Hernandez Flores v. Rosen, No. 17-72888 (9th Cir. 2020)
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The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding of removability based on his past drug convictions. Under the Special Agricultural Worker program (SAW), agricultural workers meeting certain qualifications could obtain lawful temporary resident status, after which they were automatically adjusted to lawful permanent residency on a set schedule. Petitioner had obtained lawful permanent resident status through SAW, but it turns out that before he applied for SAW temporary resident status, he had been convicted of two drug offenses that would have rendered him ineligible for admission into the United States.
The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel rejected petitioner's argument that SAW's limitations on administrative and judicial review prevent the government from seeking his removal. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), provided no support for petitioner's assertion that under provisions unique to SAW, he could only be removed for his drug convictions during the period of his temporary residency.
Court Description: Immigration. The panel denied Sergio Hernandez Flores’s petition for review of a decision of the Board of Immigration Appeals and held that the government may remove petitioner now, rejecting his contention that, under provisions specific to the Special Agricultural Worker program (SAW), the Attorney General was required to seek his removal while he was a temporary resident decades ago. Under SAW, certain alien agricultural workers who performed services in the United States for at least 90 days during the 12-month period ending on May 1, 1986 could apply for adjustment to temporary resident status. An applicant had to establish that he was admissible, and an alien granted temporary residence was automatically adjusted to permanent resident status on a fixed schedule. Before being granted temporary resident status under SAW in 1990, petitioner was convicted of two drug felonies. The record did not indicate whether he disclosed his convictions on his application. In 1992, he automatically adjusted to permanent resident status, but was charged as removable in 2015 as an alien who was inadmissible at the time of adjustment. He did not dispute that his convictions rendered him inadmissible, but argued that he could only have been removed on that ground under SAW’s termination provisions, which provided that after adjustment to temporary residency, but before adjustment to permanent HERNANDEZ FLORES V. ROSEN 3 residency, the Attorney General could terminate an alien’s temporary resident status. The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel explained that neither the SAW statutory provisions nor regulations suggest, much less mandate, that the termination provisions are the exclusive means by which the government may remove an alien in this circumstance. By the same token, the panel explained that nothing in petitioner’s ground of removability purports to exempt SAW applicants from its ambit. The panel also observed that BIA precedent is in accord with its holding. The panel also rejected petitioner’s contention that SAW’s limitations on administrative and judicial review prevent the government from seeking his removal, explaining that those limits apply only to review of denials of SAW status. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), which rejected the argument that “a noncitizen is not rendered ‘inadmissible’ unless and until the noncitizen is actually adjudicated as inadmissible and denied admission,” provided no support for petitioner’s position. 4 HERNANDEZ FLORES V. ROSEN
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