NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SIGIFREDO QUEZADA IBARRA; No. 21-55271 JASMIN QUEZADA-PENA, D.C. No. Plaintiffs-Appellants, 2:20-cv-01909-FMO-DFM v. MEMORANDUM* UNITED STATES DEPARTMENT OF STATE; et al., Defendants-Appellees. Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding Argued and Submitted January 13, 2022 Pasadena, California Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF,** District Judge. Plaintiffs Sigifredo Quezada Ibarra and Jasmin Quezada-Pena challenge the Department of State’s policy of refusing to apply the so-called “minor exception” * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Page 2 of 4 found at 8 U.S.C. § 1182(a)(9)(B)(iii)(I) to those found inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I). The district court held that plaintiffs’ statutory claim was barred by the doctrine of consular nonreviewability, and that their constitutional claim failed because they did not allege bad faith conduct by the consular official. We affirm. 1. We need not decide whether plaintiffs’ statutory claim is barred by the doctrine of consular nonreviewability. See Allen v. Milas, 896 F.3d 1094, 1102 (9th Cir. 2018) (holding that the doctrine is not a jurisdictional limit). Even assuming that plaintiffs’ statutory challenge is reviewable, we conclude that it fails on the merits. We agree with plaintiffs that 8 U.S.C. § 1182(a)(9)(C) is ambiguous and that the government’s interpretation of the statute is entitled to deference, if at all, only under Skidmore v. Swift & Co., 323 U.S. 134 (1944). The government’s interpretation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it appears only in an interoffice memorandum from United States Citizenship and Immigration Services. See Ketchikan Drywall Services, Inc. v. Immigration & Customs Enforcement, 725 F.3d 1103, 1112–13 (9th Cir. 2013) (granting Skidmore deference to an INS memorandum after considering factors including the thoroughness and validity of the agency’s reasoning and its overall power to Page 3 of 4 persuade). Under Skidmore, we find the government’s interpretation persuasive. Although the definition of “unlawful presence” is the same in subsections (a)(9)(B) and (a)(9)(C), see Acosta v. Gonzales, 439 F.3d 550, 557 (9th Cir. 2006), overruled on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012), the memorandum notes that the minor exception in subsection (a)(9)(B) applies by its terms only when “determining the period of unlawful presence in the United States under clause (i).” 8 U.S.C. § 1182(a)(9)(B)(iii)(I). That language appears to limit the applicability of the minor exception to those who are found inadmissible under subsection (a)(9)(B). In addition, the memorandum notes that the grounds of inadmissibility listed under subsection (a)(9)(C) rest on the comparatively more serious violation of multiple illegal entries, making those violations “more …
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