FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ARTEMIO PEREZ-MARTIN, No. 03-70923
Petitioner,
v. Agency No.
A92-958-263
JOHN ASHCROFT, Attorney General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 8, 2004—Pasadena, California
Filed January 12, 2005
Before: Betty B. Fletcher, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Betty B. Fletcher
437
440 PEREZ-MARTIN v. ASHCROFT
COUNSEL
Orit Levit, Korenberg, Abramowitz & Feldun, Sherman Oaks,
California, for the petitioner.
Elizabeth J. Stevens, U.S. Department of Justice, Washington
D.C., for the respondent. With her on the briefs was Lisa M.
Arnold.
OPINION
B. FLETCHER, Circuit Judge:
In this petition for review of his removal order, petitioner
Jose Artemio Perez-Martin (“Perez”) challenges the Legaliza-
tion Appeals Unit (“LAU”)’s denial of his 1988 application
for temporary resident status as a Special Agricultural Worker
(“SAW”). Perez claims both that the LAU erred substantively
in denying his application, and that the Immigration Judge
(“IJ”) and Board of Immigration Appeals (“BIA”) erred in
refusing to review the LAU’s decision as part of the removal
proceedings against Perez. This case raises important ques-
tions about our jurisdiction and about the operation of the stat-
ute governing SAW benefits, 8 U.S.C. § 1160. We hold that
we have jurisdiction to review the denial of SAW status, and
PEREZ-MARTIN v. ASHCROFT 441
that neither the IJ nor the BIA has such jurisdiction. On the
merits, we deny the petition for review.
I. BACKGROUND
Federal law confers temporary resident status on any alien
who qualifies as a “Special Agricultural Worker.” 8 U.S.C.
§ 1160(a)(1). To qualify for this designation, an alien must
establish that he or she resided in the United States and per-
formed at least 90 days of “seasonal agricultural services”
during the twelve-month period ending on May 1, 1986. Id.
§ 1160(a)(1)(B). An applicant for SAW adjustment of status
has the burden to prove qualifying employment by a prepon-
derance of the evidence, id. § 1160(b)(3)(B)(i), which may
include government records, employer or union records, or
“such other reliable documentation as the alien may provide,”
id. § 1160(b)(3)(A). Once the applicant has produced evi-
dence sufficient to show qualifying employment “as a matter
of just and reasonable inference,” the burden shifts to the gov-
ernment to “disprove” the applicant’s evidence “with a show-
ing which negates the reasonableness of the inference to be
drawn from the evidence.” Id. § 1160(b)(3)(B)(iii).
The statute sets out the exclusive procedures for adminis-
trative and judicial review of agency decisions determining
SAW status. Id. § 1160(e)(1). Within the agency, a denial of
SAW status is subject to a single level of administrative
review by an appellate authority that the Attorney General
establishes for this purpose. Id. § 1160(e)(2)(A). Judicial
review of the agency’s denial of SAW status is permissible
only in the context of the review of an order of removal. See
id. § 1160(e)(3)(A).1
In December 1988, Perez applied for temporary resident
status as a SAW. In his application, Perez claimed as qualify-
1
The judicial review provision is discussed in detail below in connection
with our analysis of our jurisdiction.
442 PEREZ-MARTIN v. ASHCROFT
ing employment 103 days of picking and weeding strawber-
ries for Juan Ramirez at the Santa Maria Berry Farms in Santa
Barbara, California. In support of his claim, Perez submitted
an affidavit from Ramirez claiming personal knowledge that
Perez worked 103 days picking and weeding strawberries for
Ramirez and his wife between May 1 and October 14, 1985.
Seven months later, in response to a grand jury subpoena,
Juan Ramirez signed a declaration casting substantial doubt
on Perez’s claim. In the declaration, Ramirez stated:
I have been advised that several apparently forged
documents have surfaced which purport to bear my
signature. I have not condoned the use of fraudulent
documents, nor have I lent my signature to docu-
ments for non-employees. For this reason, I hereby
specifically disavow and renounce any and all such
documents. I have given no one authority to sign on
my behalf and I know of no one who has reason to
sign for me. Any document which purports to bear
my signature in reference [to] any INS application
should therefore be regarded as null and void.
An INS agent then spoke to Raul Segura, the Office Man-
ager for Santa Maria Berry Farms. According to the INS
report recounting the interview, Segura said that during the
time Ramirez worked land owned by Santa Maria, Ramirez
employed no more than two to three individuals at any given
time, and those individuals “were continuously being replaced
by newly hired employees.”
In March 1991, the Service issued a Notice of Intent to
Deny Perez’s SAW application, on the basis of Ramirez’s
second affidavit and of the facts provided by Segura. In
response to the Notice, Perez submitted a letter on Santa
Maria Berry Farms letterhead from Juan Ramirez. Entitled
“To: Immigration and Naturalization Service / Re: Jose
Artsmio [sic] Perez Martin,” the letter states that Ramirez is
PEREZ-MARTIN v. ASHCROFT 443
a strawberry grower and that from 1985-88, the harvesting
season was approximately six months, Ramirez paid his
workers in cash, and no records were kept. The letter contains
no specific information regarding Perez, but it concludes: “I
understand that the purpose of this letter is to verify this indi-
vidual’s employment by me, in connection with an applica-
tion for an immigrant visa.” The Service, suggesting it did not
find the additional letter from Ramirez to be credible, denied
Perez’s SAW application.
Perez appealed the decision to the LAU, which dismissed
the appeal in October 1994. According to the LAU, the final
Ramirez letter did not “overcome the adverse evidence” sub-
mitted by the government because the letter failed to address
either the Segura statement or Ramirez’s own previous affida-
vit declaring that all employment documents bearing his name
should be considered “null and void.”
In July 1999, the INS charged Perez with removability
under Immigration and Nationality Act section 212(a)(6)
(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien present
in the United States without having been admitted or paroled.
At his hearing six months later, Perez conceded removability
but sought review before the Immigration Judge (“IJ”) of the
denial of his SAW application. After the issue was briefed,
the IJ concluded in June 2000 that the SAW statute foreclosed
review of a SAW application by the IJ. The IJ denied adjust-
ment of status and granted Perez voluntary departure, with an
alternate order of removal to Mexico. Perez appealed to the
BIA, which affirmed the IJ in a brief order.
Perez then petitioned this court for review.
II. JURISDICTION
Our authority to review the denial of Perez’s application for
SAW status is not immediately clear. Though the parties do
not discuss this issue beyond Perez’s bare assertion that judi-
444 PEREZ-MARTIN v. ASHCROFT
cial review of SAW applications has been preserved, we have
an independent obligation to inquire into our own jurisdiction.
See Mitchell v. Maurer, 293 U.S. 237, 244 (1934). The exis-
tence of jurisdiction is a question of law reviewed de novo.
Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003).
[1] The SAW statute provides: “There shall be judicial
review of such a denial [i.e., of SAW status] only in the judi-
cial review of an order of exclusion or deportation under sec-
tion 1105a of this title (as in effect before October 1, 1996).”
8 U.S.C. § 1160(e)(3)(A). The parenthetical was added to the
statute by section 308(g)(2)(B) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009-612 (“IIRIRA”), a law that also
repealed former 8 U.S.C. § 1105a, see IIRIRA § 306(b);
amended 8 U.S.C. § 1252 to govern judicial review of
removal orders, see IIRIRA § 306(a); and in general consoli-
dated the former categories of “deportation” and “exclusion”
under the single concept of “removal.”
[2] Post-IIRIRA, this court has jurisdiction to review the
BIA’s final order of removal under 8 U.S.C. § 1252(a)(1).
The jurisdictional question we face today is whether the SAW
statute’s provision for judicial review, 8 U.S.C.
§ 1160(e)(3)(A), still applies when judicial review is premised
on 8 U.S.C. § 1252 rather than the section specified in the
SAW statute, the now-defunct 8 U.S.C. § 1105a.
[3] Though it appears no federal court has addressed this
question, the Fourth Circuit has interpreted language nearly
identical to that of 8 U.S.C. § 1160(e)(3)(A) as preserving
judicial review of legalization decisions in post-IIRIRA judi-
cial review of removal orders. Specifically, in Orquera v.
Ashcroft, 357 F.3d 413 (4th Cir. 2003), the Fourth Circuit
considered whether its review of a removal order could
include a review of a denial of amnesty under 8 U.S.C.
§ 1255a. Regarding judicial review, the statute at issue in that
case provided: “There shall be judicial review of such denial
PEREZ-MARTIN v. ASHCROFT 445
only in the judicial review of an order of deportation under
section 1105a of this title (as in effect before October 1,
1996).” Id. at 418 (quoting 8 U.S.C. § 1255a(f)(4)(A)) (inter-
nal quotation marks and emphasis omitted).2 As in the parallel
provision of the SAW statute, the parenthetical was added by
IIRIRA. Id. The court found that this addition was susceptible
to two constructions in light of IIRIRA’s abolition of 8 U.S.C.
§ 1105a: either the parenthetical functioned to “freeze in place
the previously existing scope of judicial review,” regardless
of the section under which an appellate court exercised juris-
diction, or the parenthetical indicated that judicial review of
a denial of legalization was to be available only in the context
of judicial review arising “under” § 1105a itself. Id. at 418-19.3
Finding that the latter interpretation would render the paren-
thetical surplusage, would conflict with a related statute, and
would contravene the “well-settled presumption favoring
interpretations of statutes that allow judicial review of admin-
istrative action,” id. at 422 (quoting McNary v. Haitian Refu-
gee Center, Inc., 498 U.S. 479, 496 (1991)) (internal
quotation marks omitted), the court held that courts of appeals
retain jurisdiction to review legalization decisions in the con-
text of removal orders under 8 U.S.C. § 1252. Id. at 420-23.
[4] Though not all of Orquera’s reasoning applies to the
SAW statute, interpreting IIRIRA to have implicitly abolished
all judicial review of the denial of SAW application would
clearly flout the presumption in favor of judicial review. Fol-
lowing the Supreme Court, we “presum[e] that Congress leg-
islates with knowledge of our basic rules of statutory
construction,” including “our well-settled presumption favor-
2
The only difference between this language and the comparable lan-
guage from the SAW statute is that the latter makes SAW denials review-
able within judicial review of orders of exclusion as well as within review
of orders of deportation.
3
Despite the repeal of 8 U.S.C. § 1105a, review under that section still
occurs in certain cases, pursuant to the IIRIRA’s transitional rules. See
IIRIRA § 309(c); Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir. 1997).
446 PEREZ-MARTIN v. ASHCROFT
ing interpretations of statutes that allow judicial review of
administrative action.” McNary, 498 U.S. at 496; see also INS
v. St. Cyr, 533 U.S. 289, 298 (2001) (invoking the “strong
presumption” favoring judicial review of administrative
action (emphasis added)). In light of this presumption and the
lack of “clear and convincing evidence” of congressional
intent to preclude judicial review of denials of SAW appli-
cants, Reno v. Catholic Social Services, Inc., 509 U.S. 43, 64
(1993), we find it “most unlikely that Congress intended to
foreclose all forms of meaningful judicial review.” McNary,
498 U.S. at 496. Accordingly, we interpret the SAW statute
in conformity with our sister circuit’s interpretation of nearly
identical language in a similar statute, and we hold that
IIRIRA preserved federal court jurisdiction to review a denial
of SAW status within judicial review of an order of removal,
regardless of the jurisdictional provision under which such
review is carried out.
III. ANALYSIS
A. The BIA’s Jurisdiction To Review the Denial of SAW
Status
Perez claims first that the denial of his SAW application
should have been reviewed as part of his administrative
removal proceedings before the IJ and BIA. An administrative
agency’s interpretation of its statutory authority is reviewed
de novo. Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071,
1073 (9th Cir. 2003). We reject Perez’s claim.
[5] The SAW statute provides two levels of review for
denials of SAW legalization — one administrative (before an
adjudicative body established for this purpose) and one judi-
cial (in the federal appellate courts as part of judicial review
of a removal order). 8 U.S.C. §§ 1160(e)(2)-(3). The statute
expressly stipulates that these avenues for review are exclu-
sive. 8 U.S.C. § 1160(e)(1). When the statute’s provision for
a single level of administrative review is read together with its
PEREZ-MARTIN v. ASHCROFT 447
exclusivity provision, the plain language of the SAW statute
forecloses BIA jurisdiction to review the denial of an applica-
tion for SAW status.
Perez cites several provisions of the United States Code
and Federal Rules of Appellate Procedure in support of a cre-
ative argument that the judicial review of a denial of SAW
status cannot occur unless the denial has first been reviewed
by the BIA as part of the removal proceedings. This argument
fails. Only one of the provisions Perez cites offers any support
for his theory: Subject to an exception not relevant to the
instant case, “the court of appeals shall decide the petition [for
review of a removal order] only on the administrative record
on which the order of removal is based.” 8 U.S.C.
§ 1252(b)(4)(A) (emphasis added). On its face, this provision
suggests that the scope of a court’s review of a removal order
is limited to the record of the removal proceedings, and there-
fore that the record of a SAW proceeding cannot be consid-
ered unless it is incorporated into the record of the removal
proceeding. However, “[i]t is a well-settled canon of statutory
interpretation that specific provisions prevail over general
provisions.” NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410,
1415 (9th Cir. 1994). Congress made absolutely clear in the
SAW statute that it specifically intended denials of SAW
applications to be reviewable judicially as part of a review of
a removal order, and to be reviewable administratively only
by the administrative body established for this purpose. 8
U.S.C. § 1160(e). The general provision Perez cites cannot
overcome Congress’s specific directive in the SAW context.
[6] We therefore hold, in accordance with the plain lan-
guage of the SAW statute, that the BIA lacks jurisdiction to
review the denial of an application for SAW status.
B. The LAU’s Denial of Perez’s SAW Application
[7] Determinations contained in a denial of SAW status
“shall be conclusive unless the applicant can establish abuse
448 PEREZ-MARTIN v. ASHCROFT
of discretion or that the findings are directly contrary to clear
and convincing facts contained in the record considered as a
whole.” 8 U.S.C. § 1160(e)(3)(B).
With respect to proof on an applicant’s eligibility, the SAW
statute provides:
An alien can meet [his or her] burden of proof if the
alien establishes that the alien has in fact performed
[the requisite employment] by producing sufficient
evidence to show the extent of that employment as
a matter of just and reasonable inference. In such a
case, the burden then shifts to the Attorney General
to disprove the alien’s evidence with a showing
which negates the reasonableness of the inference to
be drawn from the evidence.
8 U.S.C. § 1160(b)(3)(B)(iii).
[8] Once Perez came forward with the original Ramirez
affidavit verifying that he had worked the requisite number of
days of qualifying employment, Perez had clearly “produc[ed]
sufficient evidence to show the extent of [his] employment as
a matter of just and reasonable inference.” At that point, the
burden shifted to the government to “negate[ ] the reasonable-
ness of the inference to be drawn from the evidence.”
1. The government’s evidence
The first question is whether the government discharged its
burden. In his second affidavit, Ramirez stated that “[a]ny
document which purports to bear my signature in reference
[to] any INS application should . . . be regarded as null and
void.” The statement of Santa Maria’s Office Manager,
Segura, also casts doubt on Perez’s claim by implying that no
one worked for Ramirez for very long.
PEREZ-MARTIN v. ASHCROFT 449
Perez is correct that the Segura statement is not specific
enough to carry the government’s burden of disproving the
evidence in Perez’s original application. The fact that
Ramirez employed few workers does not foreclose the possi-
bility that Perez was one of them. Nor does Segura’s observa-
tion about frequent turnover prove anything: Segura did not
state specifically that no one worked for Ramirez for at least
90 days during the year in question, only that Ramirez’s
workers “were continuously being replaced by newly hired
employees.” There is no indication as to what Segura meant
by “continuously” — if indeed Segura himself used this word
at all.4 Even if the word “continuously” is attributable to
Segura, the statement is simply not specific enough to refute
Perez’s initial claim to employment.
[9] The second Ramirez affidavit, however, is quite damag-
ing to Perez’s application. Though Perez is correct in observ-
ing that part of Ramirez’s statement can be taken to suggest
by negative implication that he signed some valid documents
for individuals he actually employed — Ramirez said, “I have
not condoned the use of fraudulent documents, nor have I lent
my signature to documents for non-employees” (emphasis
added) — Ramirez’s ultimate disavowal of SAW affidavits in
his name is broad and unequivocal: “Any document which
purports to bear my signature in reference [to] any INS appli-
cation should therefore be regarded as null and void” (empha-
sis added). This statement under oath satisfies the
government’s burden to “negate[ ] the reasonableness of the
inference to be drawn from the [applicant’s] evidence.” 8
U.S.C. § 1160(b)(3)(B)(iii).
2. Perez’s rebuttal evidence
As an initial matter, we consider the nature of the burden
an applicant must carry once the government has produced
4
The quoted language comes from an INS document summarizing the
Segura interview, not from Segura himself.
450 PEREZ-MARTIN v. ASHCROFT
evidence to refute the applicant’s initial showing. There are
two possibilities: either the applicant must reestablish the
predicate facts of the initial application, or the applicant must
simply negate the inference of the government’s showing, so
that the evidence viewed as a whole is sufficient to support
the applicant’s claim “as a matter of just and reasonable infer-
ence.” 8 U.S.C. § 1160(b)(3)(B)(iii). Though the statute does
not specify what an applicant must show in order to rebut
derogatory evidence submitted by the government, the statu-
tory scheme appears to support the latter of the two possibili-
ties we have identified. Where an applicant’s responsive
evidence rebuts the government’s attempt to “negate[ ] the
reasonableness of the inference to be drawn from the [appli-
cant’s initial] evidence,” the applicant has restored a state of
the evidence in which qualifying employment is shown by a
preponderance of the evidence “as a matter of just and reason-
able inference.” Id. This showing is all that is required to sus-
tain the applicant’s initial burden, so it would frustrate the
statute’s basic design, as well as the statute’s purpose of
establishing a “broad amnesty program[ ] to allow existing
undocumented aliens to emerge from the shadows,” McNary,
498 U.S. at 482-83, to require a higher showing by the appli-
cant in rebuttal. Moreover, it would seem inefficient and
unnecessary to force an applicant for SAW status to reestab-
lish facts already submitted to the administrative adjudicator.
Therefore we conclude that, in order to overcome derogatory
evidence put forth by the government, an applicant need not
reestablish the predicate facts of his claim; instead, the appli-
cant is required to provide only enough evidence so that the
evidence before the adjudicator, viewed as a whole, is “suffi-
cient . . . to show [qualifying] employment as a matter of just
and reasonable inference.” 8 U.S.C. § 1160(b)(3)(B)(iii).
The final question is whether the LAU abused its discretion
in finding that the Ramirez letter did not meet Perez’s burden
to rebut the government’s showing. Ordinarily, a supporting
letter from an applicant’s employer would easily suffice to
rehabilitate an applicant’s claim to SAW status in the face of
PEREZ-MARTIN v. ASHCROFT 451
derogatory evidence. The employer is the person in the best
position to verify the claims of the applicant, who may have
difficulty finding other corroboration given the transient
nature of the work. Unless there are specific indicia that an
employer’s letter or other communication is unreliable,
refusal to accept corroboration by the applicant’s employer
would usually be an abuse of discretion.
[10] On the facts of this case, however, we cannot say that
the LAU abused its discretion in refusing to credit the pur-
ported letter from Perez’s employer. The Ramirez letter is
highly suspect. First, the text of the letter is unnaturally gen-
eral, containing no indication beyond the heading that the let-
ter actually relates to Perez himself. The entire body of the
letter discusses facts about Ramirez, not Perez. Second, the
letter never spells out, or even suggests, that Perez worked for
Ramirez. Instead, the letter merely concludes with the cryptic
statement, “I understand that the purpose of this letter is to
verify this individual’s employment by me, in connection
with an application for an immigrant visa.” Finally, as the
LAU observed, the letter did not explain or mention in any
way Ramirez’s previous affidavit that any employment docu-
ments bearing his name should be regarded as “null and
void.” It is not unreasonable to surmise that an individual who
has disavowed all employment verification forms bearing his
name would, when writing a letter intended to corroborate a
claim on a form among those he disavowed, at least make
some mention of the tension among the various assertions
made in his name. Considering all of these factors together,
we conclude that the LAU did not abuse its discretion in sus-
pecting the credibility of the letter and finding that it did not
overcome the adverse evidence submitted by the government.5
5
The LAU also seems to have faulted the letter for failing to address the
statements of Segura the Office Manager. Had this been the only basis for
discounting the value of the letter, we would find an abuse of discretion,
as there is no reason to have expected Ramirez to address a statement that
is not actually inconsistent with Perez’s employment claim, or even to
assume that Ramirez was aware of the Segura statement at all. However,
the LAU’s faulty reliance on the Segura statement does not undermine its
conclusion, as there was ample reason not to credit the Ramirez letter.
452 PEREZ-MARTIN v. ASHCROFT
IV. CONCLUSION
We hold that IIRIRA preserved federal court jurisdiction to
review a denial of SAW status within judicial review of an
order of removal, regardless of the jurisdictional provision
under which such review is carried out. Under 8 U.S.C.
§ 1160(e), the IJ and BIA are foreclosed from reviewing a
denial of SAW status. On the merits, we conclude that the
LAU did not abuse its discretion in denying Perez’s SAW
application.
PETITION DENIED.