United States Court of Appeals
For the First Circuit
No. 11-1175
JULIO GONZALEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Vikas S. Dhar, Dhar Law, LLP, on brief for petitioner.
Carmel A. Morgan, Trial Attorney, United States Department of
Justice, Civil Division, Office of Immigration Litigation, Tony
West, Assistant Attorney General, Civil Division, and Jennifer P.
Levings, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
March 14, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
STAHL, Circuit Judge. Julio Gonzalez is a native and
citizen of Guatemala who has petitioned for our review of the
denial of his application for special rule cancellation of removal
under the Nicaraguan Adjustment and Central American Relief Act
(NACARA). See Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201
(1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). We
agree with the Immigration Judge (IJ) and the Board of Immigration
Appeals (BIA) that Gonzalez is statutorily ineligible for NACARA
relief because he last entered the United States as a crewman. We
therefore deny the petition for review.
Congress enacted NACARA in 1997 to amend the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) and permit individuals from certain countries to seek
discretionary relief from removal or deportation under more lenient
statutory standards that predated IIRIRA. See, e.g., Gonzalez-
Ruano v. Holder, 662 F.3d 59, 60 (1st Cir. 2011). Specifically,
section 203 of NACARA allows individuals from Guatemala to apply
for what is known as "special rule" cancellation of removal. See
NACARA § 203, 111 Stat. at 2196-99; 8 C.F.R. §§ 1240.64-1240.66.
An applicant for special rule cancellation of removal must satisfy
a number of requirements that we need not detail here, because this
case presents the discrete question of whether Gonzalez is barred
from NACARA relief because he last entered the United States as a
crewman. Under section 240A(c) of the Immigration and Nationality
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Act (INA), an individual "who entered the United States as a
crewman subsequent to June 30, 1964" is ineligible for cancellation
of removal. 8 U.S.C. § 1229b(c)(1).
Though neither party has addressed whether any portion of
Gonzalez's appeal is foreclosed by the jurisdiction-stripping
provision codified at 8 U.S.C. § 1252, we must do so sua sponte.
See, e.g., Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir. 2011).
Special rule cancellation of removal applications under NACARA are
subject to 8 U.S.C. § 1252(a)(2)(B)(i), which bars judicial review
of "'any judgment regarding the granting of relief' relative to
cancellation of removal." Gonzalez-Ruano, 662 F.3d at 63 (quoting
8 U.S.C § 1252(a)(2)(B)(i)); see also NACARA § 203, 111 Stat. at
2198. We retain jurisdiction to review "constitutional claims or
questions of law," 8 U.S.C. § 1252(a)(2)(D), but "cannot review
discretionary determinations regarding requests for special rule
cancellation of removal under NACARA, absent legal or
constitutional error," Gonzalez-Ruano, 662 F.3d at 63.
In his petition for review, Gonzalez raises three
challenges to the agency's denial of his application for special
rule cancellation of removal. First, he argues that he did not
meet the statutory definition of a "crewman" at the time he last
entered the United States. Second, he claims that the agency did
not give him proper notice of, or an opportunity to respond to, the
allegation that he had last entered as a crewman. Third, he urges
us to find that, even if he did qualify as a crewman at the time of
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his last entry, barring him from NACARA relief contravenes
congressional intent. With one possible exception, which we
discuss below, the issues Gonzalez has presented for our review are
questions of law that fall within our jurisdiction. Id.
Where, as here, "the BIA has conducted an independent
evaluation of the record and rested its decision on a
self-generated rationale," we focus our review on the decision of
the BIA, rather than the decision of the IJ. Zhou Zheng v. Holder,
570 F.3d 438, 440 (1st Cir. 2009). We review the BIA's legal
conclusions de novo, giving deference to the agency's reasonable
interpretation of the statutes and regulations within its purview.
Castañeda-Castillo v. Holder, 638 F.3d 354, 362 (1st Cir. 2011).
We begin with Gonzalez's claim that he did not qualify as
a "crewman" under the INA when he last entered and thus should not
have been barred from NACARA relief. The INA contains two
definitions of "crewman." The first describes a crewman as "a
person serving in any capacity on board a vessel or aircraft." 8
U.S.C. § 1101(a)(10). The second defines an "alien crewman" as an
individual "serving in good faith as such in a capacity required
for normal operation and service on board a vessel . . . who
intends to land temporarily and solely in pursuit of his calling as
a crewman and to depart from the United States with the vessel or
aircraft on which he arrived or some other vessel or aircraft." 8
U.S.C. § 1101(a)(15)(D)(i). The BIA reads these two definitions
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"in conjunction when construing the crewman provision," Matter of
Loo, 15 I. & N. Dec. 601, 603 (BIA 1976), and "examine[s] an
alien's visa and the circumstances surrounding his entry into the
United States to determine if he entered as a crewman," Matter of
G-D-M-, 25 I. & N. Dec. 82, 85 (BIA 2009). "If it is apparent
. . . that the alien was issued a visa as a crewman and entered the
United States in pursuit of his occupation as a seaman, then he is
to be regarded as an alien crewman." Id. We defer to that
reasonable interpretation of the INA. Castañeda-Castillo, 638 F.3d
at 362.
Gonzalez first entered the United States without
inspection on October 15, 1988. In what appears to have been 1995,
he left the United States and returned to Guatemala. He then
reentered the United States in 1997. The Notice to Appear (NTA)
that the Department of Homeland Security (DHS) issued to Gonzalez
in February 2008 alleged that he had last been admitted to the
United States "on or about February 1, 1997 as a nonimmigrant alien
in transit with authorization to remain in the United States for a
temporary period not to exceed March 2, 1997." Before the IJ,
however, the government submitted into evidence Form I-213,
entitled "Record of Deportable Alien," which alleged that Gonzalez
had last entered on March 2, 1997 in Los Angeles, California,
aboard the cruise ship "Ms. Jubilee." According to the form,
Gonzalez arrived aboard the Jubilee at 7:00 a.m. on March 2, his
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name was on the list of crewmen, and he was granted D-1 status1 by
the immigration inspector. That evening, as the vessel was about
to set sail, "it was noticed that [Gonzalez] was not present at his
duty station," and he was reported to U.S. immigration officials as
a deserted crewman. The government also submitted a copy of
Gonzalez's D-1 visa, which listed March 2, 1997 as his last date of
entry in Los Angeles, aboard the Jubilee.
Furthermore, Gonzalez stated in a brief submitted in
advance of his merits hearing before the IJ that he had last been
admitted to the United States as a crewman. At the hearing itself,
he testified that when he returned to the United States in 1997, it
was with a "crew member's visa," that he was a crewman at the time
that he last entered, and that he was working aboard a cruise ship.
He said that he "decided at the last minute to stay" in the United
States because he became "ill inside the boat." Gonzalez also
testified that he has not left the United States since then.
Based on that testimony and documentary evidence, the BIA
concluded that, after initially being admitted to the United States
on February 1, 1997 on a C-1 visa2 as a nonimmigrant in transit,
1
A "D-1" classification is given to "an alien crewman . . .
who intends to land temporarily and solely in pursuit of his
calling as a crewman and to depart from the United States with the
vessel or aircraft on which he arrived or some other vessel or
aircraft." 8 U.S.C. § 1101(a)(15)(D)(i); see also 8 C.F.R.
§ 214.1(a)(2).
2
A "C-1" classification is given to "an alien in immediate
and continuous transit through the United States." 8 U.S.C.
§ 1101(a)(15)(C); see also 8 C.F.R. § 214.1(a)(2).
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Gonzalez had most recently reentered the country with a D-1
crewman's visa on March 2, 1997 to seek medical care and has
remained here ever since.
Gonzalez now claims that his last entry occurred in
February 1997 with a C-1 visa, which he views as insufficient to
bar him from NACARA relief. We need not decide whether we have
jurisdiction to review Gonzalez's quarrel with the BIA's factual
determination that he last entered the United States specifically
with a D-1 visa in March 1997. See Ayeni v. Holder, 617 F.3d 67,
72 (1st Cir. 2010) (finding, in a regular cancellation of removal
case, no jurisdiction over a claim that "comprises nothing more
than a challenge to the correctness of the BIA's factfinding"). We
can disregard that claim entirely, because the BIA has never ruled,
as Gonzalez suggests, that the particular type of visa with which
a person enters is outcome-determinative. See Matter of G-D-M-, 25
I. & N. Dec. at 85-86 (respondent admitted as C-1 nonimmigrant in
transit qualified as crewman); Matter of Campton, 13 I. & N. Dec.
535, 538 (BIA 1970) (respondent admitted as B-2 nonimmigrant
visitor for pleasure qualified as crewman); Matter of Goncalves, 10
I. & N. Dec. 277, 278-79 (BIA 1963) (respondent admitted as C-1
nonimmigrant in transit qualified as crewman); Matter of Tzimas, 10
I. & N. Dec. 101, 101-02 (BIA 1962) (same); see also Sarup v. Att'y
Gen. of U.S., 423 F. App'x 231, 234 (3d Cir. 2011) (same).
Indeed, the BIA has explicitly rejected the "contention
that only aliens who were legally admitted in the status of crewmen
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are barred from relief." Matter of Goncalves, 10 I. & N. Dec. at
279. Instead, the agency has examined the circumstances
surrounding an individual's entry, in addition to the type of visa
with which he entered, to determine whether he should be classified
as a crewman. See Matter of G-D-M-, 25 I. & N. Dec. at 85. We
agree with that approach, under which it was "apparent" that
Gonzalez "was issued a visa as a crewman and entered the United
States in pursuit of his occupation as a seaman." Id. The BIA
therefore properly classified him as an "alien crewman."
Gonzalez's second argument is premised on a discrepancy
between the NTA, which alleged that he had last entered the country
as a nonimmigrant in transit in February 1997, and the Record of
Deportable Alien, submitted at his merits hearing, which alleged
that he had entered in March 1997 as a D-1 crewman. Gonzalez
claims that the government violated 8 C.F.R. §§ 1003.30 and
1240.10(e) by failing to notify him until his removal hearing of
what he describes as the "additional critical factual allegation"
that he had last entered as a crewman. See 8 C.F.R. § 1003.30
(requiring, in removal proceedings, that any "additional or
substituted charges of deportability" be lodged in writing, read to
the respondent by the IJ, and that the respondent be given an
opportunity to respond to those charges); id. § 1240.10(e) (same).
Though it might have been preferable for DHS to amend the
factual allegations in the NTA, its failure to do so did not
deprive Gonzalez of notice of any "additional or substituted
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charges of deportability" against him, 8 C.F.R. § 1003.30, because
his status as a crewman was not the basis for DHS's allegation that
he was removable. As the NTA made clear, Gonzalez's removability
was predicated upon the fact that he had remained in the country
for longer than permitted. See 8 U.S.C. § 1227(a)(1)(B). In a
written pleading filed with the immigration court, Gonzalez
conceded that he was removable on that ground. Whether he
specifically entered as a crewman was only relevant to his
application for special rule cancellation of removal because of the
statutory bar in section 240A(c) of the INA, see 8 U.S.C.
§ 1229b(c)(1), and the burden was on Gonzalez to prove by a
preponderance of the evidence that he was eligible for that status,
see 8 C.F.R. § 1240.64(a).
Furthermore, the agency did notify Gonzalez in advance of
his merits hearing that he was statutorily ineligible for special
rule cancellation of removal. In a February 2008 letter referring
his NACARA application to the IJ, U.S. Citizenship and Immigration
Services (USCIS) informed Gonzalez that he appeared to be barred
from relief by section 240A(c). In a pre-hearing brief submitted
to the IJ, Gonzalez both acknowledged receipt of that letter and
admitted that he had last entered as a crewman. At the hearing, he
agreed to the admission of the Record of Deportable Alien and had
an opportunity to challenge its contents. We therefore find no
merit to Gonzalez's claim that he was denied notice of, or an
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opportunity to respond to, DHS's allegation that he was ineligible
for special rule cancellation of removal.
Gonzalez's third and final argument is that, even if he
last entered the United States as a crewman, it contravenes
congressional intent to exclude him from NACARA relief. This
argument has two prongs. First, Gonzalez claims that section
240A(c) of the INA was only intended to preclude from relief, in
his words, "an alien who entered as a crewman prior to establishing
eligibility for relief." Thus, Gonzalez argues, DHS should have
granted his application for special rule cancellation of removal,
because, but for his status as a crewman, he says "it is not
disputed" that he was otherwise eligible for NACARA relief when he
reentered the United States in 1997.
However, the government in fact vigorously disputes
whether Gonzalez satisfied the other NACARA eligibility
requirements at the time he reentered in 1997.3 More importantly,
the statute simply does not contain any exceptions. It plainly
precludes from relief any alien "who entered the United States as
a crewman subsequent to June 30, 1964." 8 U.S.C. § 1229b(c)(1).
We cannot rewrite the statute. See, e.g., Sony BMG Music Entm't v.
Tenenbaum, 660 F.3d 487, 500 (1st Cir. 2011).
3
Among other things, the government notes that Gonzalez
reentered in March 1997, and NACARA was not enacted until November
1997. See NACARA § 203, 111 Stat. at 2198 (enacted Nov. 19, 1997).
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Second, Gonzalez claims that Congress cannot have
intended what he describes as the "absurd" policy result here: he
might have been eligible for NACARA relief if he had entered the
country illegally in 1997 but is ineligible because he was lawfully
admitted as a crewman. But that appears to be precisely the result
Congress intended. Section 240A(c) bars crew members because of
the relative ease with which they can enter the country. In Matter
of Goncalves, the BIA examined the relevant legislative history and
determined that Congress intended "to bar all occupational seamen
who entered by reason of their occupation" to address the problem
of "seamen[,] who have relatively easy access to the United
States[,]" using "the seaman route to enter the United States for
permanent residence." 10 I. & N. Dec. at 279; see also, e.g.,
Matter of Loo, 15 I. & N. Dec. at 603. "Our job is to effectuate
the intent expressed in the plain language Congress has chosen, not
to effectuate purported policy choices regardless of language." In
re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 564 F.3d
75, 80 (1st Cir. 2009).
Finding no legal or constitutional error requiring
reversal, see Gonzalez-Ruano, 662 F.3d at 63, we deny the petition
for review.
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