Campos-Hernandez v. Sessions, No. 14-70034 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit denied a petition for review of the BIA's determination that petitioner was ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). When petitioner applied for NACARA special rule cancellation, the BIA interpreted the physical presence requirement as running from petitioner's most recent disqualifying conviction, rather than his earliest, and so held him ineligible for NACARA cancellation of removal. The panel held that the BIA's determination of NACARA was reasonable and was therefore entitled to deference.
Court Description: Immigration. The panel denied Manuel Campos-Hernandez’s petition for review of a decision of the Board of Immigration Appeals, concluding that he was ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). To be eligible for cancellation of removal under NACARA, an applicant who is inadmissible on certain criminal grounds, like Campos-Hernandez, is subject to a heightened physical presence requirement such that he must establish that he “has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal.” NACARA § 203(b); 8 C.F.R. § 1240.66(c)(2). The BIA concluded that Campos-Hernandez’s 2008 conviction was a ground of removal, and because ten years had not elapsed between 2008 and the decision of the BIA, he was not eligible for cancellation of removal under NACARA. After briefing in this appeal, the BIA held, in Matter of Castro-Lopez, 26 I. & N. Dec. 693 (BIA 2015), a precedential opinion in a different immigration appeal, that continuous presence for cancellation of removal under NACARA “should be measured from the alien’s most recently incurred ground of removal.” CAMPOS-HERNANDEZ V. SESSIONS 3 The question before the panel in Campos-Hernandez’s case was which act or status constituting a ground for removal—the first, last, or any other—starts the clock for the ten-year “heightened” physical presence requirement. The panel first determined that, under Nat’l Cable & Telecommc’ns Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the panel was not bound by this court’s contrary interpretation of identical language in the now-superseded suspension of deportation statute in Fong v. INS, 308 F.2d 191 (9th Cir. 1962), concluding that Fong did not hold that a contrary interpretation was foreclosed. Second, the panel deferred to Matter of Castro-Lopez. As a preliminary matter, the panel concluded that Matter of Castro-Lopez involved the interpretation of a statute, not a regulation, because the regulation copies verbatim the relevant statutory text from NACARA. The panel also determined that NACARA § 203(b) was silent or ambiguous with respect to the issue here. Further, the panel concluded that the BIA’s interpretation was reasonable, noting that the use of indefinite articles in NACARA § 203(b)—(i.e., “an act,” “a status,” as opposed to “the act,” “the status”) grants the words an indefinite or generalizing force. Thus, the panel concluded that it is reasonable to interpret the requisite ten- year period to immediately follow each disqualifying act or status, rather than to follow a single particularized act or status—the first one, as Campos-Hernandez would read the statute. The panel also observed that reading the continuous physical presence requirement to run from the last act or status, rather than the first, avoids consequences that would frustrate the evident policy behind the requirement; under the 4 CAMPOS-HERNANDEZ V. SESSIONS opposite reading, individuals most likely to continue committing crimes, as evidenced by their very recent behavior, would be eligible to stay in the country, but individuals who had not committed any crime for eight or nine years would not.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.