Alberto Mendez-Garcia v. Loretta Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALBERTO MENDEZ-GARCIA, No. 15-71931
Petitioner,
Agency No.
v. A070-095-653

LORETTA E. LYNCH, Attorney
General,
Respondent.

MARIO RIVERA-BALTAZAR, No. 13-72924
Petitioner,
Agency No.
v. A098-382-970

LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.

On Petition for Review of Orders of the
Board of Immigration Appeals

Argued and Submitted September 1, 2016
Pasadena, California

Filed October 20, 2016
2 MENDEZ-GARCIA V. LYNCH

Before: Barry G. Silverman, Sandra S. Ikuta, and
Paul J. Watford, Circuit Judges.

Opinion by Judge Ikuta;
Concurrence by Judge Watford

SUMMARY*

Immigration

In consolidated cases, the panel denied Alberto Mendez-
Garcia’s and Mario Rivera-Baltazar’s petitions for review
from the Board of Immigration Appeals’s decisions denying
cancellation of removal because while petitioners’
applications were pending their sons turned 21 and no
longer met the definition of “child” under 8 U.S.C.
§ 1101(b)(1).

The panel held that the BIA reasonably interpreted
8 U.S.C. § 1229b(b)(1)(D) to require an alien applying for
cancellation to establish hardship to a qualifying relative as
of the time the Immigration Judge adjudicates the application.
The panel thus held that the IJ in each case did not err in
considering whether petitioners’ sons were qualifying
relatives as of the time of the decision on the application.

The panel held that petitioners’ due process rights were
not violated by the agency’s failure to adjudicate their
applications before their sons turned 21, by the denial of their

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 MENDEZ-GARCIA V. LYNCH 3

applications for lack of a qualifying relative at the time of the
IJ’s final decision, or because their “settled expectations”
that they could apply for and receive cancellation were upset
by the change in status of their qualifying relatives.

The panel also held that Mendez-Garcia’s due process
right to a “fundamentally fair proceeding” was not violated
by the application of the statutory cap on grants of
cancellation pursuant to 8 U.S.C. § 1229b(e).

Judge Watford concurred, joining the court’s opinion
because it correctly resolved the cases, but writing separately
to emphasize that the dispositive factor in denying
petitioners’ procedural due process claim was their lack of
diligence in pressing for expedited review of their
applications.

COUNSEL

Michael Joseph Codner (argued), Law Offices of Michael J.
Codner, San Diego, California; Murray D. Hilts, San Diego,
California; for Petitioners.

Jane T. Schaffner (argued), Trial Attorney; Holly M. Smith
and Janice K. Redfern, Senior Litigation Counsel; Linda S.
Wernery, Assistant Director; Benjamin C. Mizer, Principal
Deputy Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C., for Respondent.
4 MENDEZ-GARCIA V. LYNCH

OPINION

IKUTA, Circuit Judge:

Alberto Mendez-Garcia’s application for cancellation of
removal claimed that his removal would result in hardship to
his son, who was a United States citizen under 21 years of
age at the time of the application. See 8 U.S.C.
§ 1229b(b)(1)(D). Mario Rivera-Baltazar’s application for
cancellation of removal made the same claim with respect to
his son, who was likewise a citizen who had not yet turned
21.1 While these applications were pending, the petitioners’
sons turned 21 and no longer met the statutory definition of
“child,” see 8 U.S.C. § 1101(b)(1). The Board of
Immigration Appeals (BIA) held that because the petitioners’
sons were no longer children, the petitioners had failed to
show that their removal would result in a hardship to a
qualifying relative, and therefore they were ineligible for
cancellation of removal. Mendez-Garcia and Rivera-Baltazar
petition for review of the BIA’s denial of their applications.
We have jurisdiction under 8 U.S.C. § 1252, and now deny
their petitions for review.

I

We begin by describing the legal background. The
Immigration and Nationality Act (INA) gives the Attorney
General discretion to cancel the removal of an alien who is
inadmissible or deportable from the United States. 8 U.S.C.
§ 1229b(b)(1). In order to be eligible for this relief, the alien
must meet four statutory requirements, which include
establishing “that removal would result in exceptional and

1
These petitions are consolidated for purposes of disposition.
 MENDEZ-GARCIA V. LYNCH 5

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 residence.” 8 U.S.C.
§ 1229b(b)(1)(D).2 The INA defines “child” as “an
unmarried person under twenty-one years of age” who
additionally satisfies one of several criteria. Id. § 1101(b)(1).

2
8 U.S.C. § 1229b(b) provides, in pertinent part:

(b) Cancellation of removal and adjustment of status for
certain nonpermanent residents

(1) In general The Attorney General may 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—

(A) has been physically present in the United
States for a continuous period of not less than
10 years immediately preceding the date of
such application;

(B) has been a person of good moral character
during such period;

(C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3)
of this title, subject to paragraph (5); and

(D) establishes 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 residence.
6 MENDEZ-GARCIA V. LYNCH

Section 1229b(b)(1)(D) does not directly identify the
point in time when the alien’s removal must result in a
hardship to a qualifying relative. The section does not
specify whether the alien’s removal must result in a hardship
at the time the alien receives a notice to appear, at the time
the alien files the cancellation of removal application, at the
time the immigration judge (IJ) adjudicates the application,
or at some other time. The BIA has addressed this issue in
two precedential decisions. See Matter of Isidro-Zamorano,
25 I. & N. Dec. 829, 830–31 (BIA 2012); Matter of Bautista
Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006). Bautista
Gomez involved an alien whose parents had become lawful
permanent residents (and thus qualifying relatives for
purposes of § 1229b(b)(1)(D)) after the alien’s application for
cancellation of removal was initially denied. After her
parents became lawful permanent residents, the alien filed a
motion to reopen. The IJ had denied the motion because the
alien did not have a qualifying relative at the time the alien
received the notice to appear. Bautista Gomez, 23 I. & N.
Dec. at 894. The BIA vacated the IJ’s decision. It held that
“an application for relief from removal is a continuing one,”
so that both the issue of good moral character,
§ 1229b(b)(1)(B), and “the issue of qualifying relatives”
should be determined “as of the time an application for
cancellation of removal is finally decided.” Id. The BIA
reasoned that “[o]therwise, such factors as the birth of a
United States citizen child, marriage to a lawful permanent
resident or citizen, or a serious accident or illness involving
a qualifying relative could not be used as the basis for a
motion to reopen to file, or to seek further consideration of,
an application for cancellation of removal.” Id. Because the
alien’s parents were qualifying relatives at the time the IJ
adjudicated the alien’s application for cancellation of
 MENDEZ-GARCIA V. LYNCH 7

removal, the alien met the requirement in § 1229b(b)(1)(D).
Id.

The BIA subsequently applied this rule in a decision
involving an alien who lost his qualifying relative before his
application was adjudicated. See Isidro-Zamorano, 25 I. &
N. Dec. at 830–31. Isidro-Zamorano involved an alien whose
application for cancellation of removal identified his son, a
United States citizen, as his qualifying relative. The son was
under 21 at the time the alien filed the application, but had
turned 21 by the time the application was adjudicated.
Noting its long-standing rule that an application for relief
from removal is a continuing application, the BIA concluded
that the alien “did not have a qualifying relative when the
Immigration Judge adjudicated the application and therefore
could not establish eligibility for relief.” Id. at 831. Isidro-
Zamorano recognized that the case presented “a difficult
situation because [the alien] has lost his eligibility for relief”
during the pendency of his application, while the alien in
Bautista Gomez had acquired qualifying relatives during this
period, and therefore benefitted from the BIA’s interpretation
of § 1229b(b)(1)(D). Id. at 831 & n.2. Nevertheless, the BIA
concluded that it “must, of course, interpret the provision
consistently” regardless whether the interpretation benefits or
harms the alien’s interests. Id. The BIA then reiterated its
conclusion that the issue of qualifying relatives should be
considered “at the time an application for cancellation of
removal is decided,” because “[o]therwise, factors arising
subsequent to the filing of an application that may be
favorable to the respondent’s claim, such as the birth of a
United States citizen child, marriage to a lawful permanent
resident or citizen, or a serious accident or illness involving
a qualifying relative, could not be considered in determining
the existence of exceptional and extremely unusual hardship.”
8 MENDEZ-GARCIA V. LYNCH

Id. at 830–31; see, e.g., Bautista Gomez, 23 I. & N. Dec. at
894.

In addition to prescribing eligibility requirements for
inadmissible or deportable aliens seeking cancellation of
removal, see 8 U.S.C. § 1229b(b), the INA imposes an annual
limit on the number of aliens who may receive cancellation
relief. See 8 U.S.C. § 1229b(e)(1); see also 8 C.F.R.
§ 1240.21. Under the cap imposed by § 1229b(e)(1), “the
Attorney General may not cancel the removal and adjust the
status under this section . . . of more than 4,000 aliens in any
fiscal year.”

Even when an alien otherwise qualifies for relief and the
annual number of grants has not been exhausted, “the
ultimate decision whether to grant relief . . . rests with the
Attorney General.” Romero-Torres v. Ashcroft, 327 F.3d
887, 889 (9th Cir. 2003).

II

We next turn to the facts of these consolidated cases.

A

Alberto Mendez-Garcia is a citizen of Mexico who
illegally entered the United States in 1990. Except for a brief
absence in August 1991, he has resided continuously in the
United States since his entry. While in the United States,
Mendez-Garcia had two children; the younger was born in
California on March 12, 1992. The record establishes that
Mendez-Garcia had a criminal record. In 1996, Mendez-
Garcia was arrested following a domestic dispute with his
wife, but was not charged. In May 2008, Mendez-Garcia was
 MENDEZ-GARCIA V. LYNCH 9

again arrested for a domestic dispute and pled nolo
contendere to one count of domestic battery, see Cal. Penal
Code § 243(e)(1), and one count of false imprisonment, see
id. § 236. He was sentenced to 120 days in jail.

As a result of his conviction, Mendez-Garcia came to the
attention of the Department of Homeland Security, which
served him with a notice to appear on January 13, 2009. At
an initial hearing on January 29, 2009, Mendez-Garcia
requested that the hearing be postponed; the Immigration
Court set a new hearing date in February. At the February
hearing, Mendez-Garcia requested another postponement; the
court set a third hearing date in March, which was
rescheduled to April. Before this hearing, Mendez-Garcia
moved to change venue from Phoenix, Arizona, to San
Francisco, California. The motion was granted, and a hearing
date was set for August 6, 2009.

Mendez-Garcia moved for a continuance until September
2009, and a hearing date was eventually set for October 1,
2009. At the hearing, the IJ set a December 30, 2009,
deadline to apply for cancellation of removal and scheduled
a merits hearing for January 19, 2011. Mendez-Garcia timely
filed his application on December 16, 2009, but the merits
hearing date was reset twice for reasons not explained in the
record, first to February 6, 2012, and then to March 1, 2013.

At the scheduled hearing date in March 2013, the IJ held
removal proceedings in Mendez-Garcia’s case. After hearing
testimony from Mendez-Garcia (who was represented by
counsel) and reviewing the record, the IJ informed the
attorneys that she had all the evidence she needed to make a
decision, but because the annual limit on grants of
cancellation of removal, see 8 U.S.C. § 1229b(e)(1), had
10 MENDEZ-GARCIA V. LYNCH

already been reached for the fiscal year, she was required by
regulation, see 8 C.F.R. § 1240.21(c)(1), to reserve her
decision until additional grants became available, which
would likely be in October 2013. The IJ noted that Mendez-
Garcia’s younger son, his one remaining qualifying relative,
would turn 21 before that date, and invited the parties to brief
the issue whether the son’s age should be counted at the time
the record was closed or at the time the IJ’s decision was
made. Neither party filed a legal brief on this issue.

The IJ issued an oral decision in Mendez-Garcia’s case on
October 23, 2013. She noted that Mendez-Garcia’s
application was “a borderline case, with regard to both good
moral character and exceptional and extremely unusual
hardship,” reasoning that Mendez-Garcia’s 2008 domestic-
violence conviction, to the extent it was not a per se
disqualifying conviction under § 1229b(b)(1)(C), “may
impugn [his] good moral character,” and that the potential
hardship to Mendez-Garcia’s son was “extremely poorly
documented.” But because Mendez-Garcia’s son had turned
21 on March 12, 2013, the IJ concluded that she need not
determine whether Mendez-Garcia had established good
moral character or whether his removal would “result in
exceptional and extremely unusual hardship” to his son.
§ 1229b(b)(1)(D). Rather, the IJ determined that under
Isidro-Zamorano, she was bound by the evidence as it existed
at the time of her decision, and Mendez-Garcia was not
eligible for cancellation of removal because he lacked a
qualifying relative.

Mendez-Garcia appealed to the BIA. The BIA dismissed
his appeal on June 5, 2015, holding that the IJ properly
applied Isidro-Zamorano in ruling that Mendez-Garcia’s son
no longer met the statutory definition of “child” because he
 MENDEZ-GARCIA V. LYNCH 11

had turned 21 before the IJ adjudicated his application. The
BIA acknowledged that the IJ had closed the record on March
1, 2013 (before Mendez-Garcia’s younger U.S. citizen child
had turned 21), but concluded that this distinction from
Isidro-Zamorano was not meaningful. Mendez-Garcia timely
petitioned for review.

B

Mario Rivera-Baltazar is a citizen of Mexico who
illegally entered the United States in 1986 and has resided in
the United States continuously since then. While residing in
the United States, his son was born on August 14, 1990, in
California. In March 1996, Rivera-Baltazar was convicted of
willful infliction of corporal injury upon a spouse or
cohabitant. See Cal. Penal Code § 273.5.

Rivera-Baltazar was served with a notice to appear on
January 7, 2005. On February 16, 2005, he filed a motion to
change venue from Phoenix, Arizona, to San Diego,
California, conceded removability, and stated his intention to
seek cancellation of removal. After transferring venue, the IJ
held an initial hearing on June 7, 2005. At that hearing,
Rivera-Baltazar’s counsel indicated that he was not yet
prepared to go forward. The IJ set a second hearing for
October 5, 2005.

At the October hearing, the government argued that
Rivera-Baltazar was not eligible for cancellation of removal
because his prior conviction rendered him ineligible. In
support of this argument, the government introduced a
criminal history transcript from the California Department of
Justice showing Rivera-Baltazar’s prior conviction. Rivera-
Baltazar asked for a continuance to prepare a response to that
12 MENDEZ-GARCIA V. LYNCH

exhibit. At a third hearing, on December 13, 2005, the IJ
overruled Rivera-Baltazar’s objection to the government’s
exhibit, found him ineligible for cancellation of removal, and
granted voluntary departure.

Rivera-Baltazar appealed to the BIA. After granting
Rivera-Baltazar’s request for an extension of the briefing
schedule, the BIA rejected his appeal on August 15, 2006.
Rivera-Baltazar moved the BIA to reopen the case on
November 2, 2006, but the BIA denied the motion on January
11, 2007, in part because the motion was untimely. Rivera-
Baltazar petitioned for review of both the BIA’s merits
decision and its denial of his subsequent motion to reopen.

While his petitions for review were pending before us,
Rivera-Baltazar moved to extend his time to file his opening
brief. We granted the extension and consolidated his
petitions. Shortly thereafter, the BIA issued a precedential
decision holding that convictions entered prior to September
30, 1996, did not preclude eligibility for cancellation of
removal, see Matter of Gonzalez-Silva, 24 I. & N. Dec. 218
(BIA 2007). Because Rivera-Baltazar had been convicted of
infliction of corporal injury in March 1996, the government
moved to remand the case. We granted the unopposed
motion and remanded the case to the BIA on December 6,
2007.

There the case languished until June 7, 2010, when the
government filed a request for decision with the BIA. After
receiving this request, the BIA set a briefing schedule, and
ordered the parties to make their submissions by October 21,
2010. The government moved to remand at that time, but
Rivera-Baltazar sought and received an extension until
November 11, 2010. Following the government’s lead,
 MENDEZ-GARCIA V. LYNCH 13

Rivera-Baltazar filed an unopposed motion to remand the
case to the IJ on November 4, 2010.

On remand from the BIA, the IJ held a hearing on May
26, 2011, and at that hearing set an application deadline of
November 22, 2011, and the next hearing date for May 16,
2012. Rivera-Baltazar raised no objection to this schedule at
the hearing, and subsequently requested an extension of the
application deadline to December 22, 2011. This extension
was granted, and Rivera-Baltazar timely filed his application
for cancellation of removal on December 22, 2011.

On August 14, 2011, while Rivera-Baltazar’s case was
pending, his son turned 21. On May 16, 2012, the IJ issued
its decision on Rivera-Baltazar’s application, holding that
because Rivera-Baltazar’s son was no longer a child for
purposes of § 1229b(b)(1)(D) and he had no other qualifying
relative for cancellation purposes, he was not eligible for
relief. The IJ denied his application for cancellation of
removal and granted voluntary departure.

Rivera-Baltazar appealed to the BIA, which dismissed his
appeal on August 13, 2013. As in Mendez-Garcia’s case, the
BIA held that the IJ properly applied Isidro-Zamorano in
ruling that Rivera-Baltazar’s son no longer met the statutory
definition of “child” at the time of the IJ’s decision. Rivera-
Baltazar timely petitioned for review.

III

We start with the petitioners’ argument that the IJ and
BIA erred in holding they were not eligible for cancellation
of removal under § 1229b(b)(1) because the BIA’s
interpretation of that statute in Isidro-Zamorano was
14 MENDEZ-GARCIA V. LYNCH

erroneous and inapplicable to their cases. We review legal
questions de novo, but when “there is ‘binding agency
precedent on-point’ in the form of a published BIA opinion,”
we consider whether Chevron deference is appropriate.
Valenzuela Gallardo v. Lynch, 818 F.3d 808, 813, 815 (9th
Cir. 2016) (citing Chevron U.S.A. Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984)). “Under the familiar
Chevron framework, we first ask ‘whether Congress has
directly spoken to the precise question at issue.’” Id. at 815
(quoting Chevron, 467 U.S. at 842). If Congress has directly
spoken to the precise question at issue, we “must give effect
to the unambiguously expressed intent of Congress.” Garcia-
Mendez v. Lynch, 788 F.3d 1058, 1061 (9th Cir. 2015) (citing
Chevron, 467 U.S. at 842–43). If Congress has not so
spoken, we proceed to step two, at which we will uphold the
agency’s interpretation as long as it is “based on a
permissible construction of the statute.” Valenzuela
Gallardo, 818 F.3d at 815.

A

In addressing the petitioners’ argument that the BIA’s
interpretation of § 1229b(b)(1)(D) is erroneous, we start with
the plain language of the statute. In order to be eligible for
cancellation of removal, the alien must meet the four different
requirements set forth in § 1229b(b)(1)(A) to (D). Section
1229b(b)(1)(A) expressly includes a time frame: it requires
the alien to establish that the alien “has been physically
present in the United States for a continuous period of not
less than 10 years immediately preceding the date” of the
 MENDEZ-GARCIA V. LYNCH 15

application for cancellation of removal.3 However, the
requirement at issue here, § 1229b(b)(1)(D), includes no such
time frame. It says only that the alien must establish “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 residence”; it does not specify that the alien must
meet the requirement as of a certain time. Because the statute
does not directly address the question before us here, we turn
to step two of Chevron.

At step two, we consider whether the BIA’s interpretation
is “based on a permissible construction of the statute.”
Valenzuela Gallardo, 818 F.3d at 815. At this step, we
conclude that the BIA could reasonably determine that
§ 1229b(b)(1)(D) requires an alien seeking cancellation to
establish hardship to a qualifying relative as of the time the IJ
adjudicates the alien’s application. The BIA’s interpretation
is consistent with the language of the statute. Moreover, the
BIA could reasonably determine that because Congress did
not specify a time frame in § 1229b(b)(1)(D), as it did in
§ 1229b(b)(1)(A), Congress intended the alien to make the

3
Although § 1229b(b)(1)(B) requires the alien to establish that the
alien “has been a person of good moral character during such period,” the
BIA has determined that the IJ should determine the issue of good moral
character as of the time the IJ renders a decision on the application for
cancellation of removal. See Matter of Ortega-Cabrera, 23 I. & N. Dec
793 (BIA 2005). We applied this rule in Castillo-Cruz v. Holder,
581 F.3d 1154 (9th Cir. 2009). But see Aragon-Salazar v. Holder,
769 F.3d 699, 704, 706 n.4 (9th Cir. 2014) (stating that it was not “bound
by this unreasoned conclusion” in Castillo-Cruz, and holding that identical
language in section 203(1)(A)(iii) of the Nicaraguan Adjustment and
Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160,
2193–2201 (1997), “clearly refers back to the period of time for which
continuous physical presence is required”).
16 MENDEZ-GARCIA V. LYNCH

showing of a hardship to a qualifying relative at the time of
the IJ’s decision.

In opposing this conclusion, Mendez-Garcia and Rivera-
Baltazar contend that the BIA’s interpretation is not
reasonable because it is inconsistent with § 1229b(b)(1)(A),
which requires a showing that the alien “has been physically
present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such
application.” The petitioners argue that if an application for
cancellation of removal were a continuing application, as the
BIA concluded, then an alien should continue to accrue
physical presence until the application was adjudicated.
According to the petitioners, because § 1229b(b)(1)(A)
requires the IJ to consider a specified time frame (ending at
the application date) for purposes of determining physical
presence, the application for cancellation of removal is not a
continuing application, and the IJ should likewise determine
whether the alien has a qualifying relative at a prior time.
This argument fails, because the requirement that an alien
show continuous presence in the United States for “10 years
immediately preceding the date” of an application for
cancellation of removal, § 1229b(b)(1)(A), is distinct from
the hardship requirement of § 1229b(b)(1)(D). “[W]here
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Andreiu v.
Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001) (en banc)
(alteration in original). The presence of a timing requirement
in § 1229b(b)(1)(A) — and its corresponding absence in
§ 1229b(b)(1)(D) — does not foreclose the BIA’s
interpretation, but rather bolsters it.
 MENDEZ-GARCIA V. LYNCH 17

Because the BIA offered a reasonable interpretation of
§ 1229b, the IJ in each case did not err in considering whether
Mendez-Garcia and Rivera-Baltazar had a qualifying relative
for purposes of the hardship requirement as of the time of the
decision on the application for cancellation of removal.

B

Mendez-Garcia and Rivera-Baltazar also argue that the
BIA’s interpretation of § 1229b(b)(1)(D) does not apply to
their cases because their cases are factually distinguishable
from Isidro-Zamorano. We reject this argument. When an
agency validly interprets a statute, that interpretation carries
the “force of law.” See Garcia v. Holder, 659 F.3d 1261,
1266 (9th Cir. 2011). Statutory interpretations offered by an
agency through adjudication are not limited to the factual
circumstances out of which that adjudication arose. “[A]n
agency ‘is not precluded from announcing new principles in
an adjudicative proceeding and . . . the choice between
rulemaking and adjudication lies in the first instance within
the [agency’s] discretion.’” Miguel-Miguel v. Gonzales,
500 F.3d 941, 950 (9th Cir. 2007) (omission and second
alteration in original) (quoting NLRB v. Bell Aerospace Co.,
416 U.S. 267, 294 (1974)). Even assuming that Isidro-
Zamorano and the precedents on which it relies are factually
distinguishable from the situations here, the BIA’s
interpretation of the hardship requirement in
§ 1229b(b)(1)(D) would nonetheless be binding. See Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 983 (2005) (“[T]he agency remains the
authoritative interpreter (within the limits of reason) of
[ambiguous] statutes.”).
18 MENDEZ-GARCIA V. LYNCH

C

Finally, Mendez-Garcia and Rivera-Baltazar argue that
the BIA erred in interpreting the word “child” in
§ 1229b(b)(1)(D) according to the statutory definition of
“child” in § 1101(b)(1), rather than using the dictionary
definition of child as “son or daughter.” We disagree.
“[W]hen a statute includes an explicit definition, we must
follow that definition, even if it varies from that term’s
ordinary meaning.” Chubb Custom Ins. Co. v. Space
Sys./Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013) (quoting
Stenberg v. Carhart, 530 U.S. 914, 942 (2000)). Because
8 U.S.C. § 1101(b)(1) includes an “explicit definition” of the
term “child,” the statutory definition controls. See, e.g.,
Moreno-Morante v. Gonzales, 490 F.3d 1172, 1178 (9th Cir.
2007) (“[C]ancellation of removal is appropriate only if the
detailed statutory definition of ‘child’ is met.”).

IV

Mendez-Garcia and Rivera-Baltazar next argue that the
decisionmaking processes in their cases violated their due
process rights. “It is well established that the Fifth
Amendment entitles aliens to due process of law in
deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306
(1993). “A full and fair hearing is one of the due process
rights afforded to aliens in deportation proceedings.”
Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). An
alien’s right to procedural due process is violated “only if [1]
the proceeding was ‘so fundamentally unfair that the alien
was prevented from reasonably presenting his case,’” and [2]
the alien proves that “the alleged violation prejudiced his or
her interests.” Id. (quoting Ibarra-Flores v. Gonzales,
439 F.3d 614, 620 (9th Cir. 2006)). While aliens are entitled
 MENDEZ-GARCIA V. LYNCH 19

to a procedurally fair hearing, “aliens have no fundamental
right to discretionary relief from removal for purposes of due
process and equal protection” because such relief is “a
privilege created by Congress.” Tovar-Landin v. Ashcroft,
361 F.3d 1164, 1167 (9th Cir. 2004). Denial of such
discretionary relief “cannot violate a substantive interest
protected by the Due Process clause.” Munoz v. Ashcroft,
339 F.3d 950, 954 (9th Cir. 2003). Because “[c]ancellation
of removal is a form of discretionary relief which does not
give rise to a ‘substantive interest protected by the Due
Process Clause,’” Hyuk Joon Lim v. Holder, 710 F.3d 1074,
1076 (9th Cir. 2013) (quoting Munoz, 339 F.3d at 954), its
denial likewise does not deprive an applicant of a
constitutionally protected liberty or property interest.

The petitioners argue that their due process rights were
violated because the application of Isidro-Zamorano coupled
with the failure of the agency to adjudicate their cancellation
of removal applications before their sons became 21 was
procedurally unfair and deprived them of a substantive
interest, their “settled expectations” in receiving relief. We
consider their arguments in turn.

A

The petitioners first argue that the proceedings were
procedurally unfair because they were deprived of the
opportunity to have their applications for cancellation of
removal adjudicated at a time when they would have had a
meaningful opportunity for relief. Mendez-Garcia argues that
because he had qualifying relatives at the time he filed his
application for cancellation of removal in 2009, the fact that
his application was not adjudicated until October 2013
“prevented [him] from reasonably presenting his relief
20 MENDEZ-GARCIA V. LYNCH

application.” Similarly, Rivera-Baltazar argues that his son
had five years of eligibility as a qualifying relative remaining
at the time he applied for cancellation of removal, and that
the lack of “an expedited review” in 2011 on remand from the
BIA was “fundamentally unfair” and amounted to an
“inequitable process.”

We disagree. First, procedural delays, such as routine
processing delays, do not deprive aliens of a substantive
liberty or property interest unless the aliens have a “legitimate
claim of entitlement” to have their applications adjudicated
within a specified time. Ruiz-Diaz v. United States, 703 F.3d
483, 487 (9th Cir. 2012) (quoting Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972)). In Ruiz-Diaz, we considered a
regulation that barred a category of aliens, including religious
workers, from filing an application for adjustment of status
under 8 U.S.C. § 1255(a) concurrently with a visa petition
from a sponsoring employer. This category of aliens had to
wait for approval of their employers’ petitions before they
could seek adjustment of status. Because of the delays
inherent in acquiring approval of a visa petition, aliens
subject to this regulation could be deprived of relief if their
visas expired before their adjustment applications were
adjudicated. A group of aliens lawfully present in the United
States on five-year religious-worker visas brought suit against
the government, asserting that the regulation, coupled with
the processing delays, violated their due process rights. Id.
We acknowledged that the delays “often mean that their five-
year visas have expired before” their applications could be
considered, which “makes it more difficult for plaintiffs to
obtain” the relief they sought. Id. at 487–88. Nonetheless,
we held that the aliens could not claim that their due process
rights were violated because they had not identified a
“‘legitimate claim of entitlement’ to have the petitions
 MENDEZ-GARCIA V. LYNCH 21

approved before their visas expire.” Id. at 487 (quoting Roth,
408 U.S. at 577); see also Mudric v. Attorney Gen., 469 F.3d
94, 99 (3d Cir. 2006) (holding that an eight-year delay in the
processing of an alien’s application for asylum did not violate
his due process rights “because [the alien] simply had no due
process entitlement to the wholly discretionary benefits of
which he and his mother were allegedly deprived, much less
a constitutional right to have them doled out as quickly as he
desired”). Here, Mendez-Garcia and Rivera Baltazar likewise
lack any legitimate claim of entitlement to having their
applications adjudicated before their sons turned 21. No
statute or regulation requires the government to take action on
their applications within a set period, nor does cancellation of
removal “give rise to a ‘substantive interest protected by the
Due Process Clause.’” Hyuk Joon Lim, 710 F.3d at 1076
(quoting Munoz, 339 F.3d at 954). Therefore, the denial of
their cancellation of removal applications due to the lack of
a qualifying relative at the time of the IJ’s final decision did
not deprive them of a substantive right.

Nor did the agency’s delays violate Mendez-Garcia’s and
Rivera-Baltazar’s procedural due process rights by preventing
them from reasonably presenting their cases at a meaningful
time. Cf. Singh v. Reno, 182 F.3d 504 (7th Cir. 1999). In
Singh, the Immigration and Naturalization Service (INS)
“continued to drag its feet” in setting hearing dates and
repeatedly canceled hearing dates over a four-year period,
despite the alien’s diligent efforts to have his hearing
recalendared. Id. at 507. Only after Congress enacted a
statute that retroactively eliminated any possibility of relief
for that alien did the INS set a hearing date and summarily
conclude that he was deportable. Id. at 510. While
acknowledging that an alien generally “has no substantive
right to have a claim heard at a particular time,” the Seventh
22 MENDEZ-GARCIA V. LYNCH

Circuit held that under “the very unusual circumstance” when
the alien, rather than the agency, pressed for a speedier
resolution of his status, the alien had sufficiently raised a
claim that his due process rights had been violated to allow
him the “exceptional procedure” of “direct review of
constitutional claims in the court of appeals.” Id.

Even assuming that extraordinary delays caused by the
agency could give rise to a constitutional claim, there were no
such “very unusual circumstance[s]” in these cases. Neither
Mendez-Garcia nor Rivera-Baltazar contend that the delays
in their cases result from anything other than “routine
processing times,” Ruiz-Diaz, 703 F.3d at 487, and neither
took action to increase the likelihood that their applications
would be adjudicated before their sons turned 21, cf. Singh,
182 F.3d at 511 (finding “of crucial significance” that “it was
[the alien] who pressed to have the matter resolved”). Indeed,
Mendez-Garcia sought to postpone the adjudication of his
application three times before his younger U.S. citizen child
turned 21. Even when the IJ brought to Mendez-Garcia’s
attention the imminence of his child’s twenty-first birthday
and offered him the opportunity to submit supplemental
briefing on the issue, he did not do so. Similarly, Rivera-
Baltazar did not act when we remanded his case to the BIA in
2007; the BIA ultimately took action only after the
government (not Rivera-Baltazar) filed a request for decision.
Rather than seeking to expedite the adjudication of his
application, Rivera-Baltazar sought to postpone it four times
before his child turned 21. We conclude that the
decisionmaking process here did not violate Mendez-Garcia’s
and Rivera-Baltazar’s due process rights.
 MENDEZ-GARCIA V. LYNCH 23

B

Mendez-Garcia and Rivera-Baltazar also argue that their
due process rights were violated because they had “settled
expectations” that they could apply for and receive
cancellation of removal, and these settled expectations were
upset by the change in the status of their qualifying relatives.
In making this argument, Mendez-Garcia and Rivera-Baltazar
analogize to INS v. St. Cyr, 533 U.S. 289 (2001), which
considered the retroactive effect of section 304 of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-587–3009-597.

In order to analyze the strength of this analogy, we briefly
summarize the relevant facts and conclusion in St. Cyr. As
the Supreme Court explained, section 304 eliminated
8 U.S.C. § 1182(c), which gave the Attorney General broad
discretion to waive deportation of aliens who had prior
criminal convictions, and replaced it with § 1229b, which
accorded much narrower discretion to the Attorney General
to cancel removal of certain aliens, but not of aliens who
had been convicted of an aggravated felony, see
§ 1229b(b)(1)(C). Prior to IIRIRA’s effective date, the alien
in St. Cyr had pled guilty to sale of a controlled substance.
He became deportable as a result of the conviction, but he
also preserved his eligibility for waiver of deportation relief
under § 1182(c) by pleading guilty. 533 U.S. at 293.
IIRIRA, which took effect before his application for
§ 1182(c) relief was adjudicated, id., made his crime an
aggravated felony and thus made him statutorily ineligible for
cancellation of removal, id. at 297. The alien argued that
because he had pled guilty in reliance on pre-IIRIRA law,
applying IIRIRA to deny his application for relief was
24 MENDEZ-GARCIA V. LYNCH

impermissibly retroactive. Id. at 314–15. The Supreme
Court agreed. Applying the two-step analysis of Landgraf v.
USI Film Products, 511 U.S. 244 (1994), the Court first held
that IIRIRA did not contain an “unambiguous direction”
demanding retroactive application, St. Cyr, 533 U.S. at 316,
320. It then determined that because aliens who had pled
guilty “waive[d] several of their constitutional rights” in
exchange for preserving their eligibility for § 1182(c) relief,
applying IIRIRA retroactively to deny those aliens the
possibility of relief for which they had bargained would
impermissibly impair “vested rights acquired under existing
laws . . . in respect to transactions or considerations already
past.” Id. at 321–22.

As this summary makes clear, St. Cyr is not applicable
here. Landgraf emphasized that “[t]he Due Process Clause
. . . protects the interests in fair notice and repose that may be
compromised by retroactive legislation,” 511 U.S. at 266, and
St. Cyr accordingly discusses “settled expectations” as they
related to retroactive application of IIRIRA, see 533 U.S. at
323–24. Mendez-Garcia and Rivera-Baltazar do not point to
any legislative change; there was no amendment to the
cancellation of removal statute or other legislation that could
raise due process concerns under Landgraf and St. Cyr.
Whereas St. Cyr indicated that it is sometimes impermissible
to apply new law to “transactions or considerations already
past,” id. at 321, nothing in St. Cyr suggests that it is
impermissible to apply unchanged law to a current factual
situation as it has changed or developed over time. Further,
St. Cyr made clear that “settled expectations” result only
when an alien gives up “valuable legal rights.” Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002)
(quoting St. Cyr, 533 U.S. at 321). Mendez-Garcia and
Rivera-Baltazar gave up no such legal rights in applying for
 MENDEZ-GARCIA V. LYNCH 25

cancellation of removal. Cf. id. (finding that alien who had
turned herself into the INS “gave up only her ability to
continue living illegally and undetected in the United States,”
and not any valuable legal rights). Nor can Mendez-Garcia
and Rivera-Baltazar claim they lacked notice that their
children would grow up. Accordingly, we reject Mendez-
Garcia and Rivera-Baltazar’s claim that they have a due
process right to have their applications adjudicated in light of
historical facts.

C

Mendez-Garcia raises one additional argument that his
due process rights were violated by the proceedings.4
According to Mendez-Garcia, the application of the statutory
cap on grants of cancellation of removal, § 1229b(e), violated
his due process right to a “fundamentally fair proceeding”
because it was unfair for the IJ to close his proceedings,
despite having everything she needed to make a decision, and
such unfairness was prejudicial in that his son ceased being
a qualifying relative soon after.

To the extent Mendez-Garcia is challenging Congress’s
authority to enact a statutory cap on relief from deportation,
we reject the argument. “‘[O]ver no conceivable subject is the

4
In a letter submitted the day before oral argument under Federal
Rule of Appellate Procedure 28(j), Mendez-Garcia raised the additional
argument that the government’s implementation of the statutory cap
violates his equal protection rights because it treats non-detained
applicants for cancellation of removal and detained applicants differently.
Because Mendez-Garcia did not raise this argument in his opening brief,
we deem this issue waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3
(9th Cir. 2011). We accordingly deny Mendez-Garcia’s pending motion
for leave to exceed the word limit on Rule 28(j) letters as moot.
26 MENDEZ-GARCIA V. LYNCH

legislative power of Congress more complete than it is over’
the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792
(1977). “Congress has plenary power to regulate immigration
and the conditions on which aliens remain in the United
States.” Korab v. Fink, 797 F.3d 572, 574 (9th Cir. 2014).
When Congress acts in the immigration context, the resulting
legislation need “meet only ‘the (unexacting) standard of
rationally advancing some legitimate governmental
purpose.’” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 788
(9th Cir. 2014) (en banc) (quoting Flores, 507 U.S. at 306).
A statutory cap on grants of cancellation of removal is
rational; Congress could have concluded, for example, that
immigration benefits should generally be reserved for aliens
who are not otherwise removable. Moreover, limiting the
number of otherwise-removable aliens who are permitted to
remain in the United States is a legitimate governmental
purpose, one that the statutory cap rationally advances.

Nor did the application of the cap to Mendez-Garcia
violate his due process rights. In order to assert a due process
challenge to such a condition of relief, an alien must establish
a “qualifying liberty interest of which he was deprived.”
Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th
Cir. 2002) (citing Mathews v. Eldridge, 424 U.S. 319, 332
(1976)). Mendez-Garcia has no such liberty interest.
Discretionary immigration relief gives rise to no “substantive
interest protected by the Due Process Clause.” Hyuk Joon
Lim, 710 F.3d at 1076. Nor did Congress provide aliens with
such an interest. When cancellation of removal was
established as a form of relief under IIRIRA, Congress
circumscribed its availability not only by specifying the four
requirements that an alien must satisfy but also by including
the statutory cap. See IIRIRA § 304(a), Pub. L. No. 104-208,
110 Stat. at 3009-594, 3009-596. Thus, “the very liberty
 MENDEZ-GARCIA V. LYNCH 27

interest [Mendez-Garcia] asserts to have been taken away” by
the statutory cap, his ability to receive cancellation of
removal,“was granted by [the] same statute” that instituted
the cap — IIRIRA section 304. Hernandez-Mezquita,
293 F.3d at 1165. Though the statutory cap may have
deprived Mendez-Garcia of the ability to receive cancellation
of removal relief, the right to receive that relief unrestricted
by the cap was “a right he never had.” Id. This due process
challenge, too, fails.

PETITIONS DENIED.

WATFORD, Circuit Judge, concurring:

I join the court’s opinion because it correctly resolves the
two cases before us. I write separately to emphasize that, for
me at least, the dispositive factor in denying relief on the
petitioners’ procedural due process claim is their lack of
diligence in pressing for expedited review.

The petitioners’ due process claim arises from delays in
the processing of their applications for cancellation of
removal based on hardship to their U.S. citizen children. See
8 U.S.C. § 1229b(b)(1)(D). Delay can be fatal to these
applications because, under the rule adopted by the Board of
Immigration Appeals (BIA), an applicant loses eligibility for
this relief if his child turns 21 before the agency has made a
decision on the application. See Matter of Isidro-Zamorano,
25 I. & N. Dec. 829, 831 (BIA 2012). The consequences for
those who lose their eligibility are severe: An applicant
granted cancellation of removal attains the status of a lawful
permanent resident, a status he keeps even after his U.S.
28 MENDEZ-GARCIA V. LYNCH

citizen child turns 21, whereas an applicant denied such relief
is subject to removal from the United States and often
barred from returning for ten years. See 8 U.S.C.
§§ 1182(a)(9)(B)(i)(II), 1229b(b)(1).

As the court acknowledges, an arbitrary and unjustified
delay in processing an application for cancellation of removal
can serve as the basis for a successful due process claim,
provided the applicant has been diligent throughout in urging
the agency to reach a decision before his child turns 21. The
petitioners before us cannot establish a violation of their due
process rights because they were not diligent in pressing for
expedited review of their applications. Had they been
diligent in doing so, however, they might well have been
entitled to prevail.

Take Mario Rivera-Baltazar’s case. The immigration
judge who initially ruled on his application denied it on an
erroneous legal ground, and our court subsequently remanded
the case to the BIA for further proceedings. At that point,
Rivera-Baltazar’s U.S. citizen son was 17 years old, so there
was plenty of time left for his application to be considered.
Because the immigration judge did not reach the merits of
Rivera-Baltazar’s application during the initial round of
proceedings, his case necessarily had to be remanded back to
the immigration judge. Yet the BIA sat on his case for three
years and did nothing. Unlike my colleagues, I do not think
we can characterize that as a routine processing delay
(particularly for such a ministerial task), and as far as the
record discloses there was absolutely no justification for it.

The problem for Rivera-Baltazar is that he did nothing
during that entire three-year period of delay to try to expedite
review of his application. As the court notes, it was the
 MENDEZ-GARCIA V. LYNCH 29

government’s action after nearly three years of unexplained
delay that finally prompted the BIA to do what it should have
done right away: remand the case back to the immigration
judge. Had Rivera-Baltazar been diligent in urging the BIA
to remand his case forthwith, and had he lost his eligibility
for cancellation of removal due to the unjustified delay, what
more could be required to assert a meritorious due process
claim?

The protections of the Due Process Clause are vital in
cases like these because there is enormous potential for
arbitrariness and hence unfairness under the rule adopted by
the BIA. Under that rule, an applicant’s eligibility for relief
can be foreclosed by administrative delays that are wholly
outside the applicant’s control and that have nothing to do
with the merits of the application. The potential for
arbitrariness is heightened in the cancellation of removal
context because a person eligible for such relief may not
affirmatively apply for it—she may request it only after the
government decides to initiate removal proceedings by
serving her with a notice to appear. So from the outset the
applicant cannot control how old her U.S. citizen child may
be at the time her application is filed, and she of course has
no ability to stop the clock from ticking as her child
approaches the age of 21. When an applicant does everything
in her power to ensure that the agency can adjudicate her
application for cancellation of removal while her U.S. citizen
child is still under 21, the agency cannot simply allow the
application to languish for years without justification such
that the child ages out before a decision can be rendered.

Due process guarantees “a full and fair hearing” in
immigration proceedings. Colmenar v. INS, 210 F.3d 967,
971 (9th Cir. 2000). A hearing for relief surely cannot be
30 MENDEZ-GARCIA V. LYNCH

considered full and fair if the adjudicator arbitrarily and
unjustifiably withholds a decision until a time when the relief
is no longer available. See Singh v. Reno, 182 F.3d 504, 510
(7th Cir. 1999).