FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME PEREZ-ENRIQUEZ,
Petitioner, No. 03-70244
v.
Agency No.
A92-002-074
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 6, 2004—Seattle, Washington
Filed June 14, 2005
Before: Cynthia Holcomb Hall and Consuelo M. Callahan,
Circuit Judges, and William O. Bertelsman,** Senior Judge.
Opinion by Judge Callahan
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The Honorable William O. Bertelsman, Senior United States District
Judge for the Eastern District of Kentucky, sitting by designation.
7047
PEREZ-ENRIQUEZ v. GONZALES 7049
COUNSEL
Petitioner was represented by Robert H. Gibbs of Seattle,
Washington, at argument and by Raul R. Labrador of Nampa,
Idaho, on his brief.
Respondent was represented by Isaac Campbell of Washing-
ton, D.C., at oral argument and by Assistant Attorney General
Peter D. Keisler, Assistant Director Mark C. Walters, and
Deborah N. Misir on the brief.
OPINION
CALLAHAN, Circuit Judge:
Jaime Perez-Enriquez, petitioner, contends that he may not
be removed as an alien who was inadmissible at the time of
his adjustment of status under 8 U.S.C. § 1227(a)(1)(A)
because his adjustment of status took place on the date he
applied for lawful permanent residence. We, however, adopt
the Immigration Judge’s (“IJ”) position, summarily affirmed
by the Board of Immigration Appeals (“BIA”), that Perez-
7050 PEREZ-ENRIQUEZ v. GONZALES
Enriquez’s adjustment of status for purposes of 8 U.S.C.
§ 1227(a)(1)(A) did not occur until his immigration status was
adjusted to lawful permanent resident.1 As petitioner does not
contest that he was inadmissible on this later date, his petition
for review is dismissed.
I
Jaime Perez-Enriquez is a citizen and native of Mexico. On
or about November 10, 1988, he was granted temporary resi-
dent status under the Special Agricultural Workers (“SAW”)
provisions of § 210 of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1160. On December 1, 1990, his tempo-
rary lawful status was automatically adjusted to that of a law-
ful permanent resident pursuant to that section. Id.
§ 1160(a)(2)(B).
On February 27, 1989, when Perez-Enriquez was 18 years
old, he pled guilty to the crime of Possession of Narcotic Con-
trolled Substance for Sale, in violation of California Health
and Safety Code § 11351. Perez-Enriquez was sentenced to
180 days in jail.
In June 2000, petitioner was served with a Notice to
Appear in which the government alleged that he was subject
to removal pursuant to sections 237(a)(2)(B)(i) [8 U.S.C.
§ 1227(a)(2)(B)(i)] (relating to controlled substance convic-
tions after admission) and 237(a)(2)(A)(iii) [8 U.S.C.
§ 1227(a)(2)(A)(iii)] (relating to aggravated felonies after
admission) of the INA.
In July 2001, the government withdrew those charges and
charged Perez-Enriquez under § 237(a)(1)(A) [8 U.S.C.
§ 1227(a)(1)(A)] as “an alien who at the time of adjustment
1
We have held that where, as here, the BIA affirms an IJ’s order without
an opinion, we review the IJ’s order as the final agency action. Khup v.
Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004).
PEREZ-ENRIQUEZ v. GONZALES 7051
of status was within one or more of the classes of aliens inad-
missible by the law existing at such time: to wit Section
212(a)(2)(A)(i)(II), a violation of any law of a State, relating
to a controlled substance.”
In August 2001, Perez-Enriquez moved to terminate or dis-
miss the proceedings arguing that he was not within a class
of aliens inadmissible at the time his status was adjusted
because the determination of his admissibility was made in
November 1988, at which time he had not been convicted of
any crimes. The IJ issued an oral decision finding that peti-
tioner “did not properly attain lawful permanent residence sta-
tus, notwithstanding it being recorded in 1990,” and ordering
Perez-Enriquez removed to Mexico.
Petitioner appealed to the BIA and on December 19, 2002,
the BIA affirmed without an opinion. Perez-Enriquez filed a
timely petition for review with the Ninth Circuit on January
15, 2003. We have jurisdiction pursuant to 8 U.S.C. § 1252.
II
This case concerns the narrow issue of the definition of the
term “adjustment of status” as used in 8 U.S.C.
§ 1227(a)(1)(A) and its application to petitioner.2 As Perez-
Enriquez offers no objections to the IJ’s findings of fact, this
case presents a legal question that we review de novo. Shi-
varaman v. Ashcroft, 360 F.3d 1142, 1145 (9th Cir. 2004)
(“We review de novo an agency’s construction of a statute
that it administers, subject to established principles of defer-
ence.”); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995)
2
The statute reads:
(A) Inadmissible aliens.
Any alien who at the time of entry or adjustment of status was
within one or more of the classes of aliens inadmissible by law
existing at such time is deportable.
7052 PEREZ-ENRIQUEZ v. GONZALES
(holding that the BIA’s purely legal interpretations of the Act
are reviewed de novo, but are generally entitled to deference).
If November 10, 1988, the date that Perez-Enriquez applied
for permanent residence under the SAW provisions, is the
date of his “adjustment of status,” then the government has
not alleged any facts that would place him within a class of
aliens “inadmissible by the law existing at such time.” The
government might well be able to seek his deportation under
some other statute, but it could not prevail under 8 U.S.C.
§ 1227(a)(1)(A). On the other hand, if “adjustment of status”
when applied to Perez-Enriquez refers to December 1, 1990,
the date that his status was automatically adjusted to lawful
permanent resident, then petitioner’s 1989 criminal conviction
places him within a class of aliens “inadmissible by the law
existing at such time.”3
As a preliminary matter, we reject the government’s argu-
ment that under 8 U.S.C. § 1252(a)(2)(C) we lack jurisdiction
to consider Perez-Enriquez’s petition. In Alvarez-Santos v.
INS, 332 F.3d 1245, 1251-52 (9th Cir. 2003), we narrowly
construed that statute’s limitation on judicial review.4 We fur-
ther noted that we retained jurisdiction to address due process
concerns. Id. at 1252. We read Alvarez-Santos as allowing us
to determine whether as a matter of law and fact Perez-
Enriquez is subject to the charges brought against him. In
other words, we review whether the allegations in the Notice
to Appear fairly apply to petitioner, but not the BIA’s deter-
mination of the consequences if the allegations do apply.
3
Perez-Enriquez admitted to his conviction before the IJ and has never
asserted that he was not “inadmissible” if the date of his adjustment of sta-
tus is December 1, 1990.
4
The court held that § 1252(a)(2)(C) deprives it of jurisdiction to review
only a specific subset of the removal orders that might result from a
§ 1229 proceeding, namely those in which there is an administrative deter-
mination that the alien is removable on criminal grounds. 332 F.2d at
1251.
PEREZ-ENRIQUEZ v. GONZALES 7053
Neither side has cited a case or ruling that specifically
defines “adjustment of status.” In fact, the government’s
counsel at oral argument opined that the term could refer to
a number of changes in a person’s immigration status.
Petitioner argues that “adjustment of status” should refer to
the date on which he received lawful temporary residence
under the SAW provisions because that was the only time at
which he was required to make any representations. Thereaf-
ter, his adjustment to lawful permanent resident was auto-
matic, with the passage of time. He further points out that
pursuant to 8 U.S.C. § 1160(a)(3)(B) the Attorney General
could have denied his adjustment to permanent status before
he became eligible for adjustment to lawful permanent resi-
dent.
The government, in contrast, argues that the statute refers
to the date of Perez-Enriquez’s adjustment to lawful perma-
nent resident. It argues that the SAW provisions contained
two steps and that petitioner was convicted prior to his adjust-
ment to lawful permanent resident. Although the Attorney
General was authorized by 8 U.S.C. § 1160(a)(3)(B) to deny
adjustments, in light of the purposes of the SAW provisions,
the large number of participants, and the limited period of
time involved, the Attorney General could not be expected to
investigate all interim developments prior to the adjustment
date of December 1, 1990. The government further argues,
citing Matter of Jimenez-Lopez, 20 I & N Dec. 738 (BIA
1993), that the adjustment to lawful permanent resident was
not a new determination of admission into the United States,
and therefore, not a waiver of his prior conviction.5
5
We are here concerned only with the definition of “adjustment of sta-
tus” as that term is used in 8 U.S.C. § 1227(a)(1)(A), and accordingly, do
not address other terms such as “entry” or “date of admission.” As the BIA
noted in Jimenez-Lopez, “entry” may have a very different definition than
“adjustment of status.” 20 I & N Dec. At 742-43. Similarly, in Shivara-
man, we found that Shivaraman had only one “date of admission,” even
though he had several adjustments of his immigration status. 360 F.3d at
1146.
7054 PEREZ-ENRIQUEZ v. GONZALES
[1] For several reasons, we agree that the statute refers to
the date of Perez-Enriquez’s adjustment to lawful permanent
resident. The SAW provisions applied to numerous aliens
who were in the United States illegally, and set forth a two-
step process for adjustment to permanent resident status. The
first step allowed these aliens to alert the government to their
presence without penalty — they were granted temporary res-
ident status. At the time of the application, the government
presumably had no knowledge of the individual alien, other
than what he or she set forth in the application. The time
between the adjustment to temporary resident and the auto-
matic adjustment to permanent resident gave the government
some time to investigate the applications. Accordingly, to the
extent that a determination of “adjustment of status” gives an
alien some additional procedural or substantive rights against
any effort by the government to deport him or her, it makes
sense to use the date of adjustment to permanent resident,
even though the adjustment is automatic.
The use of the date of adjustment to permanent resident is
consistent with the BIA’s decision in Jimenez-Lopez. Unlike
petitioner, Jimenez left the country after filing an application
under the SAW provisions, and was paroled into the country
when he was stopped at the border in a vehicle containing
marijuana. Nonetheless, the BIA specifically held that exclu-
sion proceedings were proper against Jimenez even though
the Attorney General failed to take any action prior to Decem-
ber 1, 1990, and even though Jimenez’s status had been auto-
matically adjusted to permanent resident on December 1,
1990. Jimenez-Lopez, 20 I & N Dec. at 741-42.6
6
The BIA noted that the statutory language allowing the Attorney Gen-
eral to act prior to the automatic adjustment to permanent resident “is per-
missive in nature only,” and “does not mandate an examination of a lawful
temporary resident’s admissibility before the adjustment to permanent sta-
tus.” 20 I & N Dec. at 742. It further noted that the shortness of time may
have made it impossible for the service to terminate temporary residence
before the automatic adjustment. Id.
PEREZ-ENRIQUEZ v. GONZALES 7055
[2] Furthermore, using the date of adjustment to lawful per-
manent resident is consistent with the fact that the benefits
accorded a lawful permanent resident are far broader than
those accorded a temporary resident. Congress instructed the
agency to administer the two-step process for obtaining lawful
residence under the SAW provisions. The IJ determined that
in line with the benefits accruing from lawful permanent resi-
dence, “adjustment of status” as used in 8 U.S.C.
§ 1227(a)(1)(A) should refer to the date of adjustment of sta-
tus to permanent resident. We find this determination persua-
sive.
III
[3] Perez-Enriquez was charged pursuant to 8 U.S.C.
§ 1227(a)(1)(A) with being “an alien who at the time of
adjustment of status” was inadmissible because he had been
convicted of a state violation relating to a controlled sub-
stance. Pursuant to 8 U.S.C. § 1252(a)(2)(C), this court’s
jurisdiction is limited to determining whether this charge
applies to petitioner as a matter of law and fact. We agree
with the IJ that “time of adjustment of status” refers to the
date of Perez-Enriquez’s automatic adjustment to lawful per-
manent resident. Accordingly, petitioner is fairly subject to
the charge and his petition for review is DISMISSED.