Jorge Aragon-Salazar v. Eric Holder, Jr.

BACKGROUND

I. Statutory Structure

Section 203 of NACARA establishes rules to permit certain classes of aliens, including some from Guatemala, to apply for relief from removal under what is titled “Special Rule for Cancellation of Removal.” NACARA, Pub. L. No. 105-100, 111 Stat. 2160, 2193–2201 (NACARA § 203). 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 such aliens by applying the less stringent pre-IIRIRA requirements. See Barrios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009); Munoz v. Ashcroft, 339 F.3d 950, 955–56 (9th Cir. 2003).

Under § 309(f) of IIRIRA, as amended by NACARA § 203, the Attorney General has discretion to “cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence” an alien who, inter alia:

(i) is not inadmissible or deportable under paragraph (2) or (3) of section 212(a) or paragraph (2), (3), or (4) of section 237(a) of the Immigration and Nationality Act and is not an alien described in section 241(b)(3)(B)(i) of such Act;

(ii) has been physically present…

Opinion by Judge MILAN D. SMITH, Jr.; Dissent by Judge CALLAHAN.

*701 OPINION

Jorge Dario Aragon-Salazar (Aragon), a native and citizen of Guatemala, petitions for review of a decision by the Board of Immigration Appeals (BIA), affirming the Immigration Judge’s (IJ) denial of his application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub.L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997). The IJ and BIA denied Aragon’s application on the ground that his false testimony prevented him from establishing good moral character during the seven-year period required by NACARA in order to be eligible for special rule cancellation of removal. As a matter of first impression in our circuit, we hold that an application for special rule cancellation of removal under NACARA is not a continuing application, and that the seven-year period during which good moral character is required under NACARA ends on the date of the filing of the application. In this case, if Aragon gave false testimony, he did so after the requisite seven-year period. Accordingly, we grant the petition for review, and remand for further…

dissenting:

The majority holds that a petitioner seeking relief under the Special Rule for Cancellation of Removal, IIRIRA § 309(f), as amended by NACARA § 203, amended by Pub.L. No. 105-139, 111 Stat. 2644-45 (1997), is not disqualified from relief based upon false testimony given after the filing and during the processing of his immigration application because those falsehoods did not take place within the seven years preceding the date of his application. In arriving at its conclusion, the majority relies on the first prong of the test set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984), finding the statutory language of § 203 to be both clear and compelling. I respectfully disagree. I believe the statute is ambiguous because it does not address the question of whether maintaining a good moral character is a continuing obligation during the processing of an individual’s immigration application. Considering the statute in the context of immigration proceedings, I do not agree that an applicant’s responsibility to maintain a good moral character, vanishes upon the filing of an application for relief. I…