Sergio Hernandez Flores v. Jeffrey Rosen

S
                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SERGIO HERNANDEZ FLORES, AKA             No. 17-72888
Sergio Flores Hernandez, AKA
Fernando Gonzalez Ruiz, AKA               Agency No.
Fernando Ruiz, AKA Fernando Ruiz         A093-237-433
Gonzalez,
                         Petitioner,
                                          OPINION
                 v.

JEFFREY A. ROSEN, Acting Attorney
General,
                       Respondent.

       On Petition for Review of an Order of the
           Board of Immigration Appeals

        Argued and Submitted October 7, 2020
                Pasadena, California

               Filed December 30, 2020

 Before: Andrew J. Kleinfeld, Andrew D. Hurwitz, and
           Daniel A. Bress, Circuit Judges.

                Opinion by Judge Bress
2                HERNANDEZ FLORES V. ROSEN

                          SUMMARY *


                           Immigration

    The panel denied Sergio Hernandez Flores’s petition for
review of a decision of the Board of Immigration Appeals
and held that the government may remove petitioner now,
rejecting his contention that, under provisions specific to the
Special Agricultural Worker program (SAW), the Attorney
General was required to seek his removal while he was a
temporary resident decades ago.

    Under SAW, certain alien agricultural workers who
performed services in the United States for at least 90 days
during the 12-month period ending on May 1, 1986 could
apply for adjustment to temporary resident status. An
applicant had to establish that he was admissible, and an
alien granted temporary residence was automatically
adjusted to permanent resident status on a fixed schedule.

    Before being granted temporary resident status under
SAW in 1990, petitioner was convicted of two drug felonies.
The record did not indicate whether he disclosed his
convictions on his application. In 1992, he automatically
adjusted to permanent resident status, but was charged as
removable in 2015 as an alien who was inadmissible at the
time of adjustment. He did not dispute that his convictions
rendered him inadmissible, but argued that he could only
have been removed on that ground under SAW’s termination
provisions, which provided that after adjustment to
temporary residency, but before adjustment to permanent

    *
      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 FLORES V. ROSEN                   3

residency, the Attorney General could terminate an alien’s
temporary resident status.

     The panel held that, under SAW, an alien who was
inadmissible at the time of his adjustment to temporary
resident status because of disqualifying convictions may be
removed after his automatic adjustment to permanent
resident status, despite the Attorney General never having
initiated termination proceedings while the alien was a
temporary resident. The panel explained that neither the
SAW statutory provisions nor regulations suggest, much less
mandate, that the termination provisions are the exclusive
means by which the government may remove an alien in this
circumstance. By the same token, the panel explained that
nothing in petitioner’s ground of removability purports to
exempt SAW applicants from its ambit. The panel also
observed that BIA precedent is in accord with its holding.

    The panel also rejected petitioner’s contention that
SAW’s limitations on administrative and judicial review
prevent the government from seeking his removal,
explaining that those limits apply only to review of denials
of SAW status. Finally, the panel concluded that Barton v.
Barr, 

140 S. Ct. 1442

(2020), which rejected the argument
that “a noncitizen is not rendered ‘inadmissible’ unless and
until the noncitizen is actually adjudicated as inadmissible
and denied admission,” provided no support for petitioner’s
position.
4             HERNANDEZ FLORES V. ROSEN

                        COUNSEL

Megan Brewer (argued) and Stacy Tolchin, Law Offices of
Stacy Tolchin, Los Angeles, California, for Petitioner.

Jeffrey A. Hall (argued), Jane T. Schaffner, and Matthew B.
George, Trial Attorneys; Joseph H. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.


                        OPINION

BRESS, Circuit Judge:

    Under the Special Agricultural Worker program (SAW),
agricultural workers meeting certain qualifications could
obtain lawful temporary resident status, after which they
were automatically adjusted to lawful permanent residency
on a set schedule. See 8 U.S.C. § 1160. Petitioner Sergio
Hernandez Flores obtained lawful permanent resident status
through SAW. But it turns out that before he applied for
SAW temporary resident status, he had been convicted of
two drug offenses that would have rendered him ineligible
for admission into the United States. The Department of
Homeland Security (DHS) now seeks petitioner’s removal
as an “alien who at the time of entry or adjustment of status
was within one or more of the classes of aliens inadmissible
by the law existing at such time.” 8 U.S.C. § 1227(a)(1).
The question in this case is whether the government may
seek petitioner’s removal now or whether, under provisions
specific to SAW, the Attorney General was required to seek
removal while petitioner was a temporary resident some
              HERNANDEZ FLORES V. ROSEN                    5

decades ago. We hold that the government may remove
petitioner now and therefore deny the petition for review.

                              I

    In 1986, Congress created SAW to “provide[] amnesty
for a large number of the undocumented alien population of
agricultural workers” present in the United States. Soriano-
Vino v. Holder, 

653 F.3d 1096

, 1099 (9th Cir. 2011); see also
Immigration Reform and Control Act of 1986, Pub. L. No.
99-603, § 302(a), 100 Stat. 3359, 3417–22 (codified at
8 U.S.C. § 1160). Under SAW, certain aliens who had
performed “seasonal agricultural services in the United
States” for at least 90 days during the 12-month period
ending on May 1, 1986 could apply for adjustment to
temporary resident status.         8 U.S.C. § 1160(a)(1).
Applications had to be filed “during the 18-month period
beginning on the first day of the seventh month that begins
after November 6, 1986.”

Id. § 1160(a)(1)(A). To

be
eligible for SAW, an applicant also had to establish that he
was admissible into the United States.

Id. § 1160(a)(1)(C); see

also

id. § 1160(c)(2) (granting

the Attorney General
authority to waive certain grounds of inadmissibility under
limited circumstances).

    An alien who was granted temporary residence under
SAW was automatically adjusted to permanent resident
status on a fixed schedule, without the need for another
application. 8 U.S.C. § 1160(a)(2). SAW thus functioned
as a “broad amnesty program[]” that allowed qualifying
agricultural workers unlawfully present in the United States
to obtain legal immigrant status. Ortiz v. Meissner, 

179 F.3d 718

, 719 (9th Cir. 1999).

   In 1986, petitioner, a citizen of Mexico, pleaded guilty
in California state court (under the alias Fernando Ruiz
6             HERNANDEZ FLORES V. ROSEN

Gonzalez) to two drug felonies: sale of cocaine and
possession for sale of heroin and cocaine. Petitioner does
not dispute that these convictions rendered him inadmissible
into the United States. Despite these convictions, however,
petitioner in 1990 was granted temporary resident status
under SAW. SAW imposes strict confidentiality rules on the
information provided in SAW applications, see 8 U.S.C.
§ 1160(b)(6), and the record does not indicate whether
petitioner disclosed his convictions on his application, but
petitioner does not contend that he did so.

    SAW also provided that after an alien’s adjustment to
temporary residency, but before his automatic adjustment to
permanent residency, the Attorney General could terminate
the alien’s temporary resident status. 8 U.S.C. § 1160(a)(3).
These provisions, which are the principal focus of this
appeal, read as follows:

       (3) Termination of temporary residence

       (A) During the period of temporary resident
       status granted an alien under [section
       1160(a)(1)], the Attorney General may
       terminate such status only upon a
       determination under this chapter that the
       alien is deportable.

       (B) Before any alien becomes eligible for
       adjustment of status [to permanent residence]
       under [section 1160(a)(2)], the Attorney
       General may deny adjustment to permanent
       status and provide for termination of the
       temporary resident status granted such alien
       under [section 1160(a)(1)] if—
              HERNANDEZ FLORES V. ROSEN                   7

           (i) the Attorney General finds by a
           preponderance of the evidence that the
           adjustment to temporary resident status
           was the result of fraud or willful
           misrepresentation as set out in section
           1182(a)(6)(C)(i) of this title, or

           (ii) the alien commits an act that (I) makes
           the alien inadmissible to the United States
           as an immigrant, except as provided
           under [section 1160(c)(2)], or (II) is
           convicted of a felony or 3 or more
           misdemeanors committed in the United
           States.

8 U.S.C. § 1160(a)(3). SAW’s implementing regulations
impose notice requirements and other procedures that the
Attorney General must follow when terminating temporary
residency. See 8 C.F.R. § 210.4(d). Here, the Attorney
General never sought to terminate petitioner’s SAW status
while he was a temporary resident. As a result, petitioner
automatically adjusted to permanent resident status by
operation of SAW in 1992. See 8 U.S.C. § 1160(a)(2).

    More than two decades later, in 2015, DHS charged
petitioner with removability as an “alien who at the time of
entry or adjustment of status was within one or more classes
of aliens inadmissible by the law existing at such time.”
8 U.S.C. § 1227(a)(1)(A). As relevant here, DHS alleged
that at the time petitioner adjusted to temporary resident
status, his California felony drug convictions rendered him
inadmissible under former 8 U.S.C. § 1182(a)(23). 1

    1
      This provision, as amended, is now found at 8 U.S.C.
§ 1182(a)(2)(A)(i)(II).
8              HERNANDEZ FLORES V. ROSEN

Although the Attorney General could waive certain grounds
for inadmissibility under SAW, petitioner’s drug offenses
were nonwaivable. See 8 U.S.C. § 1160(c)(2)(B)(ii)(III).

    An immigration judge (IJ) found petitioner removable
based on his drug convictions. The Board of Immigration
Appeals (BIA) dismissed petitioner’s appeal. It reasoned
that “[a]lthough the former Immigration and Naturalization
Service would have been within its right to initiate
termination of [petitioner’s] temporary resident status, the
fact that such action was not taken does not foreclose the
DHS from currently charging [petitioner] with being
removable.”

    Petitioner timely sought review in this court. We have
jurisdiction under 8 U.S.C. § 1252 and review pure questions
of law de novo. Hernandez-Mancilla v. Holder, 

633 F.3d 1182

, 1184 (9th Cir. 2011).

                              II

    The sole issue presented for our review is whether, under
SAW, an alien who was inadmissible at the time of his
adjustment to temporary resident status because of
disqualifying convictions may be removed after his
automatic adjustment to permanent resident status, despite
the Attorney General never having initiated 8 U.S.C.
§ 1160(a)(3) termination proceedings while the alien was a
temporary resident. Petitioner essentially claims that
because he became a permanent resident under SAW, the
government had a narrow window within which to remove
him, so that his drug convictions thereafter can never form
the basis for his removal. (Petitioner does not claim that the
Attorney General is prevented from seeking removal
because the government knew of the disqualifying
              HERNANDEZ FLORES V. ROSEN                   9

convictions but nonetheless approved petitioner’s SAW
application.)

    The starting point for our analysis is Perez-Enriquez v.
Gonzales, 

463 F.3d 1007

(9th Cir. 2006) (en banc), in which
we held that admissibility under SAW is determined at the
time the petitioner obtains lawful temporary residency.

Id. at 1008

. 
In Perez-Enriquez, after adjusting to lawful
temporary resident status, the agricultural worker was
convicted of crimes that would have rendered him
inadmissible at the time he adjusted to such status.
 

Id. at 1008

–09. 
The Attorney General did not invoke his
discretionary authority under SAW to terminate the
petitioner’s status while the petitioner was a temporary
resident.
 

Id. at 1008

–09. 
The petitioner then automatically
adjusted to lawful permanent resident status. See
 id. The
question in 
Perez-Enriquez was whether the petitioner could
be removed because his convictions rendered him
inadmissible under 8 U.S.C. § 1227(a)(1) at the time of his
adjustment from temporary to permanent resident status.
 Id.
at 1009–10.

    Our en banc court answered that question “no.”
 Id.
at 1015. 
We held that under SAW, “admissibility is
determined as of the date of admission for lawful temporary
residence[] and is not redetermined as of the date of
adjustment to lawful permanent residence.”
 Id. at 1008

(emphasis added). The consequence of this for the petitioner
in Perez-Enriquez was that while the government could still
pursue removal against him, he enjoyed certain “important
protections” as a lawful permanent resident that he would
not have had as an inadmissible alien.
 Id. at 1011.

   Petitioner here is differently situated. While Perez-
Enriquez sustained his convictions after adjusting to
temporary resident status under SAW, Hernandez Flores was
10            HERNANDEZ FLORES V. ROSEN

convicted of his drug offenses before acquiring such status.
See also Gallegos-Vasquez v. Holder, 
636 F.3d 1181
, 1188
(9th Cir. 2011) (involving a petitioner who committed
offenses during his period of SAW temporary residence and
who was thus “in the same position as the petitioner in
Perez-Enriquez”).

    In Perez-Enriquez, we made clear “that admissibility for
an agricultural worker under the SAW program is
determined as of the date of adjustment of status to lawful
temporary resident under § 
1160(a)(1).” 463 F.3d at 1015
.
But Perez-Enriquez does not completely answer the question
here because even if admissibility for purposes of 8 U.S.C.
§ 1227(a)(1) is determined as of the date of adjustment of
status to SAW temporary residence, there remains the
question of when the government can seek petitioner’s
removal based on that inadmissibility. Petitioner argues that
he could only be removed based on his drug convictions
while on temporary resident status. In petitioner’s view,
“[s]ection 1160 clearly states that the only lawful means for
making such a determination is termination of status during
the temporary residency period.” Petitioner thus contends
that because the Attorney General did not invoke this
authority before he automatically adjusted to lawful
permanent resident status, petitioner may not be removed for
any convictions that rendered him inadmissible for SAW
temporary residence.

    Petitioner is not correct. It is true that SAW provides
specific authority for the Attorney General to terminate an
alien’s temporary resident status and thereby prevent
automatic adjustment to permanent resident status under
SAW. 8 U.S.C. § 1160(a)(3); 8 C.F.R. § 210.4(d). But
neither the SAW statutory provisions nor implementing
regulations suggest, much less mandate, that these
              HERNANDEZ FLORES V. ROSEN                   11

provisions are the exclusive means by which the government
may remove an alien on the ground that he was inadmissible
at the time he adjusted to temporary resident status under
SAW. The statute merely provides that in certain situations,
“the Attorney General may terminate” an alien’s lawful
temporary status or “may deny adjustment” to lawful
permanent resident status. 8 U.S.C. § 1160(a)(3)(A)–(B)
(emphasis added); see also 8 C.F.R. § 210.4(d)(2) (echoing
this language). As we thus have observed, “[t]he exercise of
this power is permissive rather than mandatory.” Gallegos-
Vasquez, 636 F.3d at 1182
. The petitioner’s contention that
the government was required to invoke § 1160(a)(3) decades
ago, and is now prevented from removing him based on his
original inadmissibility, is not a valid reading of SAW’s
statutory text or regulations.

    As a result, nothing in SAW precludes the government
from seeking removal under 8 U.S.C. § 1227(a)(1) for a
person in petitioner’s situation. See also Francis v.
Gonzales, 
442 F.3d 131
, 134 n.4 (2d Cir. 2006) (rejecting the
argument that “once permanent resident status is granted
under the SAW program, an alien cannot be deported until
his or her status is rescinded by special procedures set out”
in the regulations implementing 8 U.S.C. § 1160(a)(3)). By
the same token, nothing in § 1227(a)(1) purports to exempt
SAW applicants from its ambit either.

    BIA precedent is in accord. In Matter of Juarez, 20 I. &
N. Dec. 340 (B.I.A. 1991), a special agricultural worker who
had obtained temporary resident status left the United States
and reentered it illegally, at which time he was ordered
deported for entering the United States without inspection,
in violation of 8 U.S.C. § 1251(a)(2) (1988). 20 I. & N. Dec.
at 340–41. The alien argued that he could not be deported
12            HERNANDEZ FLORES V. ROSEN

because the Attorney General had not revoked his temporary
resident status under SAW’s special procedures.
 Id. at 341.

    The BIA rejected this argument. It held that the
procedures for revoking SAW temporary resident status are
“not the exclusive means by which such status may be
terminated” because “the temporary resident status of a
special agricultural worker is automatically terminated
without notice when an immigration judge enters a final
order of deportation based on a determination of
deportability under [8 U.S.C. § 1251].”
 Id. at 343–44.

Juarez thus counsels against petitioner’s assertion that he
cannot be removed except via the mechanism of 8 U.S.C.
§ 1160(a)(3).

    Petitioner points to dicta in Juarez, in which the BIA
stated:

       [A]n alien who, after having established that
       he is admissible to the United States as an
       immigrant, has been granted lawful
       temporary resident status as a special
       agricultural worker, may not be placed in
       deportation proceedings for a deportable
       offense committed prior to the grant of
       temporary resident status unless and until the
       termination of such status is made in
       compliance with the notice and procedural
       requirements set forth in 8 C.F.R.
       §§ 210.4(d)(2) and (3) (1991).

20 I. & N. Dec. at 344. But this dicta does not suggest that
after an alien has adjusted from temporary to permanent
resident status under SAW, the government can no longer
seek his removal for convictions sustained prior to the
alien’s adjustment to temporary status. See Francis,
               HERNANDEZ FLORES V. ROSEN                    
13

442 F.3d at 134 
n.4. That is the far-reaching relief petitioner
requests here, which the statute, regulations, and Juarez do
not support.

     We likewise reject petitioner’s argument, made for the
first time at oral argument, that SAW’s limitations on
administrative and judicial review prevent the government
from seeking his removal, whether before the Immigration
Court, the BIA, or this court. Under SAW, “[t]here shall be
no administrative or judicial review of a determination
respecting an application for adjustment of status under this
section except in accordance with [8 U.S.C. § 1160(e)].”
8 U.S.C. § 1160(e)(1). The statute goes on to require the
Attorney General to “establish an appellate authority to
provide for a single level of administrative appellate review
of such a determination,” with “judicial review of such a
denial” available “only in the judicial review of an order of
exclusion or deportation.”
 Id. § 1160(e)(2)(A), (3)(A).

    Petitioner’s reliance on section 1160(e) is misplaced.
That provision does indeed limit the administrative and
judicial review of determinations “respecting an application
for adjustment of status” under SAW.
 Id. § 1160(e)(1). But

this case does not involve such review. We have not been
asked to evaluate a determination on a SAW application for
adjustment of status, and neither was the IJ or the BIA. For
judicial review, moreover, section 1160(e)(1) applies only to
“direct review of individual denials of SAW status,” McNary
v. Haitian Refugee Ctr., Inc., 
498 U.S. 479
, 492 (1991), and
this case does not require us to review such a denial (in fact,
petitioner was granted status under SAW). The Supreme
Court in McNary thus had no difficulty concluding that
SAW’s limits on judicial review did not preclude a
“challenge[] to unconstitutional practices and policies used
by the agency in processing [SAW] applications.”
 Id. And
14             HERNANDEZ 
FLORES V. ROSEN

we likewise have little difficulty concluding that SAW’s
limits on administrative and judicial review do not preclude
the government from seeking petitioner’s removal based on
convictions he sustained prior to securing SAW temporary
resident status. We are aware of no authority to the contrary,
and petitioner has cited none.

    Finally, petitioner errs in relying on the Supreme Court’s
recent decision in Barton v. Barr, 
140 S. Ct. 1442 
(2020).
As relevant here, Barton rejected the argument that “a
noncitizen is not rendered ‘inadmissible’ unless and until the
noncitizen is actually adjudicated as inadmissible and denied
admission to the United States.”
 Id. at 1451. 
In doing so,
the Court cited the SAW provisions, among other provisions
of the immigration laws, to show that inadmissibility is a
“status” that attaches following certain convictions,
“including for lawfully admitted noncitizens,” regardless of
whether the alien was actually adjudicated at the time to be
inadmissible.
 Id. at 1452. 
As applicable here, Barton merely
confirms that petitioner has been inadmissible since his
felony drug convictions in 1986, despite having been granted
lawful status. Barton provides no support for petitioner’s
assertion that under provisions unique to SAW, he could
only be removed for his drug convictions during the period
of his temporary residency. That is not a tenable reading of
the statute.

     PETITION DENIED.

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