9th circuit reverses ruling in NMI guest worker case

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THE U.S. Court of Appeals for the Ninth Circuit has reversed its previous ruling that found a guest worker removable after the enactment of the Consolidated Natural Resources Act or CNRA, which became effective on Nov. 28, 2009.

In its recent ruling, the Ninth Circuit  found Catherine Lopena Torres, who was present in the CNMI when the Immigration and Nationality Act or INA became applicable, not removable  under the 8 U.S.C. § 1182(a)(7)(a)(i).

The Ninth Circuit granted in part and denied in part Torres’ petition for review of a decision of the Board of Immigration Appeals and overruled a previous decision made by the Ninth Circuit regarding a similar case.

Originally from the Philippines, Torres entered the CNMI lawfully as a guest worker in 1997 and by 2009 she had given birth to three U.S. citizen children. 

After the enactment of CNRA, the U.S. Department of Homeland Security served Torres with a notice to appear, charging her with being removable under 8 U.S.C. § 1182(a)(6) as a noncitizen “present in the United States without being admitted or paroled,” and under 8 U.S.C. § 1182(a)(7), as a noncitizen who “at the time of application for admission” lacked “a valid entry document.” 

Torres contested her removability before the immigration judge, saying that because she had lawfully entered the CNMI in 1997 before the INA went into effect, and because she had never submitted an application for admission into the U.S., she fell outside the scope of the provision.

But the immigration judge rejected her argument and ordered Torres removed under  § 1182(a)(7), which the Board of Immigration Appeals also affirmed.

The Ninth Circuit previously held in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017) that a respondent “present in the CNMI without admission or parole on November 28, 2009” who was placed in removal proceedings was “deemed” to be “an applicant for admission” and removable under § 1182(a)(7) for not possessing a valid entry document at the time of application for admission.

The Ninth Circuit then denied Torres’ petition for review initially; but later a majority of non-recused active judges of the Ninth Circuit voted to rehear the case.

In its recent ruling dated Sept. 24, the Ninth Circuit stated that “the sudden imposition of the INA could have rendered thousands of guest workers and other lawful residents under CNMI law removable overnight. In an effort to ensure that these guest workers and others like them were not unfairly penalized, and that the CNMI economy would not be destabilized by the deportation of previously admitted guest workers, Congress provided a two-year reprieve in which any alien ‘lawfully present in the Commonwealth’ on November 28, 2009 could not be removed for being present in the U.S. without admission or parole.”

Starting in 2010, just months after the INA went into effect in the CNMI, the federal government began charging some CNMI residents as removable under 8 U.S.C. § 1182(a)(7), a provision of the INA not covered by the CNRA’s two-year reprieve, for failing to possess a valid entry document “at the time of application for admission.”

The Ninth Circuit said many CNMI residents, like Torres, challenged their removal on the basis that, because they had not yet submitted an application for admission into the U.S., they were not removable under this provision.

Likewise, many CNMI residents, like the petitioner in Minto v. Sessions, would have had no reason to apply for entry papers into the U.S., as they had entered before such papers were required. Yet, under Minto, all were removable for lack of documentation under § 1182(a)(7) despite Congress’ expressed intent that they be permitted to remain for at least two years after the INA went into effect, the Ninth Circuit stated.

It found that the case in Minto was wrongfully decided and must be overruled.

The Ninth Circuit analyzed the meaning of the phrase “at the time of application for admission,” and had concluded that the phrase refers to the particular point in time when a non-citizen submits an application to physically enter into the U.S.

“By using this phrase solely in connection with documents required to lawfully cross the U.S. border, § 1182(a)(7) signals that the time of application for admission is the time when a noncitizen seeks permission to physically enter U.S. territory, regardless of whether the noncitizen is seeking entry from outside the country or inside the country at a port of entry,” the Ninth Circuit stated.

However, the 30-page ruling also found Torres ineligible for cancellation of removal by failing to establish 10 years of continuous presence in the U.S. and that the appellate court lacked jurisdiction to consider her request to remand the case to  DHS to consider her application for parole in place.

In an email to Variety on Friday, attorney Stephen Woodruff, who represented Torres, stated that the Ninth Circuit’s analysis is complex but its point is simple.

“Immigration and Customs Enforcement or ICE had been circumventing the protection Congress provided alien residents of the CNMI under the 2-year ‘grandfather clause’ following the federalization of immigration by using a different provision of immigration law to obtain removal orders,” Woodruff said.

That section of the law requiring a "valid entry document" actually is intended to apply only when a noncitizen is at the border seeking to enter the U.S. and never should have been applied to seek removal of someone who was already in the CNMI on Nov. 28, 2009, Woodruff added.

November 2020 pssnewsletter

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