FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL ANTONIO HERNANDEZ, No. 20-70158
AKA Manuel Antonio Hernandez,
Petitioner, Agency No.
A073-897-003
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 14, 2022
San Francisco, California
Filed June 27, 2022
Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit
Judges, and Christina Reiss, * District Judge.
Opinion by Judge Reiss
*
The Honorable Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
2 HERNANDEZ V. GARLAND
SUMMARY **
Immigration
Denying Manuel Antonio Hernandez’s petition for
review of a decision by the Board of Immigration Appeals
(“BIA”), the panel held that Hernandez’s previous grant of
special rule cancellation of removal and adjustment of status
to lawful permanent resident under section 203 of the
Nicaraguan Adjustment and Central American Relief Act
(“NACARA”) qualified as a cancellation of removal under
8 U.S.C. § 1229b, thus rendering him ineligible for a second
grant of cancellation of removal pursuant to 8 U.S.C.
§ 1229b(c)(6).
Hernandez first argued that § 1229b(c)(6)’s bar did not
apply to him because at the time he applied for and was
granted NACARA special rule cancellation of removal, he
had not been served a Notice to Appear, appeared before an
IJ, or had a final finding of removability entered against him,
and thus there was no removal to be cancelled. The panel
rejected this argument explaining that nothing in § 1229b or
NACARA requires removal proceedings to be initiated or
finalized as a precondition to cancellation.
The panel next rejected Hernandez’s argument that he
previously received only an adjustment of status, and not
cancellation of removal, concluding that a plain reading of
NACARA § 203 indicates a clear intent by Congress that
adjustment of status occurs if, and only if, cancellation of
removal is granted.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HERNANDEZ V. GARLAND 3
The panel also rejected Hernandez’s argument that
§ 1229b is merely a procedural vehicle through which
NACARA § 203(b) relief is granted, explaining that
NACARA incorporates substantive provisions of § 1229b as
well.
Finally, the panel wrote that even assuming arguendo
that it is ambiguous whether special rule cancellation of
removal under NACARA bars subsequent cancellation of
removal under § 1229b(c)(6), the BIA’s unpublished
decision in this case was entitled to Skidmore deference.
COUNSEL
Camille Wyss and Chelsea Muir (argued), Certified Law
Students; Judah Lakin (argued) and Amalia Wille,
Supervising Attorneys; University of California, Berkeley
School of Law, Berkeley, California; for Petitioner.
Liza S. Murcia (argued), Attorney; Abigail E. Leach, Trial
Attorney; Jeffery R. Leist, Senior Litigation Counsel;
Anthony C. Payne, Assistant Director; Brian M. Boynton,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4 HERNANDEZ V. GARLAND
OPINION
REISS, District Judge:
Petitioner Manuel Antonio Hernandez, a native and
citizen of El Salvador, petitions for review of a decision by
the Board of Immigration Appeals (“BIA”) dismissing his
appeal of the Immigration Judge’s (“IJ”) decision
pretermitting his application for cancellation of removal
under 8 U.S.C. § 1229b(a).
In 2002, Petitioner was granted special rule cancellation
of removal and adjustment of status to lawful permanent
resident under section 203 of the Nicaraguan Adjustment
and Central American Relief Act (“NACARA”). 1 In 2015,
following Petitioner’s conviction for possession of a
controlled substance under California law, removal
proceedings were instituted against him and the IJ found him
removable as charged. Petitioner applied for cancellation of
removal under 8 U.S.C. § 1229b(a). The IJ found, and the
BIA affirmed, that Petitioner was ineligible for cancellation
of removal because his “removal ha[d] previously been
cancelled under this section.” 8 U.S.C. § 1229b(c)(6).
Petitioner timely petitioned for review.
This appeal presents a question of statutory
interpretation: Is a cancellation of removal under NACARA
§ 203 a cancellation of removal under 8 U.S.C. § 1229b?
Because a plain reading of the relevant statutes establishes
that it is, we deny the petition.
1
Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2198 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997).
HERNANDEZ V. GARLAND 5
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner first came to the United States from El
Salvador in 1993 at age eleven. In 2000, Petitioner filed an
“Application for Suspension of Deportation or Special Rule
Cancellation of Removal (pursuant to [NACARA § 203])”
with the United States Immigration and Naturalization
Service (“INS”). On May 31, 2002, Petitioner appeared
before an asylum officer who granted Petitioner special rule
cancellation and adjustment of status to lawful permanent
resident under NACARA § 203.
On September 3, 2014, in Los Angeles County Superior
Court, Petitioner pled no contest and was convicted of
possession of a controlled substance, methamphetamine, in
violation of California Health and Safety Code § 11377(a).
He was sentenced to a term of probation and ordered to
participate in a drug rehabilitation program, which he
successfully completed.
On May 21, 2015, the United States Department of
Homeland Security (“DHS”) served Petitioner with a Notice
to Appear, charging him with removability because he was
convicted of violating a law “relating to a controlled
substance.” 8 U.S.C. § 1227(a)(2)(B)(i). On June 26, 2015,
after a hearing, the IJ found Petitioner removable as charged.
On August 23, 2016, Petitioner submitted an application
for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).
DHS argued that Petitioner was ineligible for cancellation of
removal because he was previously granted special rule
cancellation of removal under NACARA § 203 and “anyone
granted cancellation cannot get a second grant” under 8
U.S.C. § 1229b(c)(6). The IJ ordered, and the parties
submitted, supplemental briefing on the issue. On March 27,
2018, the IJ denied Petitioner’s request for cancellation of
6 HERNANDEZ V. GARLAND
removal, holding: “As the respondent has already received
special-rule cancellation of removal under [NACARA], he
is statutorily barred under [8 U.S.C. § 1229b(c)(6)] from
reapplying for and receiving cancellation of removal under
[8 U.S.C. § 1229b](a).”
Petitioner timely appealed the IJ’s decision to the BIA,
which dismissed his appeal on December 17, 2019. In doing
so, the BIA noted that Petitioner did not contest “that he was
granted special rule cancellation of removal.” The BIA held
that special rule cancellation “was explicitly made subject to
the provisions of [8 U.S.C. § 1229b],” and therefore the IJ
“correctly found the respondent ineligible for cancellation of
removal.” The BIA rejected Petitioner’s argument that he
was eligible for cancellation of removal because his earlier
cancellation under NACARA was granted administratively
by INS, not by an IJ during removal proceedings.
JURISDICTION AND STANDARD OF REVIEW
In reviewing “any judgment regarding the granting of
relief under . . . [8 U.S.C. §] 1229b,” our jurisdiction is
limited to “review of constitutional claims or questions of
law.” 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D); see also
Monroy v. Lynch, 821 F.3d 1175, 1177 (9th Cir. 2016). “We
review questions of law de novo, except to the extent that
deference is owed to the BIA’s determination of the
governing statutes and regulations.” Aragon-Salazar v.
Holder, 769 F.3d 699, 703 (9th Cir. 2014) (citing Barrios v.
Holder, 581 F.3d 849, 854 (9th Cir. 2009)). “Because the
BIA expressed agreement with the reasoning of the IJ, this
court reviews both the IJ and the BIA’s decisions.” Kumar
v. Holder, 728 F.3d 993, 998 (9th Cir. 2013) (citing Nuru v.
Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005)).
HERNANDEZ V. GARLAND 7
DISCUSSION
Petitioner argues on appeal that the IJ and BIA erred in
finding that his special rule cancellation of removal under
NACARA § 203 triggered 8 U.S.C. § 1229b(c)(6)’s bar on
subsequent cancellation of removal. He asserts he received
only an adjustment of status, not a cancellation of removal
and, in any event, a cancellation of removal under NACARA
is not a cancellation of removal under 8 U.S.C. § 1229b. The
IJ and BIA rejected his arguments.
“[W]hen reviewing the BIA’s interpretation of its
governing statutes,” we apply “the Chevron two-step
framework.” Aragon-Salazar, 769 F.3d at 703 (citing
Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir.
2009) (en banc)); see also Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
“Accordingly, we must first determine whether ‘the intent of
Congress is clear.’” Aragon-Salazar, 769 F.3d at 703
(quoting Chevron, 467 U.S. at 842). “If it is, both [we] and
the agency ‘must give effect to the unambiguously expressed
intent of Congress.’” Id. (alteration in original) (quoting
Marmolejo-Campos, 558 F.3d at 908). “If, however, the
statute is ‘silent or ambiguous,’” we must decide whether to
defer to the BIA’s interpretation. Id. (quoting Chevron,
467 U.S. at 843).
Because the BIA’s decision in this case was unpublished,
Chevron deference is inapplicable, and we instead apply
Skidmore deference. See Marmolejo-Campos, 558 F.3d
at 909. See generally Skidmore v. Swift & Co., 323 U.S. 134
(1944). “Pursuant to Skidmore, a reviewing court may
properly resort to an agency’s interpretations and opinions
for guidance, as they constitute a body of experience and
informed judgment.” Orellana v. Barr, 967 F.3d 927, 934
8 HERNANDEZ V. GARLAND
(9th Cir. 2020) (internal quotation marks omitted) (quoting
Garcia v. Holder, 659 F.3d 1261, 1266–67 (9th Cir. 2011)).
“[W]e begin where all such inquiries must begin: with
the language of the statute itself.” Republic of Sudan v.
Harrison, 139 S. Ct. 1048, 1056 (2019) (internal quotation
marks omitted) (quoting Caraco Pharm. Lab’ys, Ltd. v.
Novo Nordisk A/S, 566 U.S. 399, 412 (2012)). The relevant
section of NACARA is titled “Special Rule for Cancellation
of Removal” and provides that “the Attorney General may,
under section 240A of such Act [i.e., 8 U.S.C. § 1229b],
cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is
inadmissible or deportable from the United States, if the
alien applies for such relief” and meets certain criteria.
NACARA § 203(a)(2) (emphasis supplied). Special rule
cancellation of removal under NACARA is “[s]ubject to the
provisions of the Immigration and Nationality Act . . . other
than subsections b(1), d(1), and (e) of section 240A of such
Act [i.e., 8 U.S.C. § 1229b(b)(1), (d)(1), (e)].” Id. Section
§ 1229b(c)(6)’s statutory bar prohibits “[a]n alien whose
removal has previously been cancelled under this section”
from receiving a second cancellation of removal under
§ 1229b.
We first address Petitioner’s contention that he is not
“[a]n alien whose removal has previously been cancelled,”
8 U.S.C. § 1229b(c)(6), because the “statutory bar only
applies to applicants who have previously been in removal
proceedings.” At the time he applied for and was granted a
special rule cancellation of removal under NACARA,
Petitioner had not been served a Notice to Appear, appeared
before an IJ, or had a final finding of removability entered
against him. Accordingly, he argues “there was no removal
to be cancelled.”
HERNANDEZ V. GARLAND 9
Nothing in 8 U.S.C. § 1229b or NACARA requires
removal proceedings to be initiated or finalized as a
precondition to cancellation. To “cancel” means “to decide
not to conduct or perform (something planned or expected)
usually without expectation of conducting or performing it
at a later time.” Cancel, Merriam-Webster.com Dictionary,
https://www.merriam-webster.com/dictionary/cancel (acces
sed Apr. 14, 2022); see also Cancel, Webster’s Third New
International Dictionary (2002) (defining “cancel” as “to
cease from planning or expecting: call off usu[ally] without
expectation of conducting or performing at a later time”). At
the time he applied for special rule cancellation under
NACARA, Petitioner’s removal was expected and thus
eligible for cancellation within the plain meaning of that
term. 2
Petitioner’s contention that the Attorney General may
both cancel removal and adjust status, but is not “always
required to do both,” has no relevance in his case because he
received both forms of relief. The INS asylum officer’s
“decision” on Petitioner’s NACARA application was
“suspension of deportation or special rule cancellation of
removal and adjustment of status granted.” (Emphasis
supplied) (capitalization omitted).
A plain reading of NACARA § 203 indicates a clear
intent by Congress that adjustment of status occurs if, and
only if, cancellation of removal is granted. Cf. Garcia-
Mendez v. Lynch, 788 F.3d 1058, 1064 (9th Cir. 2015)
2
Under penalty of perjury, Petitioner certified in his NACARA
application that he was “eligible to apply for suspension of deportation
or special rule cancellation of removal under [NACARA]” and
acknowledged that he was “subject to deportation or removal if [his]
application [was] not granted.”
10 HERNANDEZ V. GARLAND
(“Special rule cancellation . . . permits an alien . . . the
opportunity to cancel deportation and automatically become
a lawful permanent resident . . . .” (emphasis supplied)
(citing 8 U.S.C. § 1229b(b)(2))). 3 The Attorney General is
empowered to cancel removal of and adjust the status of an
alien. See Confederated Tribes & Bands of Yakama Nation
v. Yakima County, 963 F.3d 982, 990 (9th Cir. 2020) (noting
“the ordinary meaning of ‘and’ is typically conjunctive”
though it can “take on other meanings in context” (citing
Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1141
(2018))), cert. denied, 141 S. Ct. 2464 (2021).
NACARA incorporates 8 U.S.C. § 1229b(b)(3), which
provides that “[w]ith respect to aliens who the Attorney
General adjusts to the status of an alien lawfully admitted for
permanent residence,” the Attorney General is required to
record the date of their lawful admission as “the date of the
Attorney General’s cancellation of removal.” 8 U.S.C.
§ 1229b(b)(3). In Garcia-Mendez, we upheld the BIA’s
interpretation that “‘cancellation of removal and adjustment
of status’ is distinct from mere ‘adjustment of status.’”
788 F.3d at 1064 (quoting Matter of Y-N-P-, 26 I. & N.
Dec. 10, 15 (BIA 2012) (holding that under special rule
cancellation of removal, “lawful permanent resident status is
granted solely as a consequence of the cancellation of
removal”)). “The plain text, the statutory context, and
common sense all lead inescapably and unambiguously to
[the] conclusion” that, under NACARA, cancellation of
3
While Garcia-Mendez concerned special rule cancellation of
removal under 8 U.S.C. § 1229b(b)(2), the relevant statutory language
allowing the Attorney General to “cancel removal of, and adjust to the
status of an alien lawfully admitted for permanent residence, an alien,”
is identical to NACARA § 203.
HERNANDEZ V. GARLAND 11
removal triggers adjustment of status. Pereira v. Sessions,
138 S. Ct. 2105, 2110 (2018).
Petitioner fares no better with his claim that a special rule
cancellation of removal under NACARA § 203 is not a
cancellation “under this section [i.e., 8 U.S.C. § 1229b].”
8 U.S.C. § 1229b(c)(6). He argues that § 1229b is merely a
“procedural vehicle through which NACARA § 203(b)
relief is granted,” but NACARA incorporates the substantive
provisions of § 1229b as well, with limited exceptions. Both
NACARA and § 1229b are part of the same statutory
framework, which we must interpret “as a symmetrical and
coherent regulatory scheme,” and “fit, if possible, all parts
into an harmonious whole.” Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(internal quotation marks and citations omitted). In passing
NACARA, Congress “spoke[] subsequently and more
specifically to the topic at hand,” id., to allow the Attorney
General to grant § 1229b cancellation of removal and
adjustment of status to certain applicants under more lenient
standards. 4 This did not place NACARA § 203 special rule
cancellation of removal “outside of § 1229(b),” as Petitioner
4
See Aragon-Salazar, 769 F.3d at 701 (“In enacting NACARA,
Congress relaxed the requirements of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-
208, 110 Stat. 3009, for cancellation of removal for [certain] aliens by
applying the less stringent pre-IIRIRA requirements.” (citing Barrios v.
Holder, 581 F.3d 849, 857 (9th Cir. 2009); Munoz v. Ashcroft, 339 F.3d
950, 955–56 (9th Cir. 2003))); see also Campos-Hernandez v. Sessions,
889 F.3d 564, 567 (9th Cir. 2018) (“NACARA was enacted in 1997 to
provide immigration benefits to nationals from certain Central American
and Eastern European countries, including El Salvador. In particular,
‘[s]ection 203 of NACARA allows qualified individuals to apply for
special rule cancellation under the more lenient standards that existed
before the passage of [IIRIRA].’” (alterations in original) (internal
citations omitted) (quoting Barrios, 581 F.3d at 857)).
12 HERNANDEZ V. GARLAND
contends. To the contrary, in Monroy, we held that, “as with
non-NACARA cancellation of removal,” 821 F.3d at 1177,
special rule cancellation of removal under NACARA is
“relief under section . . . 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i)
(emphasis supplied).
The only other Circuit Court of Appeals to address this
issue in a published decision interprets the relevant statutes
in accord with our approach:
Special-rule cancellation under [NACARA]
is the same as cancellation under [8 U.S.C.
§ 1229b]. This is the plain reading of section
203 of [NACARA]. Because [petitioner] has
already received special-rule cancellation of
removal under [NACARA], he is statutorily
barred, under [§ 1229b(c)(6)], from
reapplying for and receiving cancellation of
removal under [§ 1229b](a).
Sejdini v. Holder, 714 F.3d 399, 402 (6th Cir. 2013).
Although a panel of this court found, in an unpublished
opinion, that “it is ambiguous whether Congress intended
§ 1229b(c)(6) to extend to NACARA § 203 recipients,”
Hernandez-Romero v. Barr, 783 F. App’x 758, 759 (9th Cir.
2019), that opinion is not precedent and provides scant
support for Petitioner’s arguments here. Hernandez-Romero
was remanded to the BIA, which issued a published decision
holding that because a “prior grant of special rule
cancellation of removal under the NACARA [is] ‘under
[§ 1229b],’ the plain language of [§ 1229b(c)(6)] precludes
[an applicant] from [subsequently] obtaining cancellation of
removal under [§ 1229b(a)].” Matter of Hernandez-Romero,
28 I. & N. Dec. 374, 376 (BIA 2021) (citing, inter alia,
Sejdini, 714 F.3d at 402).
HERNANDEZ V. GARLAND 13
Even assuming arguendo that it is ambiguous whether
special rule cancellation of removal under NACARA bars
subsequent cancellation of removal under 8 U.S.C.
§ 1229b(c)(6), we would still uphold the BIA’s
determination. 5 “Under Skidmore, the measure of deference
afforded to the agency varies ‘depending upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power
to persuade, if lacking power to control.’” Marmolejo-
Campos, 558 F.3d at 909 (alteration adopted) (quoting
Skidmore, 323 U.S. at 140). Here, the BIA held that
NACARA § 203 was “explicitly made subject to the
provisions of” 8 U.S.C. § 1229b and that the IJ therefore
“correctly found [Petitioner] ineligible for cancellation of
removal.” While the BIA’s analysis is not extensive, its
reasoning is persuasive and consistent with its subsequent
precedential decision in Hernandez-Romero. We therefore
would defer to it under Skidmore. See Orellana, 967 F.3d
at 934 (holding that Skidmore deference is not “preclude[d]”
just because the BIA’s analysis is “not extensive”).
CONCLUSION
We conclude that “the intent of Congress is clear” that
special rule cancellation of removal under NACARA § 203
5
Although the BIA’s published decisions warrant Chevron
deference, unpublished decisions ordinarily warrant only Skidmore
deference unless they rely on a prior published decision. See Route v.
Garland, 996 F.3d 968, 975 (9th Cir. 2021). The BIA’s decision here
predated its published decision in Hernandez-Romero, so it
understandably did not rely on that case. In any event, because we uphold
the BIA’s decision even without the benefit of Chevron deference, we
agree with the government that there is no need to remand this case for
the BIA to apply Hernandez-Romero.
14 HERNANDEZ V. GARLAND
is cancellation of removal under 8 U.S.C. § 1229b. Chevron,
467 U.S. at 842. The IJ and BIA therefore did not err in
determining that Petitioner’s request for a second
cancellation of removal is barred by 8 U.S.C. § 1229b(c)(6).
PETITION DENIED.