Manuel Hernandez v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL ANTONIO HERNANDEZ, No. 20-70158

AKA Manuel Antonio Hernandez,

Petitioner, Agency No.

A073-897-003

v.

MERRICK B. GARLAND, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 14, 2022

San Francisco, California

Filed June 27, 2022

Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit

Judges, and Christina Reiss, * District Judge.

Opinion by Judge Reiss

*

The Honorable Christina Reiss, United States District Judge for the

District of Vermont, sitting by designation.

2 HERNANDEZ V. GARLAND

SUMMARY **

Immigration

Denying Manuel Antonio Hernandez’s petition for

review of a decision by the Board of Immigration Appeals

(“BIA”), the panel held that Hernandez’s previous grant of

special rule cancellation of removal and adjustment of status

to lawful permanent resident under section 203 of the

Nicaraguan Adjustment and Central American Relief Act

(“NACARA”) qualified as a cancellation of removal under

8 U.S.C. § 1229b, thus rendering him ineligible for a second

grant of cancellation of removal pursuant to 8 U.S.C.

§ 1229b(c)(6).

Hernandez first argued that § 1229b(c)(6)’s bar did not

apply to him because at the time he applied for and was

granted NACARA special rule cancellation of removal, he

had not been served a Notice to Appear, appeared before an

IJ, or had a final finding of removability entered against him,

and thus there was no removal to be cancelled. The panel

rejected this argument explaining that nothing in § 1229b or

NACARA requires removal proceedings to be initiated or

finalized as a precondition to cancellation.

The panel next rejected Hernandez’s argument that he

previously received only an adjustment of status, and not

cancellation of removal, concluding that a plain reading of

NACARA § 203 indicates a clear intent by Congress that

adjustment of status occurs if, and only if, cancellation of

removal is granted.

**

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

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

HERNANDEZ V. GARLAND 3

The panel also rejected Hernandez’s argument that

§ 1229b is merely a procedural vehicle through which

NACARA § 203(b) relief is granted, explaining that

NACARA incorporates substantive provisions of § 1229b as

well.

Finally, the panel wrote that even assuming arguendo

that it is ambiguous whether special rule cancellation of

removal under NACARA bars subsequent cancellation of

removal under § 1229b(c)(6), the BIA’s unpublished

decision in this case was entitled to Skidmore deference.

COUNSEL

Camille Wyss and Chelsea Muir (argued), Certified Law

Students; Judah Lakin (argued) and Amalia Wille,

Supervising Attorneys; University of California, Berkeley

School of Law, Berkeley, California; for Petitioner.

Liza S. Murcia (argued), Attorney; Abigail E. Leach, Trial

Attorney; Jeffery R. Leist, Senior Litigation Counsel;

Anthony C. Payne, Assistant Director; Brian M. Boynton,

Acting Assistant Attorney General; Office of Immigration

Litigation, Civil Division, United States Department of

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

4 HERNANDEZ V. GARLAND

OPINION

REISS, District Judge:

Petitioner Manuel Antonio Hernandez, a native and

citizen of El Salvador, petitions for review of a decision by

the Board of Immigration Appeals (“BIA”) dismissing his

appeal of the Immigration Judge’s (“IJ”) decision

pretermitting his application for cancellation of removal

under 8 U.S.C. § 1229b(a).

In 2002, Petitioner was granted special rule cancellation

of removal and adjustment of status to lawful permanent

resident under section 203 of the Nicaraguan Adjustment

and Central American Relief Act (“NACARA”). 1 In 2015,

following Petitioner’s conviction for possession of a

controlled substance under California law, removal

proceedings were instituted against him and the IJ found him

removable as charged. Petitioner applied for cancellation of

removal under 8 U.S.C. § 1229b(a). The IJ found, and the

BIA affirmed, that Petitioner was ineligible for cancellation

of removal because his “removal ha[d] previously been

cancelled under this section.” 8 U.S.C. § 1229b(c)(6).

Petitioner timely petitioned for review.

This appeal presents a question of statutory

interpretation: Is a cancellation of removal under NACARA

§ 203 a cancellation of removal under 8 U.S.C. § 1229b?

Because a plain reading of the relevant statutes establishes

that it is, we deny the petition.

1

Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2198 (1997),

amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997).

HERNANDEZ V. GARLAND 5

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner first came to the United States from El

Salvador in 1993 at age eleven. In 2000, Petitioner filed an

“Application for Suspension of Deportation or Special Rule

Cancellation of Removal (pursuant to [NACARA § 203])”

with the United States Immigration and Naturalization

Service (“INS”). On May 31, 2002, Petitioner appeared

before an asylum officer who granted Petitioner special rule

cancellation and adjustment of status to lawful permanent

resident under NACARA § 203.

On September 3, 2014, in Los Angeles County Superior

Court, Petitioner pled no contest and was convicted of

possession of a controlled substance, methamphetamine, in

violation of California Health and Safety Code § 11377(a).

He was sentenced to a term of probation and ordered to

participate in a drug rehabilitation program, which he

successfully completed.

On May 21, 2015, the United States Department of

Homeland Security (“DHS”) served Petitioner with a Notice

to Appear, charging him with removability because he was

convicted of violating a law “relating to a controlled

substance.” 8 U.S.C. § 1227(a)(2)(B)(i). On June 26, 2015,

after a hearing, the IJ found Petitioner removable as charged.

On August 23, 2016, Petitioner submitted an application

for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).

DHS argued that Petitioner was ineligible for cancellation of

removal because he was previously granted special rule

cancellation of removal under NACARA § 203 and “anyone

granted cancellation cannot get a second grant” under 8

U.S.C. § 1229b(c)(6). The IJ ordered, and the parties

submitted, supplemental briefing on the issue. On March 27,

2018, the IJ denied Petitioner’s request for cancellation of

6 HERNANDEZ V. GARLAND

removal, holding: “As the respondent has already received

special-rule cancellation of removal under [NACARA], he

is statutorily barred under [8 U.S.C. § 1229b(c)(6)] from

reapplying for and receiving cancellation of removal under

[8 U.S.C. § 1229b](a).”

Petitioner timely appealed the IJ’s decision to the BIA,

which dismissed his appeal on December 17, 2019. In doing

so, the BIA noted that Petitioner did not contest “that he was

granted special rule cancellation of removal.” The BIA held

that special rule cancellation “was explicitly made subject to

the provisions of [8 U.S.C. § 1229b],” and therefore the IJ

“correctly found the respondent ineligible for cancellation of

removal.” The BIA rejected Petitioner’s argument that he

was eligible for cancellation of removal because his earlier

cancellation under NACARA was granted administratively

by INS, not by an IJ during removal proceedings.

JURISDICTION AND STANDARD OF REVIEW

In reviewing “any judgment regarding the granting of

relief under . . . [8 U.S.C. §] 1229b,” our jurisdiction is

limited to “review of constitutional claims or questions of

law.” 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D); see also

Monroy v. Lynch, 821 F.3d 1175, 1177 (9th Cir. 2016). “We

review questions of law de novo, except to the extent that

deference is owed to the BIA’s determination of the

governing statutes and regulations.” Aragon-Salazar v.

Holder, 769 F.3d 699, 703 (9th Cir. 2014) (citing Barrios v.

Holder, 581 F.3d 849, 854 (9th Cir. 2009)). “Because the

BIA expressed agreement with the reasoning of the IJ, this

court reviews both the IJ and the BIA’s decisions.” Kumar

v. Holder, 728 F.3d 993, 998 (9th Cir. 2013) (citing Nuru v.

Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005)).

HERNANDEZ V. GARLAND 7

DISCUSSION

Petitioner argues on appeal that the IJ and BIA erred in

finding that his special rule cancellation of removal under

NACARA § 203 triggered 8 U.S.C. § 1229b(c)(6)’s bar on

subsequent cancellation of removal. He asserts he received

only an adjustment of status, not a cancellation of removal

and, in any event, a cancellation of removal under NACARA

is not a cancellation of removal under 8 U.S.C. § 1229b. The

IJ and BIA rejected his arguments.

“[W]hen reviewing the BIA’s interpretation of its

governing statutes,” we apply “the Chevron two-step

framework.” Aragon-Salazar, 769 F.3d at 703 (citing

Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir.

2009) (en banc)); see also Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

“Accordingly, we must first determine whether ‘the intent of

Congress is clear.’” Aragon-Salazar, 769 F.3d at 703

(quoting Chevron, 467 U.S. at 842). “If it is, both [we] and

the agency ‘must give effect to the unambiguously expressed

intent of Congress.’” Id. (alteration in original) (quoting

Marmolejo-Campos, 558 F.3d at 908). “If, however, the

statute is ‘silent or ambiguous,’” we must decide whether to

defer to the BIA’s interpretation. Id. (quoting Chevron,

467 U.S. at 843).

Because the BIA’s decision in this case was unpublished,

Chevron deference is inapplicable, and we instead apply

Skidmore deference. See Marmolejo-Campos, 558 F.3d

at 909. See generally Skidmore v. Swift & Co., 323 U.S. 134

(1944). “Pursuant to Skidmore, a reviewing court may

properly resort to an agency’s interpretations and opinions

for guidance, as they constitute a body of experience and

informed judgment.” Orellana v. Barr, 967 F.3d 927, 934

8 HERNANDEZ V. GARLAND

(9th Cir. 2020) (internal quotation marks omitted) (quoting

Garcia v. Holder, 659 F.3d 1261, 1266–67 (9th Cir. 2011)).

“[W]e begin where all such inquiries must begin: with

the language of the statute itself.” Republic of Sudan v.

Harrison, 139 S. Ct. 1048, 1056 (2019) (internal quotation

marks omitted) (quoting Caraco Pharm. Lab’ys, Ltd. v.

Novo Nordisk A/S, 566 U.S. 399, 412 (2012)). The relevant

section of NACARA is titled “Special Rule for Cancellation

of Removal” and provides that “the Attorney General may,

under section 240A of such Act [i.e., 8 U.S.C. § 1229b],

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 applies for such relief” and meets certain criteria.

NACARA § 203(a)(2) (emphasis supplied). Special rule

cancellation of removal under NACARA is “[s]ubject to the

provisions of the Immigration and Nationality Act . . . other

than subsections b(1), d(1), and (e) of section 240A of such

Act [i.e., 8 U.S.C. § 1229b(b)(1), (d)(1), (e)].” Id. Section

§ 1229b(c)(6)’s statutory bar prohibits “[a]n alien whose

removal has previously been cancelled under this section”

from receiving a second cancellation of removal under

§ 1229b.

We first address Petitioner’s contention that he is not

“[a]n alien whose removal has previously been cancelled,”

8 U.S.C. § 1229b(c)(6), because the “statutory bar only

applies to applicants who have previously been in removal

proceedings.” At the time he applied for and was granted a

special rule cancellation of removal under NACARA,

Petitioner had not been served a Notice to Appear, appeared

before an IJ, or had a final finding of removability entered

against him. Accordingly, he argues “there was no removal

to be cancelled.”

HERNANDEZ V. GARLAND 9

Nothing in 8 U.S.C. § 1229b or NACARA requires

removal proceedings to be initiated or finalized as a

precondition to cancellation. To “cancel” means “to decide

not to conduct or perform (something planned or expected)

usually without expectation of conducting or performing it

at a later time.” Cancel, Merriam-Webster.com Dictionary,

https://www.merriam-webster.com/dictionary/cancel (acces

sed Apr. 14, 2022); see also Cancel, Webster’s Third New

International Dictionary (2002) (defining “cancel” as “to

cease from planning or expecting: call off usu[ally] without

expectation of conducting or performing at a later time”). At

the time he applied for special rule cancellation under

NACARA, Petitioner’s removal was expected and thus

eligible for cancellation within the plain meaning of that

term. 2

Petitioner’s contention that the Attorney General may

both cancel removal and adjust status, but is not “always

required to do both,” has no relevance in his case because he

received both forms of relief. The INS asylum officer’s

“decision” on Petitioner’s NACARA application was

“suspension of deportation or special rule cancellation of

removal and adjustment of status granted.” (Emphasis

supplied) (capitalization omitted).

A plain reading of NACARA § 203 indicates a clear

intent by Congress that adjustment of status occurs if, and

only if, cancellation of removal is granted. Cf. Garcia-

Mendez v. Lynch, 788 F.3d 1058, 1064 (9th Cir. 2015)

2

Under penalty of perjury, Petitioner certified in his NACARA

application that he was “eligible to apply for suspension of deportation

or special rule cancellation of removal under [NACARA]” and

acknowledged that he was “subject to deportation or removal if [his]

application [was] not granted.”

10 HERNANDEZ V. GARLAND

(“Special rule cancellation . . . permits an alien . . . the

opportunity to cancel deportation and automatically become

a lawful permanent resident . . . .” (emphasis supplied)

(citing 8 U.S.C. § 1229b(b)(2))). 3 The Attorney General is

empowered to cancel removal of and adjust the status of an

alien. See Confederated Tribes & Bands of Yakama Nation

v. Yakima County, 963 F.3d 982, 990 (9th Cir. 2020) (noting

“the ordinary meaning of ‘and’ is typically conjunctive”

though it can “take on other meanings in context” (citing

Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141

(2018))), cert. denied, 141 S. Ct. 2464 (2021).

NACARA incorporates 8 U.S.C. § 1229b(b)(3), which

provides that “[w]ith respect to aliens who the Attorney

General adjusts to the status of an alien lawfully admitted for

permanent residence,” the Attorney General is required to

record the date of their lawful admission as “the date of the

Attorney General’s cancellation of removal.” 8 U.S.C.

§ 1229b(b)(3). In Garcia-Mendez, we upheld the BIA’s

interpretation that “‘cancellation of removal and adjustment

of status’ is distinct from mere ‘adjustment of status.’”

788 F.3d at 1064 (quoting Matter of Y-N-P-, 26 I. & N.

Dec. 10, 15 (BIA 2012) (holding that under special rule

cancellation of removal, “lawful permanent resident status is

granted solely as a consequence of the cancellation of

removal”)). “The plain text, the statutory context, and

common sense all lead inescapably and unambiguously to

[the] conclusion” that, under NACARA, cancellation of

3

While Garcia-Mendez concerned special rule cancellation of

removal under 8 U.S.C. § 1229b(b)(2), the relevant statutory language

allowing the Attorney General to “cancel removal of, and adjust to the

status of an alien lawfully admitted for permanent residence, an alien,”

is identical to NACARA § 203.

HERNANDEZ V. GARLAND 11

removal triggers adjustment of status. Pereira v. Sessions,

138 S. Ct. 2105, 2110 (2018).

Petitioner fares no better with his claim that a special rule

cancellation of removal under NACARA § 203 is not a

cancellation “under this section [i.e., 8 U.S.C. § 1229b].”

8 U.S.C. § 1229b(c)(6). He argues that § 1229b is merely a

“procedural vehicle through which NACARA § 203(b)

relief is granted,” but NACARA incorporates the substantive

provisions of § 1229b as well, with limited exceptions. Both

NACARA and § 1229b are part of the same statutory

framework, which we must interpret “as a symmetrical and

coherent regulatory scheme,” and “fit, if possible, all parts

into an harmonious whole.” Food & Drug Admin. v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(internal quotation marks and citations omitted). In passing

NACARA, Congress “spoke[] subsequently and more

specifically to the topic at hand,” id., to allow the Attorney

General to grant § 1229b cancellation of removal and

adjustment of status to certain applicants under more lenient

standards. 4 This did not place NACARA § 203 special rule

cancellation of removal “outside of § 1229(b),” as Petitioner

4

See Aragon-Salazar, 769 F.3d at 701 (“In enacting NACARA,

Congress relaxed the requirements of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-

208, 110 Stat. 3009, for cancellation of removal for [certain] aliens by

applying the less stringent pre-IIRIRA requirements.” (citing Barrios v.

Holder, 581 F.3d 849, 857 (9th Cir. 2009); Munoz v. Ashcroft, 339 F.3d

950, 955–56 (9th Cir. 2003))); see also Campos-Hernandez v. Sessions,

889 F.3d 564, 567 (9th Cir. 2018) (“NACARA was enacted in 1997 to

provide immigration benefits to nationals from certain Central American

and Eastern European countries, including El Salvador. In particular,

‘[s]ection 203 of NACARA allows qualified individuals to apply for

special rule cancellation under the more lenient standards that existed

before the passage of [IIRIRA].’” (alterations in original) (internal

citations omitted) (quoting Barrios, 581 F.3d at 857)).

12 HERNANDEZ V. GARLAND

contends. To the contrary, in Monroy, we held that, “as with

non-NACARA cancellation of removal,” 821 F.3d at 1177,

special rule cancellation of removal under NACARA is

“relief under section . . . 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i)

(emphasis supplied).

The only other Circuit Court of Appeals to address this

issue in a published decision interprets the relevant statutes

in accord with our approach:

Special-rule cancellation under [NACARA]

is the same as cancellation under [8 U.S.C.

§ 1229b]. This is the plain reading of section

203 of [NACARA]. Because [petitioner] has

already received special-rule cancellation of

removal under [NACARA], he is statutorily

barred, under [§ 1229b(c)(6)], from

reapplying for and receiving cancellation of

removal under [§ 1229b](a).

Sejdini v. Holder, 714 F.3d 399, 402 (6th Cir. 2013).

Although a panel of this court found, in an unpublished

opinion, that “it is ambiguous whether Congress intended

§ 1229b(c)(6) to extend to NACARA § 203 recipients,”

Hernandez-Romero v. Barr, 783 F. App’x 758, 759 (9th Cir.

2019), that opinion is not precedent and provides scant

support for Petitioner’s arguments here. Hernandez-Romero

was remanded to the BIA, which issued a published decision

holding that because a “prior grant of special rule

cancellation of removal under the NACARA [is] ‘under

[§ 1229b],’ the plain language of [§ 1229b(c)(6)] precludes

[an applicant] from [subsequently] obtaining cancellation of

removal under [§ 1229b(a)].” Matter of Hernandez-Romero,

28 I. & N. Dec. 374, 376 (BIA 2021) (citing, inter alia,

Sejdini, 714 F.3d at 402).

HERNANDEZ V. GARLAND 13

Even assuming arguendo that it is ambiguous whether

special rule cancellation of removal under NACARA bars

subsequent cancellation of removal under 8 U.S.C.

§ 1229b(c)(6), we would still uphold the BIA’s

determination. 5 “Under Skidmore, the measure of deference

afforded to the agency varies ‘depending upon the

thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power

to persuade, if lacking power to control.’” Marmolejo-

Campos, 558 F.3d at 909 (alteration adopted) (quoting

Skidmore, 323 U.S. at 140). Here, the BIA held that

NACARA § 203 was “explicitly made subject to the

provisions of” 8 U.S.C. § 1229b and that the IJ therefore

“correctly found [Petitioner] ineligible for cancellation of

removal.” While the BIA’s analysis is not extensive, its

reasoning is persuasive and consistent with its subsequent

precedential decision in Hernandez-Romero. We therefore

would defer to it under Skidmore. See Orellana, 967 F.3d

at 934 (holding that Skidmore deference is not “preclude[d]”

just because the BIA’s analysis is “not extensive”).

CONCLUSION

We conclude that “the intent of Congress is clear” that

special rule cancellation of removal under NACARA § 203

5

Although the BIA’s published decisions warrant Chevron

deference, unpublished decisions ordinarily warrant only Skidmore

deference unless they rely on a prior published decision. See Route v.

Garland, 996 F.3d 968, 975 (9th Cir. 2021). The BIA’s decision here

predated its published decision in Hernandez-Romero, so it

understandably did not rely on that case. In any event, because we uphold

the BIA’s decision even without the benefit of Chevron deference, we

agree with the government that there is no need to remand this case for

the BIA to apply Hernandez-Romero.

14 HERNANDEZ V. GARLAND

is cancellation of removal under 8 U.S.C. § 1229b. Chevron,

467 U.S. at 842. The IJ and BIA therefore did not err in

determining that Petitioner’s request for a second

cancellation of removal is barred by 8 U.S.C. § 1229b(c)(6).

PETITION DENIED.