Torres v. Barr, No. 13-70653 (9th Cir. 2020)
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The en banc court overruled Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), and held that petitioner, who was present in the Commonwealth of the Northern Mariana Islands (CNMI) when the Immigration and Nationality Act (INA) became applicable there, was not removable under 8 U.S.C. 1182(a)(7)(a)(i). Section 1182(a)(7)(a)(i) applies to noncitizens who do not possess a valid entry document "at the time of application for admission." The en banc court held that the phrase "at the time of application for admission" refers to the particular point in time when a noncitizen submits an application to physically enter into the United States. Therefore, the en banc court granted the petition for review to the extent that the BIA determined that petitioner was removable "as an intending immigrant without a . . . valid entry document" under section 1182(a)(7).
The en banc court held that the BIA properly concluded that petitioner is ineligible for relief in the form of cancellation of removal where substantial evidence supports the BIA's determination that petitioner failed to carry her burden of establishing ten years of continuous presence in the United States. Therefore, the en banc court granted in part and denied in part the petition for review, and remanded to the agency for a determination in the first instance as to whether petitioner was removable under the second ground originally charged in the Notice to Appear— removability as "[a]n alien present in the United States without being admitted or paroled" under section 1182(a)(6).
Court Description: Immigration Granting in part and denying in part Catherine Torres’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the en banc court overruled Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), and held that Torres, who was present in the Commonwealth of the Northern Mariana Islands (CNMI) when the Immigration and Nationality Act (INA) became applicable there, was not removable under 8 U.S.C. § 1182(a)(7)(a)(i), which applies to noncitizens who do not possess a valid entry document “at the time of application for admission.” Under the 1976 Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, certain CNMI citizens and residents, as well as anyone born on CNMI soil, became United States citizens. However, the CNMI government retained control over immigration into the territory, permitting large numbers of temporary “guest workers” to work there. In 2008, Congress enacted the Consolidated Natural Resources Act (CNRA), which imposed the INA within the CNMI effective November 28, 2009. Under the INA, a noncitizen present in the United States without being admitted or paroled is inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i). Because the sudden imposition of the INA could have rendered thousands of guest workers TORRES V. BARR 3 and others removable under this provision overnight, Congress provided a two-year reprieve in which any alien “lawfully present in the Commonwealth” on the effective date could not be removed under § 1182(a)(6). However, beginning in 2010, the federal government began charging some CNMI residents as removable under § 1182(a)(7), a provision not covered by the two-year reprieve. Torres, a native of the Philippines who entered the CNMI lawfully as a guest worker in 1997, was placed in removal proceedings in 2010. She was charged as removable under § 1182(a)(6) and § 1182(a)(7). Torres argued that she fell outside the scope of § 1182(a)(7) on the grounds that she had lawfully entered the CNMI before the INA went into effect and had never submitted an application for admission into the United States. The immigration judge and the BIA rejected this argument, and a three-judge panel of this court agreed, concluding it was bound by Minto, which had held that Minto, who was similarly situated to Torres, was inadmissible under § 1182(a)(7). The Minto court reasoned that, because he was present in the United States on the CNRA’s effective date without having been admitted or paroled, he was deemed to be an “applicant for admission,” and therefore should be deemed to have made an application for admission. Overruling Minto, the en banc court held that the phrase “at the time of application for admission” in § 1182(a)(7) refers to the particular point in time when a noncitizen submits an application to physically enter the United States, and therefore, does not apply to noncitizens such as Torres. In so concluding, the en banc court examined the INA’s definition of “admission” and this court’s understanding of the term “entry.” Further, the en banc court explained that, by using the phrase “time of application for admission” 4 TORRES V. BARR solely in connection with documents required to lawfully cross the United States border, § 1182(a)(7) signals that the time of application for admission is when a noncitizen seeks permission to physically enter United States territory. The en banc court noted that this construction is supported by the statutory context and aligns with the interpretation of the Fifth and Eleventh Circuits. The en banc court further explained that Minto’s interpretation: 1) failed to understand that the phrase “applicant for admission” is a term of art denoting a particular legal status, as the history of its enactment makes clear; 2) entirely disregarded a precedential decision of the BIA that squarely held to the contrary; and 3) rendered superfluous key provisions of the immigration laws. The en banc court remanded to the BIA to decide whether Torres was removable under § 1182(a)(6), instructing it to address whether she was “lawfully present” in the CNMI under CNMI law, and thus not removable under § 1182(a)(6). The en banc court also concluded that Torres is ineligible for cancellation of removal due to her failure to establish ten years of continuous presence in the United States, and concluded that it lacked jurisdiction to consider her request to remand the case to the agency to consider her application for “parole-in place.” TORRES V. BARR 5
This opinion or order relates to an opinion or order originally issued on June 12, 2019.
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