FILED
NOT FOR PUBLICATION FEB 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SANTOS RONALD BACA, No. 07-70793
Petitioner, Agency No. A077-872-069
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2010
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and SEDWICK, **
District Judge.
Santos Ronald Baca is a native and citizen of Nicaragua. He petitions for
review of the Board of Immigration Appeals’ (“BIA”) affirmance of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
Immigration Judge’s (“IJ”) denial of his application for adjustment of status under
Section 202 of the Nicaraguan and Central American Relief Act of 1997
(NACARA), Pub. L. No. 105-100, 111 Stat. 2193-2201 (Nov. 19, 1997), amended
by Pub. L. No. 105-139, 111 Stat. 2644-45 (Dec. 2, 1997). We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(2)(B). We review the BIA’s determinations of
purely legal questions de novo. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002). We review claims of constitutional violations de novo. Torres-Aguilar v.
INS, 246 F.3d 1267, 1271 (9th Cir. 2001). We deny in part, grant in part, and
remand the petition for further proceedings.
In his hearing before the IJ, Baca admitted to the government’s allegation in
the Notice to Appear that he entered the United States without inspection on
September 12, 1994. The government did not move to amend the Notice to Appear,
nor did it dispute the stated date of entry. AR 59-60, 103-05. The BIA denied
Baca’s application for special rule cancellation of removal under NACARA § 202,
finding that he had not established commencement of physical presence in the
United States prior to December 1, 1995, because he could not produce
contemporaneous government-issued documentation of his entry, as required by
the statute. NACARA § 202(b)(2), 8 C.F.R. § 245.13(e)(3). Our recent decision in
Hakopian v. Mukasey, 551 F.3d 843 (9th Cir. 2008), holds that “[a]llegations in a
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complaint are considered judicial admissions. In immigration proceedings, the
Notice to Appear serves the same function as a civil complaint.” Id. at 846 (citing
Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988)). We further
concluded in Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009), that where “the
government alleges an alien’s arrival date in the Notice to Appear, and the alien
admits the government’s allegation before the IJ, the allegations are considered
judicial admissions ‘rendering the arrival date undisputed.’” Id. at 1073 (citing
Hakopian, 551 F.3d at 846) (brackets omitted). We therefore remand for the BIA
to consider in the first instance whether Baca is entitled to relief under NACARA §
202 in light of Hakopian and Cinapian.
The record does not support a conclusion that the IJ violated Baca’s
constitutional right to due process by refusing to allow him or a witness to testify
that he began residence in the United States prior to December 1, 1995. The
hearing transcripts reveal no instance in which the IJ failed to do so. Moreover,
Baca was afforded a “reasonable opportunity to present evidence on his behalf.”
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
To the extent that we understand the argument, Baca contends that 8 C.F.R.
§ 245.13(e)(3) is ultra vires, because NACARA § 202 does not require that an
applicant use government documents to show commencement of physical
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presence. It is well-established, however, that under Chevron U.S.A. v. Natural
Res. Def. Council, 467 U.S. 837 (1984), the agency’s interpretation is “given
controlling weight” unless it is “arbitrary, capricious, or manifestly contrary to the
statute.” Id. at 844. The agency concluded that government documents are
necessary to provide “reliable and readily verifiable means of documenting such
physical presence.” Adjustment of Status for Certain Nationals of Nicaragua and
Cuba, 65 Fed. Reg. 15846-01, 15849 (March 24, 2000) (to be codified at 8 C.F.R.
§ 245). Therefore it imposed the government-issued document requirement.
Because this requirement is not “arbitrary, capricious, or manifestly contrary to the
statute,” Chevron, 467 U.S. at 844, § 245.13 is not ultra vires.
Baca’s argument that NACARA § 202 and 8 C.F.R. § 245.13(e)(3) violate
equal protection by drawing an arbitrary line between applicants who commenced
their physical presence in the United States prior to December 1, 1995 but have no
government-issued proof, and those who do, lacks merit. “‘Line-drawing’
decisions made by Congress or the President in the context of immigration and
naturalization must be upheld if they are rationally related to a legitimate
government purpose.’” Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-64
(9th Cir. 2002) (quoting Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001)). We
conclude that the statute and regulation serve a rational purpose of ensuring
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“reliable and readily verifiable means of documenting such physical presence.”
Adjustment of Status for Certain Nationals of Nicaragua and Cuba, 65 Fed. Reg.
15846-01, 15849 (March 24, 2000) (to be codified at 8 C.F.R. § 245).
PETITION GRANTED in part; DENIED in part; REMANDED for
further proceedings.
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