Moreno-Mornate v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MACARIO MORENO-MORANTE, 
Petitioner, No. 05-75376
v.
 Agency No.
A97-476-013
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 18, 2007—San Francisco, California

Filed June 21, 2007

Before: Betty B. Fletcher, Eugene E. Siler, Jr.,* and
Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.

7497
7500 MORENO-MORANTE v. GONZALES
COUNSEL

Cesar Luna, Luna & Associates, San Diego, California, for
the petitioner.

Bryan Beier (argued) and Luis E. Perez (briefed), Department
of Justice, Office of Immigration Litigation, Washington,
D.C., for the respondent.

OPINION

HAWKINS, Circuit Judge:

We address a question of first impression: does a United
States citizen grandchild, in the lawful custody of non-citizen
grandparents, meet the statutory definition of “qualifying rela-
tive” for the purpose of cancellation of removal? Grandparent
Macario Moreno-Morante (“Moreno”) seeks review of the
Board of Immigration Appeals’s (“BIA”) adoption and affir-
mance of an Immigration Judge’s (“IJ”) denial of his applica-
tion for cancellation of removal, concluding that Moreno
lacked qualifying relatives for purposes of the hardship deter-
mination and rejecting the contention that Moreno’s U.S. citi-
zen grandchildren should qualify in light of his legal
guardianship, custody, and pending adoption of them. We
have jurisdiction under 8 U.S.C. § 1252 and deny Moreno’s
petition.1
1
The government contends Moreno did not exhaust his statutory
argument—that his grandchildren meet 8 U.S.C. § 1101(b)(1)(F)(i)’s defi-
nition of “child”—before either the IJ or BIA and, accordingly, that this
court lacks jurisdiction to consider this claim. Although Moreno never
made this precise statutory argument in the proceedings below, he did
raise his general argument that his grandchildren should be considered
qualifying relatives for purposes of cancellation of removal.
Although Moreno’s specific argument before the IJ and BIA focused on
his de facto parent-child relationship with his grandchildren, this argument
 MORENO-MORANTE v. GONZALES 7501
FACTS AND PROCEDURAL HISTORY

On November 25, 2003, Moreno, a native and citizen of
Mexico, was appointed the legal guardian of his five U.S. citi-
zen minor grandchildren. Moreno alleges his grandchildren
were abused physically and emotionally by their natural
mother and respective natural fathers. In addition, he contends
both fathers are now absent and the mother has been removed
to Mexico due to the domestic violence issues involving her
children. Although he did not become a guardian until
November 2003, Moreno contends he and his spouse have
always played a major role in raising their grandchildren, who
have lived with Moreno on a permanent basis since 2002.

More than a month before Moreno was appointed guardian,
the Department of Homeland Security (“DHS”) issued a
Notice to Appear charging Moreno with removability under
section 212(a)(6)(A)(i) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who
was present in the United States without having been admitted
or paroled. At his initial hearing on January 9, 2004, Moreno
conceded removability, contesting only the alleged date of
entry. Moreno also applied for cancellation of removal pursu-
ant to 8 U.S.C. § 1229(b)(1) and, in the alternative, voluntary
departure. Moreno sought and obtained a continuance so he
could determine whether his court-ordered custody of his
grandchildren constituted a formal adoption, possibly render-
ing them qualifying relatives for purposes of cancellation.

“was sufficient to put the BIA on notice” that § 1101(b)(1)’s definition of
“child” for cancellation of removal purposes was contested, and the
agency therefore had “an opportunity to pass on this issue.” Zhang v. Ash-
croft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam). Moreno’s failure to
elaborate on his general contention with a specific statutory argument is
therefore immaterial for jurisdiction purposes. See Kaganovich v. Gon-
zales, 470 F.3d 894, 897 (9th Cir. 2006) (“Petitioner’s failure to elaborate
on the argument in his brief to the BIA is immaterial to our jurisdiction.”).
7502 MORENO-MORANTE v. GONZALES
At a second hearing the following month, Moreno
requested and was granted a second continuance to consult
with DHS about the possibility of an administrative closure of
the removal proceeding in light of Moreno’s intent and ongo-
ing efforts to formally adopt his grandchildren.

During the final hearing on April 8, 2004, Moreno’s coun-
sel indicated he had been unable to speak with DHS about
closing the removal proceedings and indicated that Moreno’s
adoption of his grandchildren was still six to twelve months
from completion. DHS informed the IJ that, after considering
the merits of Moreno’s case, it had decided not to exercise its
discretion to administratively close the removal proceedings.

The IJ issued an oral decision: (1) denying Moreno’s
request for administrative closure because the government
had opted not to exercise its discretion to close the proceed-
ings; (2) pretermitting Moreno’s application for cancellation
of removal because he had no “qualifying relative” insofar as
his adoption of his grandchildren was not yet complete; and
(3) granting Moreno’s unopposed request for voluntary depar-
ture.

Moreno appealed to the BIA, arguing his grandchildren
“should be deemed qualifying relatives similar to ‘children’
for cancellation purposes” because “he holds permanent and
undisputed legal custody and guardianship” of them. The BIA
adopted and affirmed the IJ’s decision regarding “[Moreno’s]
failure to establish a qualifying relative for cancellation of
removal” and specifically rejected his request for a remand to
the IJ to allow Moreno “to conclude the adoption process of
his [U.S.] citizen grandchildren in order to be eligible for can-
cellation of removal.”

STANDARD AND SCOPE OF REVIEW

Where, as here, the BIA affirms the IJ pursuant to Matter
of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and does not
 MORENO-MORANTE v. GONZALES 7503
express disagreement with any part of the IJ’s decision, the
BIA effectively adopts the IJ’s decision in its entirety. See
Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en
banc). Unlike a streamlined summary affirmance, which sig-
nifies only that the result the IJ reached was correct and any
errors were harmless or nonmaterial, a Burbano affirmance
signifies that the BIA has conducted an independent review of
the record and has determined that its conclusions are the
same as those articulated by the IJ. See id. & 1040 n.3. In this
case, because the BIA adopted the IJ’s decision, and
expressed no disagreement with it, we review the IJ’s decision
as if it were the BIA’s. Id. at 1039-40.

We review purely legal determinations de novo. See
Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir.
2002). Although the agency’s interpretation of immigration
laws is entitled to deference, such deference is required only
“after we determine that a statute is ambiguous.” Kankamal-
age v. INS, 335 F.3d 858, 862 (9th Cir. 2003).

DISCUSSION

[1] To be eligible for cancellation of removal, a non-
permanent resident must establish, inter alia, that “removal
would result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent res-
idence.” 8 U.S.C. § 1229b(b)(1)(D) (emphasis added).
Moreno does not claim to have a qualifying spouse or parent,
but contends that each of his grandchildren qualifies as a
“child” under the statute.

“Child,” for purposes of cancellation of removal, is defined
by 8 U.S.C. § 1101(b)(1). Montero-Martinez, 277 F.3d at
1145. Moreno first argues that his grandchildren qualify under
this statute because they are orphans as defined by
§ 1101(b)(1)(F)(i). Alternatively, Moreno argues that his
grandchildren are “de facto” children in light of his legal
7504 MORENO-MORANTE v. GONZALES
guardianship and custody. Neither argument is supported by
—or permissible under—the law.

I. “Child” Under 8 U.S.C. § 1101(b)(1)(F)(i)

Our starting point for any issue of statutory construction is
the plain language of the statute. Engine Mfrs. Ass’n v. S.
Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004). If
the language in question has an unambiguous meaning, our
inquiry must cease. Montero-Martinez, 277 F.3d at 1141.
Here, the plain language at issue is unambiguous, and More-
no’s grandchildren do not satisfy its express terms.

[2] In § 1101(b)(1), Congress defines “child” for purposes
of cancellation of removal as “an unmarried person under
twenty-one years of age” falling within at least one of several
enumerated categories, including: children born out of wed-
lock, certain stepchildren, legitimate children, certain adopted
children (and their siblings), and certain orphans. 8 U.S.C.
§ 1101(b)(1)(A)-(F). Moreno contends his grandchildren
qualify as orphans, as defined by § 1101(b)(1)(F)(i).

Section 1101(b)(1)(F)(i) states:2

(1) The term “child” means an unmarried person
under twenty-one years of age who is—

....

(F) (i) a child, under the age of sixteen at the time a
petition is filed in his behalf to accord a classifica-
tion as an immediate relative under section 201(b) [8
U.S.C. § 1151(b)],

who is an orphan because of the death or disappear-
ance of, abandonment or desertion by, or separation
2
Paragraph breaks and emphasis added for clarity and ease of reading.
 MORENO-MORANTE v. GONZALES 7505
or loss from, both parents, or for whom the sole or
surviving parent is incapable of providing the proper
care and has in writing irrevocably released the
child for emigration and adoption;

who has been adopted abroad by a United States cit-
izen and spouse jointly, or by an unmarried United
States citizen at least twenty-five years of age, who
personally saw and observed the child prior to or
during the adoption proceedings; or

who is coming to the United States for adoption by
a United States citizen and spouse jointly, or by an
unmarried United States citizen at least twenty-five
years of age, who have or has complied with the pre-
adoption requirements, if any, of the child’s pro-
posed residence:

Provided, That the Attorney General is satisfied that
proper care will be furnished the child if admitted to
the United States: Provided further, That no natural
parent or prior adoptive parent of any such child
shall thereafter, by virtue of such parentage, be
accorded any right, privilege, or status under this Act
....

[3] Moreno contends his grandchildren must be deemed
“orphans” by virtue of their abandonment by and legal separa-
tion from their natural parents. However, even accepting the
alleged abandonment and legal separation as true, Moreno’s
grandchildren do not satisfy § 1101(b)(1)(F)(i)’s require-
ments. By its plain language § 1101(b)(1)(F)(i) applies only
to a child for whom “a classification as an immediate relative
under [8 U.S.C. § 1151(b)]” is sought. It is uncontested that
no petitions for classification as an “immediate relative”
under § 1151(b) have been filed on Moreno’s grandchildren’s
behalf. Nor would such a petition be appropriate here. More-
no’s grandchildren are U.S. citizens themselves, whereas
7506 MORENO-MORANTE v. GONZALES
§ 1151(b) confers “immediate relative” status to the “children,
spouses, and parents” of U.S. citizens.

[4] As is plain from the subsequent clauses in the statute,
§ 1101(b)(1)(F)(i)’s purpose is to confer “child” status to for-
eign children being adopted by U.S. citizens, permitting adop-
tive parents to obtain immigration visas for their foreign
adoptees. See, e.g., Matter of Rodriguez, 18 I. & N. Dec. 9,
11 (BIA 1980) (granting visa petition to child born in Peru
because he qualified as an immediate relative orphan). More-
no’s petition presents the precisely opposite situation: a non-
citizen seeking to adopt U.S. citizen children. Simply put,
§ 1101(b)(1)(F)(i), by its plain unambiguous language, is
wholly inapplicable to Moreno’s grandchildren.3 As such,
they do not meet the definition of “child” under this subsec-
tion and, absent some other basis, Moreno lacks the requisite
qualifying relative to permit cancellation of his removal.4

Finally, as the IJ held, that Moreno “may have an outstand-
ing petition for adoption pending . . . does not equate with the
conclusion that [he] is the parent of a United States citizen.”
Had Moreno completed the adoption process, his grandchil-
dren (or at least some of his grandchildren) could have met
the definition of “child” under § 1101(b)(1)(E)(i) if Moreno
were able to show the children had been in his legal custody
and resided with him for at least two years or had been “bat-
tered or subject to extreme cruelty by the adopting parent or
3
Even if § 1101(b)(1)(F)(i) were somehow applicable to Moreno’s situ-
ation (which it is not), it is beyond dispute that none of his grandchildren
meet any of the statute’s requirements. The grandchildren’s parents have
not “in writing irrevocably released the child for emigration and adop-
tion.” Neither have any of the grandchildren “been adopted abroad by a
United States citizen.” Nor are they “coming to the United States for adop-
tion by a United States citizen.”
4
We recently held that a grandchild does not qualify as a “child” under
§ 1101(b)(1) for § 1229b(b)(1)(D) purposes in an unpublished decision.
Ayala-Hernandez v. Gonzales, No. 05-77077, 2007 U.S. App. LEXIS
4392 at *2 (9th Cir. Feb. 23, 2007).
 MORENO-MORANTE v. GONZALES 7507
by a family member of the adopting parent residing in the
same household.” However, Moreno had not completed the
adoption process at the time of his removal proceedings, and
we are aware of no law permitting an IJ or the BIA to stay
removal proceedings pending an adoption without the govern-
ment’s consent.5

II. De Facto “Child”

Alternatively, Moreno argues that his grandchildren should
be considered qualifying relatives for purposes of cancellation
of removal by virtue of his legal custody and guardianship of
them. Specifically, Moreno argues that, “[b]y applying the
plain reading of the law in requiring a full adoption, the
[Attorney General] seeks to rupture a de[ ]facto parent-child
relationship” and that “[s]uch an absurd result goes contrary
to the general intent of immigration laws in keeping families
together and protecting the interests of United States citi-
zens.” Although Moreno’s arguments rightly engender sym-
pathy, they do not render the government’s position unlawful
or the IJ’s decision erroneous.

[5] Section 1229b(1)(D) simply does not contemplate the
cancellation of removal based on the hardship to be suffered
by a “de facto” child. Rather, cancellation of removal is
appropriate only if the detailed statutory definition of “child”
is met. The Supreme Court made this point explicit more than
twenty years ago with respect to § 1229b’s substantially simi-
lar predecessor statute: “suspension of deportation” under for-
mer INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994). See INS
v. Hector, 479 U.S. 85 (1986) (per curiam).

In Hector, the Supreme Court reversed a Third Circuit deci-
5
At oral argument, Moreno’s counsel indicated Moreno had suspended
his efforts to adopt his grandchildren, not wanting to permanently termi-
nate his daughter’s parental rights in the hope that she would rehabilitate
herself and regain custody.
7508 MORENO-MORANTE v. GONZALES
sion granting a petition due to the BIA’s failure to give “suffi-
cient consideration to whether Hector’s relationship with her
nieces was the functional equivalent of a parent-child relation-
ship” and, if so, whether her nieces would suffer the requisite
hardship warranting suspension of deportation. Id. at 87-88.
In so holding, the Third Circuit relied on Tovar v. INS, 612
F.2d 794 (3d Cir. 1980), an earlier case holding that the BIA
must consider hardship to an alien’s grandchild when their
relationship resembles a parent-child relationship.

Finding “the plain language of the statute . . . compelling,”
the Supreme Court held that the BIA “is not required . . . to
consider the hardship to a third party other than a spouse, par-
ent, or child, as defined by [statute].” Hector, 479 U.S. at 88.6
The Court observed that “Congress has specifically identified
the relatives whose hardship is to be considered, and then set
forth unusually detailed and unyielding provisions defining
each class of included relatives” and further noted that “[t]he
statutory definition of the term ‘child’ is particularly exhaus-
tive.” Id.

The Court acknowledged that, although “it could be argued
that the line [with respect to who qualifies as a ‘child’] should
have been drawn at a different point,” such “policy questions
[are] entrusted exclusively to the political branches of our
Government.” Id. at 89 (internal quotations omitted). Accord-
ingly, the Court concluded that, “even if Hector’s relationship
with her nieces closely resembles a parent-child relationship,
. . . Congress, through the plain language of the statute, [has]
precluded this functional approach to defining the term
‘child.’ ” Id. at 90 (footnote omitted).7
6
We reached a similar conclusion, rejecting the Third Circuit’s approach
several years before the Supreme Court weighed in. See Contreras-Buenfil
v. INS, 712 F.2d 401, 403 (9th Cir. 1983) (holding that an alien’s “step-
son” did not qualify as a “child” because the “stepchild” status was not
created by marriage, as required by the statute).
7
In so holding, the Court examined the legislative history of the statute,
noting that “Congress has shown its willingness to redefine the term
 MORENO-MORANTE v. GONZALES 7509
[6] Although Hector analyzed 8 U.S.C. § 1229b’s pre-
decessor statute—the now-repealed 8 U.S.C. § 1254(a)—the
relevant provisions in the two statutes are virtually identical.8
In enacting the somewhat more restrictive “cancellation of
removal” requirements under § 1229b, Congress specifically
noted its changes were prompted by a weakening of the “sus-
pension of deportation” requirements through administrative
decisions.9 Congress accordingly amended the language it felt
had been misapplied—changing “extreme hardship” to “ex-
ceptional and extremely unusual hardship”—but chose to
leave the “spouse, parent, or child” language untouched,
apparently finding no similar error in the BIA’s and courts’
application of these terms. Furthermore, the “unusually
detailed” and “particularly exhaustive” definition of “child”
applicable to the former statute that so impressed the Supreme
Court, see Hector, 479 U.S. at 88, remains largely the same
in the modified version. If anything, it is now more detailed

‘child’ on a number of occasions, but it has not included nieces in that def-
inition or authorized [the Court] to adopt a functional definition.” Id.
(footnote omitted); see id. at 90 n.6. Neither has Congress expanded the
definition to include grandchildren.
8
Compare 8 U.S.C. § 1254(a) (1990) (“deportation would, in the opin-
ion of the Attorney General, result in extreme hardship to the alien or to
his spouse, parent, or child, who is a citizen of the United States . . . .”),
with 8 U.S.C. § 1229b (“removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child, who is
a citizen of the United States . . . .”).
9
See H.R. Rep. 104-828, at 213-14 (1996) (“The managers have deliber-
ately changed the required showing of hardship from ‘extreme hardship’
to ‘exceptional and extremely unusual hardship’ to emphasize that the
alien must provide evidence of harm to his spouse, parent, or child sub-
stantially beyond that which ordinarily would be expected to result from
the alien’s deportation. The ‘extreme hardship’ standard has been weak-
ened by recent administrative decisions . . . . Our immigration law and
policy clearly provide that an alien parent may not derive immigration
benefits through his or her child who is a United States citizen. The avail-
ability in truly exceptional cases of relief under section 240A(b)(1) must
not undermine this or other fundamental immigration enforcement poli-
cies.”) (emphasis added).
7510 MORENO-MORANTE v. GONZALES
and comprehensive. Compare 8 U.S.C. § 1101(b)(1) (1990),
with 8 U.S.C. § 1101(b)(1) (2000).

[7] Accordingly, Hector’s rationale appears equally appli-
cable to Moreno’s case and, in light of the unambiguous plain
language of the statutory definition, Congress has precluded
a “functional approach to defining the term ‘child.’ ” Hector,
479 U.S. at 90. As a result, Moreno’s de facto parent-child
relationship with his grandchildren is of no import, and the
IJ’s decision that Moreno’s grandchildren were not qualifying
relatives for purposes of cancellation of removal is entitled to
deference.

Though this result—separating five U.S. citizen children
from their grandfather, who appears to be their only loving
and stable source of care and support—may seem unduly
harsh and perhaps illogical, it is the result dictated by law.
Congress is of course free to correct any inequities resulting
from our application of its plain statutory language, as it has
done in the past.10

CONCLUSION

Moreno’s grandchildren thus do not meet the statutory defi-
nition of “child” for purposes of cancellation of removal. Nei-
ther do they qualify by virtue of his de facto parent-child
relationship with them because Congress has specifically pre-
cluded such a functional approach to defining the term “child”
for cancellation of removal purposes.

Accordingly, Moreno’s Petition for Review is DENIED.
10
See Hector, 479 U.S. at 90 n.7 (noting that Congress amended the
INA to overrule INS v. Phinpathy, 464 U.S. 183 (1984), which had
reached a seemingly harsh result regarding the “continuity of physical
presence” requirement dictated by Congress’s plain language); see also
supra note 9 and accompanying text.