Manuel Campos-Hernandez v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MANUEL CAMPOS-HERNANDEZ, No. 14-70034 Petitioner, Agency No. v. A094-199-373 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2018 Pasadena, California Filed May 2, 2018 Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and Sharon L. Gleason,* District Judge. Opinion by Judge Berzon * The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. 2 CAMPOS-HERNANDEZ V. SESSIONS SUMMARY** Immigration The panel denied Manuel Campos-Hernandez’s petition for review of a decision of the Board of Immigration Appeals, concluding that he was ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). To be eligible for cancellation of removal under NACARA, an applicant who is inadmissible on certain criminal grounds, like Campos-Hernandez, is subject to a heightened physical presence requirement such that he must establish that he “has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status, constituting a ground for removal.” NACARA § 203(b); 8 C.F.R. § 1240.66(c)(2). The BIA concluded that Campos-Hernandez’s 2008 conviction was a ground of removal, and because ten years had not elapsed between 2008 and the decision of the BIA, he was not eligible for cancellation of removal under NACARA. After briefing in this appeal, the BIA held, in Matter of Castro-Lopez, 26 I. & N. Dec. 693 (BIA 2015), a precedential opinion in a different immigration appeal, that continuous presence for cancellation of removal under NACARA “should be measured from the alien’s most recently incurred ground of removal.” ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CAMPOS-HERNANDEZ V. SESSIONS 3 The question before the panel in Campos-Hernandez’s case was which act or status constituting a ground for removal—the first, last, or any other—starts the clock for the ten-year “heightened” physical presence requirement. The panel first determined that, under Nat’l Cable & Telecommc’ns Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), the panel was not bound by this court’s contrary interpretation of identical language in the now-superseded suspension of deportation statute in Fong v. INS, 308 F.2d 191 (9th Cir. 1962), concluding that Fong did not hold that a contrary interpretation was foreclosed. Second, the panel deferred to Matter of Castro-Lopez. As a preliminary matter, the panel concluded that Matter of Castro-Lopez involved the interpretation of a statute, not a regulation, because the regulation copies verbatim the relevant statutory text from NACARA. The panel also determined that NACARA § 203(b) was silent or ambiguous with respect to the issue here. Further, the panel concluded that the BIA’s interpretation was reasonable, noting that the use of indefinite articles in NACARA § 203(b)—(i.e., ...

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