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: …
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