Jaime Perez-Enriquez v. Alberto R. Gonzales, Attorney General

463 F.3d 1007 Jaime PEREZ-ENRIQUEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-70244. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 23, 2006. Filed September 15, 2006. Raul R. Labrador, Nampa, ID, Robert H. Gibbs, Robert H. Pauw, Gibbs Houston Pauw, Seattle, WA, for the petitioner. Francis W. Fraser, Deborah N. Misir, U.S. Department of Justice, Washington, D.C., for the respondent. Stephen W. Manning, Jennifer M. Rotman, and Jessica M. Boell, American Immigration Lawyers Association, Portland, OR, for Amicus. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Amx-fer-muv. Before: SCHROEDER, Chief Judge, REINHARDT, O'SCANNLAIN, THOMAS, SILVERMAN, McKEOWN, WARDLAW, W. FLETCHER, FISHER, PAEZ, MARSHA S. BERZON, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, Circuit Judges. WILLIAM A. FLETCHER, Circuit Judge: 1 The question raised by this petition is whether the admissibility of an alien under the Special Agricultural Worker ("SAW") program is determined only as of the date of admission for lawful temporary residence under 8 U.S.C. § 1160 (a)(1), or whether it is determined both as of that date and as…

The question raised by this petition is whether the admissibility of an alien under the Special Agricultural Worker (“SAW”) program is determined only as of the date of admission for lawful temporary residence under 8 U.S.C. § 1160 (a)(1), or whether it is determined both as of that date and as of the date of adjustment to lawful permanent residence under § 1160(a)(2). We hold that admissibility is determined as of the date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence. We therefore grant the petition for review.

I. Factual Background

On about November 10, 1988, Jaime Perez-Enriquez, a citizen of Mexico, was admitted to lawful temporary resident status under the SAW provisions of the Im *1009 migration and Nationality Act (“INA”), 8 U.S.C. § 1160 (a)(1). It is undisputed that at the time he was granted temporary resident status, Perez-Enriquez satisfied the requirements for admissibility under § 1160(a)(1). On December 1, 1990, Per-eznEnriquez’s status was automatically adjusted to lawful permanent resident under 8 U.S.C. § 1160 (a)(2).

On March 27, 1989, after his admission as a lawful temporary…

concurring in part and dissenting in part:

I, too, agree with most of the majority’s opinion. However, I also agree with Judges Bybee and Silverman that a remand under INS v. Ventura, 537 U.S. 12 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002), is in order. Although the BIA’s ruling in Matter of Jimenez-Lopez, 20 I. & N. Dec. 738 (BIA 1993), implicitly controls this decision, the agency must be given an opportunity to make an explicit holding that the relevant admissibility date for a special agricultural worker (“SAW”) applicant is the date of admission as a lawful temporary resident. I am persuaded that this is the correct reading of the SAW provisions. As the BIA stated in Jimenez-Lopez, ad *1016 justment of status under the SAW provisions “involves a different procedure” whereby the applicant’s status is adjusted to “that of a lawful permanent resident on the basis of a fixed schedule, without regard for the alien’s admissibility at that time.” Id. at 742 .

concurring in part and dissenting in part:

I agree with much of the majority’s opinion. I write separately because I believe that the majority has overstepped the bounds of INS v. Ventura, 537 U.S. 12 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002). The majority finds that BIA has previously construed 8 U.S.C. § 1160 (a)(1) to mean that Perez-Enriquez’s admissibility is determined only as of the date of admission to lawful temporary status. See Matter of Jimenez-Lopez, 20 I. & N. Dec. 738 , 1993 WL 494088 (BIA 1993). It agrees with BIA and affords these decisions Chevron deference. Maj. Op. at 1012. It then contrasts BIA’s prior position with its position in this case, which BIA evidently felt compelled to take because of the panel’s original decision. Finding BIA’s position in this case inconsistent with its prior position, the majority concludes that BIA’s decision in this case must be erroneous and vacates the order of removal.

I am with the majority until that final step. I am not so confident that we can reach that conclusion for BIA, even though we may have invited the error. An agency has a duty of consistent dealing. It also has the duty, in the first instance, to construe the…

dissenting:

As noted by the majority, this case concerns a narrow legal issue: whether, in removal proceedings where the alien is charged under 8 U.S.C. § 1227 (a)(1)(A) with being inadmissible at the time of adjustment of status, the adjustment of status date is the date the alien’s status was adjusted to legal temporary resident or the date on which it was adjusted to legal permanent resident. Section 1227(a)(1)(A) provides that any “alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.” (Emphasis added.) We must therefore consider whether “adjustment of status” refers to November 10, 1988, when Perez-Enriquez presented himself to the government and claimed that he resided in the United States and had performed seasonal agricultural services for at least 90 days, see 8 U.S.C. § 1160 (a)(1), or December 1, 1990, when his status was automatically adjusted to lawful permanent resident, see 8 U.S.C. § 1160 (a)(2). Lacking any clear instruction in the statute, we are forced to look beyond the plain language of the statute to determine which date the government must use.

The…