26, 2011, and at that hearing set an application deadline of

November 22, 2011, and the next hearing date for May 16,

2012. Rivera-Baltazar raised no objection to this schedule at

the hearing, and subsequently requested an extension of the

application deadline to December 22, 2011. This extension

was granted, and Rivera-Baltazar timely filed his application

for cancellation of removal on December 22, 2011.

On August 14, 2011, while Rivera-Baltazar’s case was

pending, his son turned 21. On May 16, 2012, the IJ issued

its decision on Rivera-Baltazar’s application, holding that

because Rivera-Baltazar’s son was no longer a child for

purposes of § 1229b(b)(1)(D) and he had no other qualifying

relative for cancellation purposes, he was not eligible for

relief. The IJ denied his application for cancellation of

removal and granted voluntary departure.

Rivera-Baltazar appealed to the BIA, which dismissed his

appeal on August 13, 2013. As in Mendez-Garcia’s case, the

BIA held that the IJ properly applied Isidro-Zamorano in

ruling that Rivera-Baltazar’s son no longer met the statutory

definition of “child” at the time of the IJ’s decision. Rivera-

Baltazar timely petitioned for review.

III

We start with the petitioners’ argument that the IJ and

BIA erred in holding they were not eligible for cancellation

of removal under § 1229b(b)(1) because the BIA’s

interpretation of that statute in Isidro-Zamorano was

14 MENDEZ-GARCIA V. LYNCH

erroneous and inapplicable to their cases. We review legal

questions de novo, but when “there is ‘binding agency

precedent on-point’ in the form of a published BIA opinion,”

we consider whether Chevron deference is appropriate.

Valenzuela Gallardo v. Lynch, 818 F.3d 808, 813, 815 (9th

Cir. 2016) (citing Chevron U.S.A. Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984)). “Under the familiar

Chevron framework, we first ask ‘whether Congress has

directly spoken to the precise question at issue.’” Id. at 815

(quoting Chevron, 467 U.S. at 842). If Congress has directly

spoken to the precise question at issue, we “must give effect

to the unambiguously expressed intent of Congress.” Garcia-

Mendez v. Lynch, 788 F.3d 1058, 1061 (9th Cir. 2015) (citing

Chevron, 467 U.S. at 842–43). If Congress has not so

spoken, we proceed to step two, at which we will uphold the

agency’s interpretation as long as it is “based on a

permissible construction of the statute.” Valenzuela

Gallardo, 818 F.3d at 815.

A

In addressing the petitioners’ argument that the BIA’s

interpretation of § 1229b(b)(1)(D) is erroneous, we start with

the plain language of the statute. In order to be eligible for

cancellation of removal, the alien must meet the four different

requirements set forth in § 1229b(b)(1)(A) to (D). Section

1229b(b)(1)(A) expressly includes a time frame: it requires

the alien to establish that the alien “has been physically

present in the United States for a continuous period of not

less than 10 years immediately preceding the date” of the

MENDEZ-GARCIA V. LYNCH 15

application for cancellation of removal.3 However, the

requirement at issue here, § 1229b(b)(1)(D), includes no such

time frame. It says only that the alien must establish “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 residence”; it does not specify that the alien must

meet the requirement as of a certain time. Because the statute

does not directly address the question before us here, we turn

to step two of Chevron.

At step two, we consider whether the BIA’s interpretation

is “based on a permissible construction of the statute.”

Valenzuela Gallardo, 818 F.3d at 815. At this step, we

conclude that the BIA could reasonably determine that

§ 1229b(b)(1)(D) requires an alien seeking cancellation to

establish hardship to a qualifying relative as of the time the IJ

adjudicates the alien’s application. The BIA’s interpretation

is consistent with the language of the statute. Moreover, the

BIA could reasonably determine that because Congress did

not specify a time frame in § 1229b(b)(1)(D), as it did in

§ 1229b(b)(1)(A), Congress intended the alien to make the

3

Although § 1229b(b)(1)(B) requires the alien to establish that the

alien “has been a person of good moral character during such period,” the

BIA has determined that the IJ should determine the issue of good moral

character as of the time the IJ renders a decision on the application for

cancellation of removal. See Matter of Ortega-Cabrera, 23 I. & N. Dec

793 (BIA 2005). We applied this rule in Castillo-Cruz v. Holder,

581 F.3d 1154 (9th Cir. 2009). But see Aragon-Salazar v. Holder,

769 F.3d 699, 704, 706 n.4 (9th Cir. 2014) (stating that it was not “bound

by this unreasoned conclusion” in Castillo-Cruz, and holding that identical

language in section 203(1)(A)(iii) of the Nicaraguan Adjustment and

Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160,

2193–2201 (1997), “clearly refers back to the period of time for which

continuous physical presence is required”).

16 MENDEZ-GARCIA V. LYNCH

showing of a hardship to a qualifying relative at the time of

the IJ’s decision.

In opposing this conclusion, Mendez-Garcia and Rivera-

Baltazar contend that the BIA’s interpretation is not

reasonable because it is inconsistent with § 1229b(b)(1)(A),

which requires a showing that the alien “has been physically

present in the United States for a continuous period of not

less than 10 years immediately preceding the date of such

application.” The petitioners argue that if an application for

cancellation of removal were a continuing application, as the

BIA concluded, then an alien should continue to accrue

physical presence until the application was adjudicated.

According to the petitioners, because § 1229b(b)(1)(A)

requires the IJ to consider a specified time frame (ending at

the application date) for purposes of determining physical

presence, the application for cancellation of removal is not a

continuing application, and the IJ should likewise determine

whether the alien has a qualifying relative at a prior time.

This argument fails, because the requirement that an alien

show continuous presence in the United States for “10 years

immediately preceding the date” of an application for

cancellation of removal, § 1229b(b)(1)(A), is distinct from

the hardship requirement of § 1229b(b)(1)(D). “[W]here

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Andreiu v.

Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001) (en banc)

(alteration in original). The presence of a timing requirement

in § 1229b(b)(1)(A) — and its corresponding absence in

§ 1229b(b)(1)(D) — does not foreclose the BIA’s

interpretation, but rather bolsters it.

MENDEZ-GARCIA V. LYNCH 17

Because the BIA offered a reasonable interpretation of

§ 1229b, the IJ in each case did not err in considering whether

Mendez-Garcia and Rivera-Baltazar had a qualifying relative

for purposes of the hardship requirement as of the time of the

decision on the application for cancellation of removal.

B

Mendez-Garcia and Rivera-Baltazar also argue that the

BIA’s interpretation of § 1229b(b)(1)(D) does not apply to

their cases because their cases are factually distinguishable

from Isidro-Zamorano. We reject this argument. When an

agency validly interprets a statute, that interpretation carries

the “force of law.” See Garcia v. Holder, 659 F.3d 1261,

1266 (9th Cir. 2011). Statutory interpretations offered by an

agency through adjudication are not limited to the factual

circumstances out of which that adjudication arose. “[A]n

agency ‘is not precluded from announcing new principles in

an adjudicative proceeding and . . . the choice between

rulemaking and adjudication lies in the first instance within

the [agency’s] discretion.’” Miguel-Miguel v. Gonzales,

500 F.3d 941, 950 (9th Cir. 2007) (omission and second

alteration in original) (quoting NLRB v. Bell Aerospace Co.,

416 U.S. 267, 294 (1974)). Even assuming that Isidro-

Zamorano and the precedents on which it relies are factually

distinguishable from the situations here, the BIA’s

interpretation of the hardship requirement in

§ 1229b(b)(1)(D) would nonetheless be binding. See Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 983 (2005) (“[T]he agency remains the

authoritative interpreter (within the limits of reason) of

[ambiguous] statutes.”).

18 MENDEZ-GARCIA V. LYNCH

C

Finally, Mendez-Garcia and Rivera-Baltazar argue that

the BIA erred in interpreting the word “child” in

§ 1229b(b)(1)(D) according to the statutory definition of

“child” in § 1101(b)(1), rather than using the dictionary

definition of child as “son or daughter.” We disagree.

“[W]hen a statute includes an explicit definition, we must

follow that definition, even if it varies from that term’s

ordinary meaning.” Chubb Custom Ins. Co. v. Space

Sys./Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013) (quoting

Stenberg v. Carhart, 530 U.S. 914, 942 (2000)). Because

8 U.S.C. § 1101(b)(1) includes an “explicit definition” of the

term “child,” the statutory definition controls. See, e.g.,

Moreno-Morante v. Gonzales, 490 F.3d 1172, 1178 (9th Cir.

2007) (“[C]ancellation of removal is appropriate only if the

detailed statutory definition of ‘child’ is met.”).

IV

Mendez-Garcia and Rivera-Baltazar next argue that the

decisionmaking processes in their cases violated their due

process rights. “It is well established that the Fifth

Amendment entitles aliens to due process of law in

deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306

(1993). “A full and fair hearing is one of the due process

rights afforded to aliens in deportation proceedings.”

Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). An

alien’s right to procedural due process is violated “only if [1]

the proceeding was ‘so fundamentally unfair that the alien

was prevented from reasonably presenting his case,’” and [2]

the alien proves that “the alleged violation prejudiced his or

her interests.” Id. (quoting Ibarra-Flores v. Gonzales,

439 F.3d 614, 620 (9th Cir. 2006)). While aliens are entitled

MENDEZ-GARCIA V. LYNCH 19

to a procedurally fair hearing, “aliens have no fundamental

right to discretionary relief from removal for purposes of due

process and equal protection” because such relief is “a

privilege created by Congress.” Tovar-Landin v. Ashcroft,

361 F.3d 1164, 1167 (9th Cir. 2004). Denial of such

discretionary relief “cannot violate a substantive interest

protected by the Due Process clause.” Munoz v. Ashcroft,

339 F.3d 950, 954 (9th Cir. 2003). Because “[c]ancellation

of removal is a form of discretionary relief which does not

give rise to a ‘substantive interest protected by the Due

Process Clause,’” Hyuk Joon Lim v. Holder, 710 F.3d 1074,

1076 (9th Cir. 2013) (quoting Munoz, 339 F.3d at 954), its

denial likewise does not deprive an applicant of a

constitutionally protected liberty or property interest.

The petitioners argue that their due process rights were

violated because the application of Isidro-Zamorano coupled

with the failure of the agency to adjudicate their cancellation

of removal applications before their sons became 21 was

procedurally unfair and deprived them of a substantive

interest, their “settled expectations” in receiving relief. We

consider their arguments in turn.

A

The petitioners first argue that the proceedings were

procedurally unfair because they were deprived of the

opportunity to have their applications for cancellation of

removal adjudicated at a time when they would have had a

meaningful opportunity for relief. Mendez-Garcia argues that

because he had qualifying relatives at the time he filed his

application for cancellation of removal in 2009, the fact that

his application was not adjudicated until October 2013

“prevented [him] from reasonably presenting his relief

20 MENDEZ-GARCIA V. LYNCH

application.” Similarly, Rivera-Baltazar argues that his son

had five years of eligibility as a qualifying relative remaining

at the time he applied for cancellation of removal, and that

the lack of “an expedited review” in 2011 on remand from the

BIA was “fundamentally unfair” and amounted to an

“inequitable process.”

We disagree. First, procedural delays, such as routine

processing delays, do not deprive aliens of a substantive

liberty or property interest unless the aliens have a “legitimate

claim of entitlement” to have their applications adjudicated

within a specified time. Ruiz-Diaz v. United States, 703 F.3d

483, 487 (9th Cir. 2012) (quoting Bd. of Regents v. Roth,

408 U.S. 564, 577 (1972)). In Ruiz-Diaz, we considered a

regulation that barred a category of aliens, including religious

workers, from filing an application for adjustment of status

under 8 U.S.C. § 1255(a) concurrently with a visa petition

from a sponsoring employer. This category of aliens had to

wait for approval of their employers’ petitions before they

could seek adjustment of status. Because of the delays

inherent in acquiring approval of a visa petition, aliens

subject to this regulation could be deprived of relief if their

visas expired before their adjustment applications were

adjudicated. A group of aliens lawfully present in the United

States on five-year religious-worker visas brought suit against

the government, asserting that the regulation, coupled with

the processing delays, violated their due process rights. Id.

We acknowledged that the delays “often mean that their five-

year visas have expired before” their applications could be

considered, which “makes it more difficult for plaintiffs to

obtain” the relief they sought. Id. at 487–88. Nonetheless,

we held that the aliens could not claim that their due process

rights were violated because they had not identified a

“‘legitimate claim of entitlement’ to have the petitions

MENDEZ-GARCIA V. LYNCH 21

approved before their visas expire.” Id. at 487 (quoting Roth,

408 U.S. at 577); see also Mudric v. Attorney Gen., 469 F.3d

94, 99 (3d Cir. 2006) (holding that an eight-year delay in the

processing of an alien’s application for asylum did not violate

his due process rights “because [the alien] simply had no due

process entitlement to the wholly discretionary benefits of

which he and his mother were allegedly deprived, much less

a constitutional right to have them doled out as quickly as he

desired”). Here, Mendez-Garcia and Rivera Baltazar likewise

lack any legitimate claim of entitlement to having their

applications adjudicated before their sons turned 21. No

statute or regulation requires the government to take action on

their applications within a set period, nor does cancellation of

removal “give rise to a ‘substantive interest protected by the

Due Process Clause.’” Hyuk Joon Lim, 710 F.3d at 1076

(quoting Munoz, 339 F.3d at 954). Therefore, the denial of

their cancellation of removal applications due to the lack of

a qualifying relative at the time of the IJ’s final decision did

not deprive them of a substantive right.

Nor did the agency’s delays violate Mendez-Garcia’s and

Rivera-Baltazar’s procedural due process rights by preventing

them from reasonably presenting their cases at a meaningful

time. Cf. Singh v. Reno, 182 F.3d 504 (7th Cir. 1999). In

Singh, the Immigration and Naturalization Service (INS)

“continued to drag its feet” in setting hearing dates and

repeatedly canceled hearing dates over a four-year period,

despite the alien’s diligent efforts to have his hearing

recalendared. Id. at 507. Only after Congress enacted a

statute that retroactively eliminated any possibility of relief

for that alien did the INS set a hearing date and summarily

conclude that he was deportable. Id. at 510. While

acknowledging that an alien generally “has no substantive

right to have a claim heard at a particular time,” the Seventh

22 MENDEZ-GARCIA V. LYNCH

Circuit held that under “the very unusual circumstance” when

the alien, rather than the agency, pressed for a speedier

resolution of his status, the alien had sufficiently raised a

claim that his due process rights had been violated to allow

him the “exceptional procedure” of “direct review of

constitutional claims in the court of appeals.” Id.

Even assuming that extraordinary delays caused by the

agency could give rise to a constitutional claim, there were no

such “very unusual circumstance[s]” in these cases. Neither

Mendez-Garcia nor Rivera-Baltazar contend that the delays

in their cases result from anything other than “routine

processing times,” Ruiz-Diaz, 703 F.3d at 487, and neither

took action to increase the likelihood that their applications

would be adjudicated before their sons turned 21, cf. Singh,

182 F.3d at 511 (finding “of crucial significance” that “it was

[the alien] who pressed to have the matter resolved”). Indeed,

Mendez-Garcia sought to postpone the adjudication of his

application three times before his younger U.S. citizen child

turned 21. Even when the IJ brought to Mendez-Garcia’s

attention the imminence of his child’s twenty-first birthday

and offered him the opportunity to submit supplemental

briefing on the issue, he did not do so. Similarly, Rivera-

Baltazar did not act when we remanded his case to the BIA in

2007; the BIA ultimately took action only after the

government (not Rivera-Baltazar) filed a request for decision.

Rather than seeking to expedite the adjudication of his

application, Rivera-Baltazar sought to postpone it four times

before his child turned 21. We conclude that the

decisionmaking process here did not violate Mendez-Garcia’s

and Rivera-Baltazar’s due process rights.

MENDEZ-GARCIA V. LYNCH 23

B

Mendez-Garcia and Rivera-Baltazar also argue that their

due process rights were violated because they had “settled

expectations” that they could apply for and receive

cancellation of removal, and these settled expectations were

upset by the change in the status of their qualifying relatives.

In making this argument, Mendez-Garcia and Rivera-Baltazar

analogize to INS v. St. Cyr, 533 U.S. 289 (2001), which

considered the retroactive effect of section 304 of the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546,

3009-587–3009-597.

In order to analyze the strength of this analogy, we briefly

summarize the relevant facts and conclusion in St. Cyr. As

the Supreme Court explained, section 304 eliminated

8 U.S.C. § 1182(c), which gave the Attorney General broad

discretion to waive deportation of aliens who had prior

criminal convictions, and replaced it with § 1229b, which

accorded much narrower discretion to the Attorney General

to cancel removal of certain aliens, but not of aliens who

had been convicted of an aggravated felony, see

§ 1229b(b)(1)(C). Prior to IIRIRA’s effective date, the alien

in St. Cyr had pled guilty to sale of a controlled substance.

He became deportable as a result of the conviction, but he

also preserved his eligibility for waiver of deportation relief

under § 1182(c) by pleading guilty. 533 U.S. at 293.

IIRIRA, which took effect before his application for

§ 1182(c) relief was adjudicated, id., made his crime an

aggravated felony and thus made him statutorily ineligible for

cancellation of removal, id. at 297. The alien argued that

because he had pled guilty in reliance on pre-IIRIRA law,

applying IIRIRA to deny his application for relief was

24 MENDEZ-GARCIA V. LYNCH

impermissibly retroactive. Id. at 314–15. The Supreme

Court agreed. Applying the two-step analysis of Landgraf v.

USI Film Products, 511 U.S. 244 (1994), the Court first held

that IIRIRA did not contain an “unambiguous direction”

demanding retroactive application, St. Cyr, 533 U.S. at 316,

320. It then determined that because aliens who had pled

guilty “waive[d] several of their constitutional rights” in

exchange for preserving their eligibility for § 1182(c) relief,

applying IIRIRA retroactively to deny those aliens the

possibility of relief for which they had bargained would

impermissibly impair “vested rights acquired under existing

laws . . . in respect to transactions or considerations already

past.” Id. at 321–22.

As this summary makes clear, St. Cyr is not applicable

here. Landgraf emphasized that “[t]he Due Process Clause

. . . protects the interests in fair notice and repose that may be

compromised by retroactive legislation,” 511 U.S. at 266, and

St. Cyr accordingly discusses “settled expectations” as they

related to retroactive application of IIRIRA, see 533 U.S. at

323–24. Mendez-Garcia and Rivera-Baltazar do not point to

any legislative change; there was no amendment to the

cancellation of removal statute or other legislation that could

raise due process concerns under Landgraf and St. Cyr.

Whereas St. Cyr indicated that it is sometimes impermissible

to apply new law to “transactions or considerations already

past,” id. at 321, nothing in St. Cyr suggests that it is

impermissible to apply unchanged law to a current factual

situation as it has changed or developed over time. Further,

St. Cyr made clear that “settled expectations” result only

when an alien gives up “valuable legal rights.” Jimenez-

Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002)

(quoting St. Cyr, 533 U.S. at 321). Mendez-Garcia and

Rivera-Baltazar gave up no such legal rights in applying for

MENDEZ-GARCIA V. LYNCH 25

cancellation of removal. Cf. id. (finding that alien who had

turned herself into the INS “gave up only her ability to

continue living illegally and undetected in the United States,”

and not any valuable legal rights). Nor can Mendez-Garcia

and Rivera-Baltazar claim they lacked notice that their

children would grow up. Accordingly, we reject Mendez-

Garcia and Rivera-Baltazar’s claim that they have a due

process right to have their applications adjudicated in light of

historical facts.

C

Mendez-Garcia raises one additional argument that his

due process rights were violated by the proceedings.4

According to Mendez-Garcia, the application of the statutory

cap on grants of cancellation of removal, § 1229b(e), violated

his due process right to a “fundamentally fair proceeding”

because it was unfair for the IJ to close his proceedings,

despite having everything she needed to make a decision, and

such unfairness was prejudicial in that his son ceased being

a qualifying relative soon after.

To the extent Mendez-Garcia is challenging Congress’s

authority to enact a statutory cap on relief from deportation,

we reject the argument. “‘[O]ver no conceivable subject is the

4

In a letter submitted the day before oral argument under Federal

Rule of Appellate Procedure 28(j), Mendez-Garcia raised the additional

argument that the government’s implementation of the statutory cap

violates his equal protection rights because it treats non-detained

applicants for cancellation of removal and detained applicants differently.

Because Mendez-Garcia did not raise this argument in his opening brief,

we deem this issue waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3

(9th Cir. 2011). We accordingly deny Mendez-Garcia’s pending motion

for leave to exceed the word limit on Rule 28(j) letters as moot.

26 MENDEZ-GARCIA V. LYNCH

legislative power of Congress more complete than it is over’

the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792

(1977). “Congress has plenary power to regulate immigration

and the conditions on which aliens remain in the United

States.” Korab v. Fink, 797 F.3d 572, 574 (9th Cir. 2014).

When Congress acts in the immigration context, the resulting

legislation need “meet only ‘the (unexacting) standard of

rationally advancing some legitimate governmental

purpose.’” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 788

(9th Cir. 2014) (en banc) (quoting Flores, 507 U.S. at 306).

A statutory cap on grants of cancellation of removal is

rational; Congress could have concluded, for example, that

immigration benefits should generally be reserved for aliens

who are not otherwise removable. Moreover, limiting the

number of otherwise-removable aliens who are permitted to

remain in the United States is a legitimate governmental

purpose, one that the statutory cap rationally advances.

Nor did the application of the cap to Mendez-Garcia

violate his due process rights. In order to assert a due process

challenge to such a condition of relief, an alien must establish

a “qualifying liberty interest of which he was deprived.”

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th

Cir. 2002) (citing Mathews v. Eldridge, 424 U.S. 319, 332

(1976)). Mendez-Garcia has no such liberty interest.

Discretionary immigration relief gives rise to no “substantive

interest protected by the Due Process Clause.” Hyuk Joon

Lim, 710 F.3d at 1076. Nor did Congress provide aliens with

such an interest. When cancellation of removal was

established as a form of relief under IIRIRA, Congress

circumscribed its availability not only by specifying the four

requirements that an alien must satisfy but also by including

the statutory cap. See IIRIRA § 304(a), Pub. L. No. 104-208,

110 Stat. at 3009-594, 3009-596. Thus, “the very liberty

MENDEZ-GARCIA V. LYNCH 27

interest [Mendez-Garcia] asserts to have been taken away” by

the statutory cap, his ability to receive cancellation of

removal,“was granted by [the] same statute” that instituted

the cap — IIRIRA section 304. Hernandez-Mezquita,

293 F.3d at 1165. Though the statutory cap may have

deprived Mendez-Garcia of the ability to receive cancellation

of removal relief, the right to receive that relief unrestricted

by the cap was “a right he never had.” Id. This due process

challenge, too, fails.

PETITIONS DENIED.

WATFORD, Circuit Judge, concurring:

I join the court’s opinion because it correctly resolves the

two cases before us. I write separately to emphasize that, for

me at least, the dispositive factor in denying relief on the

petitioners’ procedural due process claim is their lack of

diligence in pressing for expedited review.

The petitioners’ due process claim arises from delays in

the processing of their applications for cancellation of

removal based on hardship to their U.S. citizen children. See

8 U.S.C. § 1229b(b)(1)(D). Delay can be fatal to these

applications because, under the rule adopted by the Board of

Immigration Appeals (BIA), an applicant loses eligibility for

this relief if his child turns 21 before the agency has made a

decision on the application. See Matter of Isidro-Zamorano,

25 I. & N. Dec. 829, 831 (BIA 2012). The consequences for

those who lose their eligibility are severe: An applicant

granted cancellation of removal attains the status of a lawful

permanent resident, a status he keeps even after his U.S.

28 MENDEZ-GARCIA V. LYNCH

citizen child turns 21, whereas an applicant denied such relief

is subject to removal from the United States and often

barred from returning for ten years. See 8 U.S.C.

§§ 1182(a)(9)(B)(i)(II), 1229b(b)(1).

As the court acknowledges, an arbitrary and unjustified

delay in processing an application for cancellation of removal

can serve as the basis for a successful due process claim,

provided the applicant has been diligent throughout in urging

the agency to reach a decision before his child turns 21. The

petitioners before us cannot establish a violation of their due

process rights because they were not diligent in pressing for

expedited review of their applications. Had they been

diligent in doing so, however, they might well have been

entitled to prevail.

Take Mario Rivera-Baltazar’s case. The immigration

judge who initially ruled on his application denied it on an

erroneous legal ground, and our court subsequently remanded

the case to the BIA for further proceedings. At that point,

Rivera-Baltazar’s U.S. citizen son was 17 years old, so there

was plenty of time left for his application to be considered.

Because the immigration judge did not reach the merits of

Rivera-Baltazar’s application during the initial round of

proceedings, his case necessarily had to be remanded back to

the immigration judge. Yet the BIA sat on his case for three

years and did nothing. Unlike my colleagues, I do not think

we can characterize that as a routine processing delay

(particularly for such a ministerial task), and as far as the

record discloses there was absolutely no justification for it.

The problem for Rivera-Baltazar is that he did nothing

during that entire three-year period of delay to try to expedite

review of his application. As the court notes, it was the

MENDEZ-GARCIA V. LYNCH 29

government’s action after nearly three years of unexplained

delay that finally prompted the BIA to do what it should have

done right away: remand the case back to the immigration

judge. Had Rivera-Baltazar been diligent in urging the BIA

to remand his case forthwith, and had he lost his eligibility

for cancellation of removal due to the unjustified delay, what

more could be required to assert a meritorious due process

claim?

The protections of the Due Process Clause are vital in

cases like these because there is enormous potential for

arbitrariness and hence unfairness under the rule adopted by

the BIA. Under that rule, an applicant’s eligibility for relief

can be foreclosed by administrative delays that are wholly

outside the applicant’s control and that have nothing to do

with the merits of the application. The potential for

arbitrariness is heightened in the cancellation of removal

context because a person eligible for such relief may not

affirmatively apply for it—she may request it only after the

government decides to initiate removal proceedings by

serving her with a notice to appear. So from the outset the

applicant cannot control how old her U.S. citizen child may

be at the time her application is filed, and she of course has

no ability to stop the clock from ticking as her child

approaches the age of 21. When an applicant does everything

in her power to ensure that the agency can adjudicate her

application for cancellation of removal while her U.S. citizen

child is still under 21, the agency cannot simply allow the

application to languish for years without justification such

that the child ages out before a decision can be rendered.

Due process guarantees “a full and fair hearing” in

immigration proceedings. Colmenar v. INS, 210 F.3d 967,

971 (9th Cir. 2000). A hearing for relief surely cannot be

30 MENDEZ-GARCIA V. LYNCH

considered full and fair if the adjudicator arbitrarily and

unjustifiably withholds a decision until a time when the relief

is no longer available. See Singh v. Reno, 182 F.3d 504, 510

(7th Cir. 1999).