RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 1 of 40 Case No. 16-72269 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RUMEI HUANG, Petitioner, v. LORETTA LYNCH, ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Case No. A 087-957-139 PETITIONER S OPENING BRIEF Janet H. King KING LAW OFFICE D Torres Building Second Floor PMB 197, P.O. Box 10001 Saipan, MP 96950 Tel: (670) 233-1209 Fax: (844) 233-0419
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 2 of 40 TABLE OF CONTENTS Page TABLE OF CONTENTS...* TABLE OF AUTHORITIES...* I. STATEMENT OF JURISDICTION... 1 II. STATEMENT OF THE ISSUES... 2 III. STATEMENT OF THE CASE... 2 IV. SUMMARY OF ARGUMENTS... 7 V. STANDARD OF REVIEW... 12 VI. ARGUMENTS... 12 1. THE BIA ERRED IN NOT HOLDING THAT MS. HUANG WAS ERRONEOUSLY PLACED IN REMOVAL PROCEEDINGS AND ORDERED REMOVED PURSUANT TO 48 U.S.C. 1806(e)(1).......12 A. Ms. Huang Was Improperly Placed in Removal Proceedings Under INA 212(a)(6)(A)(i)...13 B. Ms. Huang Was Improperly Placed in Removal Proceedings Under INA 212(a)(7)(A)(i)(I)...17 C. The Misplaced Reliance on the Representation of a CNMI Official...18
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 3 of 40 2. THE BIA ERRED IN FINDING MS. HUANG INELIGIBLE FOR ADJUSTMENT OF STATUS...20 A. Section 701(e) of the CNRA Constitutes a Congressional Grant of Parole to Aliens in the CNMI...20 B. Positive Factors Support a Favorable Exercise of Administrative Discretion in Granting Ms. Huang Her AOA Application...20 C. The BIA Erred in Upholding the Immigration Judge s Refusal to Administratively Close the Removal Proceedings to Allow Ms. Huang to Adjust Status...26 CONCLUSION... 29 STATEMENT ON BAIL/DETENTION STATUS... 30 STATEMENT OF RELATED CASE... 31 CERTIFICATE OF COMPLIANCE... 32 ADDENDUM... 33 CERTIFICATE OF SERVICE... 34
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 4 of 40 Table of Authorities Cases Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292 (1937)...14 Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012)... 26, 27, 28 Martinez-Garcia v. Ashcroft, 366 F.3d 732 (9th Cir. 2004)...12 Matter of Arai, 13 I&N Dec. 494 (BIA 1970)...24 Matter of Blas, 15 I&N Dec. 626 (BIA 1974, A.G. 1976)...24 Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980)...24 Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981)...24 Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965)...24 Matter of R-R, 20 I&N Dec. 547 (BIA 1992)...14 Nakamoto v. Ashcroft, 363 F.3d 874 (9th Cir. 2004)...12 Ocampo v. Holder, 629 F.3d 923 (9th Cir. 2010)... 2 Statutes 8 U.S.C. 1101(a)(47)(B)... 2 8 U.S.C. 1229a(a)(3)...26 8 U.S.C. 1229(c)(1)(A) (2006)...26 8 U.S.C. 1252... 1 8 U.S.C. 1252(b)(1)... 2 48 U.S.C. 1806(e)(1)... 2, 8, 14 INA 212(a)(6)(A)(i)... passim
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 5 of 40 INA 212(a)(7)(A)(i)(I)... passim INA 240(a)(3)...26 INA 240(c)(1)(A)...26 INA 245(a)...11 INA 245(c)(2)...11 Section 701(e) of the Consolidated Natural Resources Act (CNRA) of 2008 8, 10, 11, 22, 23 Section 702 of the Consolidated Natural Resources Act (CNRA) of 2008...18 Public Law 15-108, Consolidated Natural Resources Act (CNRA) of 2008...14 Rules 8 C.F.R. 239.1(a) (2011)....26 8 CFR 1003.1(b)... 1 8 CFR 1003.1(d)(1)...28 8 CFR 1003.1(d)(1)(ii)...28 8 CFR 1003.10(b)...28 8 CFR 1003.10(b) (2011)...26 8 CFR 1003.14(a) (2011)...26 8 CFR 1240.1(a)(1)(i)...26 8 CFR 1240.1(a)(1)(iv)...26 8 CFR 1240.1(c)...26 8 CFR 1240.11(2011)...26
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 6 of 40 Other Authorities USCIS Policy Memorandum dated August 9, 2011 entitled "Adjudication of Adjustment of Status Applications from Aliens Present in the Commonwealth of the Northern Mariana Islands (CNMI) on or after November 28, 2009"... 15, 23 Constitutional Provisions Article III, Section 11 of the NMI Constitution... 14
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 7 of 40 Case No. 16-72269 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RUMEI HUANG, Petitioner, v. LORETTA LYNCH, ATTORNEY GENERAL, Respondent. I. STATEMENT OF JURISDICTION This is a petition for review of the decision of the Board of Immigration Appeals ( BIA ) dated June 6, 2016 (Certified Administrative Record (CAR) at 000001) which dismissed Petitioner s appeal and essentially affirmed the decision of the Immigration Judge ("IJ") dated September 13, 2011 ordering her removal from the United States and finding her ineligible to apply for adjustment of status. CAR at 000005-00005. The BIA has jurisdiction over appeals of decisions of Immigration Judges in removal proceedings pursuant to 8 CFR 1003.1(b). The Court has jurisdiction over the BIA s final order of removal pursuant 8 U.S.C. 1252. An order of deportation shall become final upon the earlier of 1
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 8 of 40 (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals. 8 U.S.C. 1101(a)(47)(B); see also Ocampo v. Holder, 629 F.3d 923, 928 (9th Cir. 2010) (removal order became final upon BIA s affirmance of order. Petitioner timely filed his petition for judicial review as required by 8 U.S.C. 1252(b)(1) ( The petition for review must be filed not later than 30 days after the date of the final order of removal. ). II. STATEMENT OF THE ISSUES 1. Whether the BIA erred in not finding that Ms. Huang was erroneously placed in removal proceedings and ordered removed pursuant to 48 U.S.C. 1806(e)(1)? 2. Whether the BIA erred in affirming the Immigration Judge s finding and conclusion that Ms. Huang is ineligible for adjustment of status? III. STATEMENT OF THE CASE 1. Petitioner, Rumeu Huang ( Huang ) is a native and citizen of China. CAR at 000237. 2. Ms. Huang was married to her now deceased husband, George Aldan Aguon, a U.S. citizen. Id. at 000238. They were married on December 15, 2010 in 2
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 9 of 40 Saipan, Commonwealth of the Northern Mariana Islands. Id. at 000254; Id. at 000287. 3. On or about July 31, 2010, DHS served Ms. Huang with an NTA alleging that she is an "alien present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General" and was therefore removable pursuant to INA 212(a)(6)(A)(i). Id. at 000307. The NTA also charged Ms. Huang as an "immigrant who, at the time of the application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document" and who was therefore removable under INA 212(a)(7)(A)(i)(I). Id. 4. On August 10, 2010, DHS commenced removal proceedings against Ms. Huang by filing the NTA with the Immigration Court. Id. at 000238. 5. On October 28, 2010, the pro se Ms Huang had her master calendar hearing before Immigration Judge David C. Anderson. Id. at 000246. 6. The October 28, 2019 master calendar hearing was continued to January 26, 2011. Id. at 000250. 7. On January 26, 2011, Ms. Huang had her rescheduled master calendar hearing with Judge Dayna Beamer. Id. at 000251. The January 26, 2011 hearing was then rescheduled to allow Ms. Huang s U.S. citizen husband, Mr. George 3
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 10 of 40 Aguon, to file an I-130 petition for her and to provide the Immigration Court the receipt of filing. Id. at 000256-57. 8. On April 6, 2011, Ms. Huang appeared at the rescheduled master calendar hearing with Judge Beamer. Id. at 000260. At that hearing, Mr. Aguon submitted to the Court a mailing receipt as proof that he already mailed to the USCIS the I-130 petition on behalf of Ms. Aguon. Id.; Id. at 000286. Judge Beamer informed Mr. Aguon that he needed to submit the receipt notice from USCIS showing that it had received the petition he filed for Respondent. Id. at 000260. The hearing was rescheduled for the next day to allow Mr. Aguon to produce the receipt notice from USCIS. Id. 9. On April 7, 2011, Ms. Huang appeared at the rescheduled master calendar hearing before Judge Beamer. Id. at 000263. At the hearing, Mr. Aguon informed Judge Beamer that he was still waiting for receipt notice from the USCIS. Id. at 000264. Ms. Huang also informed the Court that a green card application has been filed. Id. The hearing was thereafter rescheduled to allow Ms. Huang to provide the Court the USCIS receipt notice. Id. 10. On August 16, 2011, Ms. Huang appeared at the rescheduled master calendar hearing before Judge Beamer. Id. at 000268. At the hearing, she submitted the receipt notice from the USCIS. Id. at 000270.; Id. at 000282, 000286. At that hearing, Judge Beamer "passed" the first charge in the NTA and 4
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 11 of 40 proceeded to the second charge. Id. Judge Beamer then sustained the second charge that Ms. Huang "does not have a valid immigrant visa." Id. at 000271. Judge Beamer also informed Ms. Huang that she "will not be able to adjust [Respondent's] status because [she] do[es]n't have proof that [she has been] admitted to the United States by an Immigration Officer." Id. at 000272. The DHS' counsel argued that Ms. Huang's name was in the so-called "213" list. Id. The Immigration Judge concurred with the DHS counsel over the objection of Ms. Huang who insisted that she was registered by the Office of the Ombudsman as a grantee of umbrella permit. Id. at 000274. The matter was then rescheduled for an individual hearing. Id. 11. On September 13, 2011, Ms. Huang appeared at the individual hearing before Judge Beamer. Id. at 000276. She informed the Court that both the petition and green card application are still pending with the USCIS. Id. Ms. Huang also informed Judge Beamer that the USCIS has not scheduled a "visa appointment" yet. Id. at 000276. The DHS counsel also confirmed that the visa appointment was still pending. Id. At that point, Judge Beamer informed Ms. Huang that she is "finish[ing]" the case and had "come to the conclusion that even if the visa was approved, [Ms. Huang] would not be eligible to adjust [her] status." Id. at 000277. Judge Beamer then rendered her oral decision. Id. at 000280. 5
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 12 of 40 12. Ms. Aguon subsequently retained Mr. Stephen Woodruff to assist her on her appeal. 13. On or about October 11, 2011, Mr. Woodruff, on behalf of Ms. Aguon, filed with the BIA a Notice of Appeal from the September 13, 2011 decision of the Immigration Court. CAR at 000227. 14. In the Form EOIR- 26, Mr. Woodruff stated that he would be "filing a separate written brief after filing the Notice of Appeal." Id. However, he failed to submit a written brief. 15. On February 14, 2014, the BIA, in a 2-page decision, dismissed Ms. Huang 's appeal mainly due to Mr. Woodruff's failure to submit a written brief. BIA Decision dated February 14, 2014. Id. at 000201. 16. On or about March 31, 2014, Ms. Huang's new counsel filed with the BIA a Motion to Reopen based on ineffective assistance of her former counsel and requested the BIA to allow Ms. Huang to file a written brief through new counsel. Id. at 000090. 17. On or about April 21, 2014, DHS filed a non-opposition to issuance of a new briefing schedule. Id. at 000086. 18. On September 25, 2014, the BIA vacated its February 14, 2014 decision. Id. at 000078-79. 6
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 13 of 40 19. On May 20, 2015, the BIA issued a Briefing Schedule. See Briefing Schedule dated May 20, 2015. Id. at 000067. 20. Sometime in June 2015, the DHS, even before Ms. Huang can file her appeal brief with the BIA, filed its brief requesting, among others, for a summary affirmance of the Immigration Judge s decision dated September 13, 2011. Id. at 000064. 21. Ms. Huang, also sometime in June 2015, filed a Briefing Extension request which was granted. Id. at 000056. 22. On June 8, 2015, the BIA issued a New Briefing Schedule. Id. at 000053. 23. Sometime in July 2015, Ms. Huang filed her appeal brief with the BIA. Id. at 000009. 24. On June 6, 2016, the BIA dismissed Ms. Huang's appeal and affirmed the IJ's decision dated September 13, 2011. Id. at 000003. IV. SUMMARY OF ARGUMENTS The BIA erred in upholding the charges in the NTA in this case. Here, Ms. Huang was improperly charged with removability under INA 212(a)(6)(A)(i) (alien present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General). Congress directed that aliens in the CNMI are not removable 7
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 14 of 40 under INA 212(a)(6)(A) for the first two years of the transition period if they were in a lawful immigration status granted by the CNMI government before the start of the transition period. See 48 U.S.C. 1806(e)(1). Ms. Huang was the holder of a valid and unrevoked umbrella permit issued by the CNMI Attorney General before November 28, 2009. Hence, Ms. Huang should have never been placed in removal proceedings based on INA 212(a)(7)(A)(i)(I) because umbrella permits are explicitly recognized by the Department of Homeland Security as providing a basis for lawful presence under Section 701(e) of the CNRA. Ms. Huang was also improperly charged with removability under INA 212(a)(7)(A)(i)(I) (immigrant who, at the time of the application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document). INA 212(a)(7)(A)(i)(I) (for which Ms. Huang was found removable and INA 212(a)(6)(A)(i), are closely related inadmissibility grounds so far as they apply to Ms. Huang and other aliens present in the CNMI before November 28, 2009. Given Congress recognition and de facto extension of these aliens lawful CNMI immigration status (see CNRA 702, 48 U.S.C. 1806(e), appropriate documents for this purpose are valid, unexpired passports and other documentary evidence of lawful presence in the CNMI. These documents include certain CNMI-issued evidence of lawful status during the first 8
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 15 of 40 two years of the transition period, including umbrella permits. Ms. Huang was the holder of a valid and unrevoked umbrella permit issued by the CNMI Attorney General before November 28, 2009 at the time she was served the NTA on July 31, 2010 and when the removal proceedings were commenced on August 10, 2010. Ms. Huang therefore was also improperly placed in removal proceedings based on INA 212(a)(7)(A)(i)(I). Both the BIA and the Immigration Judge ostensibly relied on a so-called 213 list from the CNMI Government which the DHS counsel vaguely referred to during the August 16, 2011 hearing. That evidence does not appear to be on record. Similarly, the BIA, in its June 6, 2016 decision similarly relied on the Record of Deportable Alien that generally referred to Ms. Huang as having been identified as an alien illegally residing within the CNMI who does not have a valid unexpired Commonwealth of the Northern Mariana Islands Umbrella Permit but without identifying its source of information that Ms. Huang does not have an umbrella permit. Even if the so-called 213 list exists on the record, the validity of that list is dubious. Ms. Huang was in the list of aliens who were granted umbrella permits by the CNMI Attorney General before November 28, 2009. There was no evidence on record that Ms. Huang failed to comply with any conditions of her umbrella permit that could have resulted to its revocation. There has been no meaningful and effective revocation process of such umbrella permits 9
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 16 of 40 issued by the CNMI Attorney General that took place at any time before November 28, 2009 when the CNMI Government still has the power and authority to issue and revoke permits. In short, Ms. Huang has a valid umbrella permit issued by the CNMI Attorney General before November 28, 2009 at the time the removal proceeding was commenced, precluding her removability under both INA 212 (a)(6)(a)(i) and 212 (a)(7)(a)(i)(i). The BIA also erred in affirming the Immigration Judge s determination that Ms. Huang was ineligible for adjustment of status. The principal ground relied upon by both the BIA and the Immigration Judge in finding Ms. Huang to be ineligible to apply for adjustment of status ( AOS ) is that she purportedly has not been admitted or paroled into the United States. Based on 701(e) of the CNRA, Ms. Huang was in lawful status in the CNMI during the entire period of the validity of her umbrella permit from November 27, 2009 until November 27, 2011 which coincides with the statutory period of lawful presence of certain aliens in the CNMI. Under 701(e) of the CNRA there, Ms. Huang may not be removed from the United States on the grounds that such alien s presence in the Commonwealth is in violation of section 212(a)(6)(A) of the [INA]. Section 701(e) of the CNRA should therefore be logically read as a congressional grant of parole for those aliens who were lawfully present in the CNMI on the transition effective date on November 28, 2009 who, without such congressional grant, 10
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 17 of 40 would have been removable under INA 212(a)(6)(A). Here, the Immigration Judge s determination, which the BIA affirmed, that Ms. Huang is ineligible to apply for adjustment of status because she purportedly was not "admitted or paroled into the United States' as a matter of law" was clearly erroneous. At the time Ms. Huang was served with the NTA on or about July 31, 2010 and at the time she filed her application for adjustment of status while on removal proceedings, she was effectively on parole pursuant to Section 701(e) of the CNRA. Furthermore, based on USCIS policy, Ms. Huang is deemed admitted to the United States on November 28, 2009. See USCIS Policy Memorandum dated August 9, 2011, CAR at 000041) ("For purposes of INA section 245(c)(2), the alien s entry into the United States shall be considered to have taken place on November 28, 2009, if the alien was present in a CNMI-granted status on that date.") Ms. Huang was therefore both admitted and paroled to the United States, by operation of law, and was therefore eligible for adjustment of status. INA 245(a) ( The status of an alien who was inspected and admitted or paroled into the United States may be adjusted to that of an alien lawfully admitted for permanent residence... ) 11
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 18 of 40 V. STANDARD OF REVIEW Questions of law are reviewed de novo, Martinez-Garcia v. Ashcroft, 366 F.3d 732, 733 (9th Cir. 2004), and the BIA s factual findings are reviewed for substantial evidence, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir. 2004). VI. ARGUMENTS 1. THE BIA ERRED IN NOT HOLDING THAT MS. HUANG WAS ERRONEOUSLY PLACED IN REMOVAL PROCEEDINGS AND ORDERED REMOVED CONTRARY TO 48 U.S.C. 1806(e)(1). Ms. Huang was charged with removability under INA 212(a)(6)(A)(i) (alien present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General) and INA 212(a)(7)(A)(i)(I) (immigrant who, at the time of the application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document). CAR at 000307. In a rather unusual fashion, the Immigration Judge omitted to mention in her decision the exact charges contained in the NTA. CAR at 000238. Nonetheless, the Immigration Judge determined that Respondent is removable only on the second charge under INA 212(a)(7)(A)(i)(I). Id. ("During a master calendar hearing on August 16, 2011, the Court... made a determination that respondent is removable on the second charge under Section 212(a)(7)(A)(i)(I) of the Act."); see 12
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 19 of 40 also Id. at 000242 ("IT IS HEREBY ORDERED that the respondent be removed from the United States to China on the second charge contained in the Notice to Appear under Section 212(a)(7)(A)(i)(I) of the Act."). Despite declining to rule on Respondent's removability on the first charge under INA 212(a)(6)(A)(i) (as an alien present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General), the Immigration Judge made a separate determination that Respondent has not been "admitted or paroled into the United States" as a basis of her conclusion that Respondent was ineligible for adjustment of status. See Id. at 000241-42 ("[I]n this case the Court... finds the respondent even if admitted into the Commonwealth by a former CNMI Immigration Officer, was not 'admitted or paroled into the United States' as a matter of law and, therefore, the respondent is ineligible to apply for adjustment of status." (internal quotation in original; emphasis added). A. Ms. Huang was Improperly Placed in Removal Proceeding Under INA 212(a)(6)(A)(i). Ms. Huang was improperly placed in removal proceedings based on INA 212(a)(6)(A)(i) (alien present in the United States without being admitted or paroled or who arrived in the United States at any time or place other than as designated by the Attorney General). The BIA and the Immigration Judge should 13
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 20 of 40 have taken judicial or administrative notice of commonly known relevant events in the CNMI before November 28, 2009, particularly those pertaining to the issuance of umbrella permits by the CNMI Government to aliens. See BIA Practice Manual, Chapter 4.8(c) (May 11, 2015) ("(c) Administrative notice on appeal. The Board may, at its discretion, take administrative notice of commonly known facts not appearing in the record. 8 C.F.R. 1003.1(d)(3)(iv)."); see also, Matter of R-R-, 20 I&N Dec. 547 (BIA 1992) citing Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292 (1937) (Administrative agencies and the courts may take judicial (or administrative) notice of commonly known facts.) It is important to point out here that before November 28, 2009, aliens present in the CNMI became present in the United States by operation of the law, without admission or parole. Congress directed that aliens in the CNMI are not removable under INA 212(a)(6)(A) for the first two years of the transition period if they were in a lawful immigration status granted by the CNMI government before the start of the transition period. See 48 U.S.C. 1806(e)(1). Before November 28, 2009, the CNMI Government controlled its immigration through CNMI P.L. 15-108. Under Article III, Section 11 of the NMI Constitution and 1 CMC 2151, et. seq., as amended, the CNMI Attorney General enforced all immigration laws in the CNMI. While CNMI P.L. 15-108 was eventually superseded by P.L. 110-229, the Consolidated Natural Resources Act of 2008 14
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 21 of 40 ( CNRA ), it was in effect before November 28, 2009. Hence, up until November 27, 2009, the CNMI government was still in charge of its own immigration, including the authority to issue permits under CNMI immigration laws. It is axiomatic that after November 27, 2009, the CNMI government had lost all its authority over CNMI immigration matters, including the authority to revoke any permit it may have granted before November 28, 2009. The CNRA contains the following provisions (commonly referred to as the grandfather provisions ) related to the continuation of presence in the CNMI: Any individual lawfully present under the CNMI immigration laws as of the November 28, 2009 transition date may remain in the CNMI until the expiration of the alien s authorized period of stay or until November 27, 2011, whichever is earlier; and Any individual with a CNMI work authorization as of the transition date retains such authorization until its expiration date or November 27, 2011, whichever is earlier. 1 According to USCIS policy, while the above authorized period of stay does not constitute status under the INA, an alien who is within this authorized period of stay when filing an application for adjustment will not be in unlawful 1See USCIS Policy Memorandum dated August 9, 2011 entitled "ADJUDICATION OF ADJUSTMENT OF STATUS APPLICATIONS FROM ALIENS PRESENT IN THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS (CNMI) ON OR AFTER NOVEMBER 28, 2009", CAR at 000041. 15
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 22 of 40 immigration status for purposes of INA 245(c)(2). Id. Hence, for purposes of INA 245(c)(2), the alien s entry into the United States shall be considered to have taken place on November 28, 2009, if the alien was present in a CNMIgranted status on that date. Id. Ms. Huang believes that she should have not been placed in removal proceeding based on both charges in the NTA. When she was served the NTA on or about July 31, 2010, Ms. Huang was protected from removal under Public Law 110-222 (CNRA) as she then has an umbrella permit granted by the CNMI Government. It is a commonly known fact in the CNMI, that before November 28, 2009, the CNMI Government published in several newspapers list of aliens who were granted umbrella permits by the CNMI Attorney General. Ms. Huang was among those included in that list. CAR at 000184-187. Such umbrella permits would have been valid for 2 years from date of their issuance. See 48 U.S.C. 1806(e)(1). There is no evidence here that the CNMI Attorney General effectively revoked those umbrella permits. Neither was there any evidence on record that Ms. Huang did not meet the conditions required by the notice pertaining to her umbrella permits. Umbrella permits are explicitly recognized by the Department of Homeland Security as providing a basis for lawful presence under Section 701(e) of the CNRA. Title VII, Section 701(e)(1)(A) of the CNRA states, in pertinent part, that no alien who is lawfully present in the Commonwealth 16
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 23 of 40 pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be removed from the United States on the grounds that such alien s presence in the Commonwealth is in violation of section 212(a)(6)(A) of the [INA], until the earlier date (i) of the completion of the period of the alien s admission under the immigration laws of the Commonwealth; or (ii) that is 2 years after the transition program effective date...[unless].... the alien entered the Commonwealth entered the Commonwealth after the effective date of enactment of the Consolidated Natural Resources Act of 2008. Therefore, because Ms. Huang had an umbrella permit, under a plain reading of 701(e) of the CNRA, she was, at the time she was served the NTA, lawfully present under CNMI law and the CNRA and is therefore not subject to removal under both INA 212(a)(6)(A) nor under INA 212 (a)(7)(a)(i)(i). A. Ms. Huang was Improperly Placed in Removal Proceeding Under INA 212(a)(7)(A)(i)(I). Ms. Huang was also improperly placed in removal proceedings based on INA 212(a)(7)(A)(i)(I) (immigrant who, at the time of the application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document). Here, the Immigration Judge determined that Ms. Huang is removable only under INA 212(a)(7)(A)(i)(I). CAR at 000031, 000035. Notably, the 17
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 24 of 40 Immigration Judge declined to rule on the first charge under INA 212(a)(6)(A)(i) and in fact, specifically passed that first charge. Id. at 000270. However, the 2 charges in the NTA, i.e. INA 212(a)(7)(A)(i)(I) and INA 212(a)(6)(A)(i), are closely related inadmissibility grounds so far as they apply to Ms. Huang and other aliens who were present in the CNMI before November 28, 2009. Given the unique situation of the CNMI and Congress recognition and de facto extension of these aliens lawful CNMI immigration status (see CNRA 702, 48 U.S.C. 1806(e), appropriate documents for this purpose can include a valid, unexpired passport and other documentary evidence of lawful presence in the CNMI. These documents include certain CNMI-issued evidence of lawful status during the first two years of the transition period, including umbrella permits. As discussed previously, Ms. Huang was a holder of a valid and unrevoked umbrella permit issued by the CNMI Attorney General before November 28, 2009 when she was served the NTA on July 31, 2010 and when the removal proceedings were commenced on August 10, 2010. Hence, Ms. Huang was therefore improperly placed in removal proceedings based on INA 212(a)(7)(A)(i)(I) as well. B. The Misplaced Reliance on the Representation of a CNMI Official. One of the issues raised in the FORM EOIR-26, Notice of Appeal was "DHS misplaced reliance on representation of a CNMI official." CAR at 000227. At the August 16, 2011 hearing, DHS counsel made a vague reference to a "213 list." Id. 18
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 25 of 40 at 000273. On the other hand, the BIA, in its decision dated June 6, 2016, similarly relied on the Record of Deportable Alien (CAR at 000288-289) which vaguely refer to Ms. Huang as having been identified as an alien illegally residing within the CNMI who does not have a valid unexpired Commonwealth of the Northern Mariana Islands Umbrella Permit. Id. at 000289. Notably, the Record of Deportable Alien does not itself identify its source of information that Ms. Huang does not have an umbrella permit. In any event, the so-called 213 list does not appear to be on the evidence on record. But, even if it was, it appears that DHS, like it had done in other removal cases involving aliens similarly situated, may have relied on a so-called over stayers' list that was issued by a former CNMI official after November 28, 2009 purportedly showing that those aliens listed are without a status in the CNMI. The validity of such list as it applies to Ms. Huang is dubious at best. First, as previously pointed out, Ms. Huang was in the list of aliens who were granted umbrella permits by the CNMI Attorney General before November 28, 2009. CAR at 000184. Second, there was no evidence on record that Ms. Huang failed to comply with any conditions of her umbrella permit that could have resulted to its revocation. Third, there has been no meaningful and effective revocation process of such umbrella permits issued by the CNMI Attorney General that took place at any time before November 28, 2009 when the CNMI Government still has the 19
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 26 of 40 power and authority to issue and to revoke permits. Fourth, because the CNMI Government had lost all authority to revoke permits beginning November 28, 2009, all permits otherwise lawfully issued to aliens by the CNMI Government before November 28, 2009 cannot be rendered of no effect by the simple expedience of a former CNMI Official certifying that any person found in that list is an overstay. In sum, the record shows that Ms. Huang had an umbrella permit issued by the CNMI Attorney General before November 28, 2009, which has never been properly and effectively revoked. Hence, she cannot be removable under both INA Section 212 (a)(6)(a)(i) and Section 212 (a)(7)(a)(i)(i). 2. THE BIA, LIKE THE IMMIGRATION JUDGE, ERRED IN FINDING MS HUANG TO BE INELIGIBLE TO APPLY FOR ADJUSTMENT OF STATUS. A. Section 701(e) of the CNRA constitutes a congressional grant of parole to aliens in the CNMI. The status of an alien who was inspected and admitted or paroled into the United States may be adjusted to that of an alien lawfully admitted for permanent residence if she or he (1) applies for adjustment; (2) is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (3) an immigrant visa is immediately available to her/him at the time her/his application is filed. INA 245(a). 20
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 27 of 40 One of the grounds relied upon by both the BIA and the Immigration Judge in finding Ms. Huang to be ineligible to apply for adjustment of status ( AOS ) is that she purportedly has not been admitted or paroled into the United States. CAR at 000003. The BIA s decision reads, in pertinent parts, as follows: Id. There is no evidence or assertion that the respondent was admitted into the CNMI on or after November 28, 2009, and we have held that an alien's pre-november 28, 2009, admission to CNMI by the CNMI Immigration Service does not constitute an inspection and admission or parole "into the United States" for purposes of adjustment of status pursuant to section 245(a) of the Act. Matter of C. Valdez, 25 I&N Dec. 824, 824 (BIA 2012). 2 As preliminary matter, it must be pointed out here that the Immigration Judge erred in finding that Ms. Huang no pending application for adjustment of status during the removal hearing. CAR at 000240. At the April 7, 2011 hearing, Ms. Huang informed the Immigration Judge that a green card application has 2 Ms. Huang would note that the Immigration Judge previously found her removable under INA 212(a)(2)(A)(i)(I) a ground of inadmissibility and which should have necessarily impacted the fourth requirement as well, i.e. is admissible to the United States. See, Matter of Rainford, 20 I&N Dec. 598 (BIA 1992) (persons deportable but not inadmissible under INA 212(a) may adjust status). Notwithstanding, Ms. Huang further note that in a Statement filed by her former counsel on January 26, 2012, he specifically requested on Ms. Huang s behalf for a consideration of a Section 212(h) waiver of inadmissibility. See Exh. 7. at 4. The IJ s limiting himself to the issue of inspection and admission, or paroled into the U.S. implicitly suggests that the IJ granted Ms. Huang s request for Section 212(h) waiver of inadmissibility. 21
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 28 of 40 already been mailed to the USCIS. Id. at 000265. Indeed, at that time there were in fact a pending I-130 petition and an I-485 application that were concurrently filed. Id. at 000037, 000039. As previously discussed, based on 701(e) of the CNRA, Ms. Huang was in lawful status in the CNMI during the entire period of the validity of her umbrella permit from November 27, 2009 until November 27, 2011 which coincides with the statutory period of lawful presence of certain aliens in the CNMI. Under 701(e) of the CNRA there, Ms. Huang may not be removed from the United States on the grounds that such alien s presence in the Commonwealth is in violation of section 212(a)(6)(A) of the [INA]. The INA 212(a)(6)(A) referenced in Section 701(e) of the CNRA is entitled ALIENS PRESENT WITHOUT ADMISSION OR PAROLE. It reads as follows: parole.- (6) Illegal entrants and immigration violators.- (A) ALIENS PRESENT WITHOUT admission or (i) In general.-an alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. Ms. Huang submits that Section 701(e) of the CNRA may be logically read 22
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 29 of 40 to be as a congressional grant of parole for those aliens who were lawfully present in the CNMI on the transition effective date on November 28, 2009 who, without such congressional grant, would have been removable under INA 212(a)(6)(A). See USCIS Policy Memorandum dated August 9, 2011, CAR 000041) ("While the above authorized period of stay does not constitute status under the INA, an alien who is within this authorized period of stay when filing an application for adjustment will not be in unlawful immigration status for purposes of INA section 245(c)(2).") Here, the Immigration Judge found Ms. Huang to be ineligible to apply for adjustment of status because she purportedly was not "admitted or paroled into the United States' as a matter of law." CAR at 000241-000242. This was clearly erroneous. When Ms. Huang was served with the NTA on or about July 31, 2010 and at the time she filed her application for adjustment of status on or about April 10 2011, she was effectively on parole pursuant to Section 701(e) of the CNRA. Furthermore, based on USCIS policy, Ms. Huang is deemed admitted to the United States on November 28, 2009. See USCIS Policy Memorandum dated August 9, 2011, CAR at 000041) ("For purposes of INA section 245(c)(2), the alien s entry into the United States shall be considered to have taken place on November 28, 2009, if the alien was present in a CNMI-granted status on that date.") 23
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 30 of 40 Ms. Huang was therefore both admitted and paroled to the United States, by operation of law, and was therefore eligible for adjustment of status. INA 245(a) ( The status of an alien who was inspected and admitted or paroled into the United States may be adjusted to that of an alien lawfully admitted for permanent residence... ) B. Positive factors support a favorable exercise of administrative discretion in granting Ms. Huang her AOS application. If eligibility is established, adjustment of status may be granted in the exercise of discretion. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The alien bears the burden of establishing eligibility for adjustment of status and demonstrating that relief is merited in the exercise of discretion. See Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Blas, 15 I&N Dec. 626 (BIA 1974, A.G. 1976). The Court s discretionary decision depends on the facts of the particular case and, as such, is a matter of discretion and of administrative grace, not mere eligibility; discretion must be exercised... even though the statutory prerequisites have been met. Matter of Ortiz-Prieto, 11 I&N Dec. 317, 319 (BIA 1965); see also Matter of Blas, 15 I&N Dec. at 628. A favorable exercise of administrative discretion is warranted where positive factors, such as family ties, length of residency, and hardship, outweigh adverse considerations. Matter of Arai, 13 I&N Dec. at 496. 24
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 31 of 40 Ms. Huang submits that there are no adverse factors present here in determining whether AOS can be granted to her as a matter of discretion. If there are any, they are far outweighed by then positive factors that support a favorable exercise of discretion in granting her requested AOS. At the time of Ms. Huang s application, her husband, George A. Aguon, was then a 60-year old U.S. citizen, was admitted on December 8, 2013 to the Commonwealth Health Center with an "acute hemorrhagic stroke." CAR at 000189. According to the attending physician, Dr. Joel Smith, Ms. Huang's husband has a "permanent neurologic deficit related to the stroke and cannot speak or move his arm and leg." Id. He "is being given his daily nutrition through a feeding tube since he cannot sw[a]llow normally." Id. Most importantly, the attending physician has attested that Ms. Huang's husband is permanently disabled and will required complete care for all of his activities of daily living for the rest of his life." Id. 3 Furthermore, Ms. Huang has always been a law abiding citizen in the CNMI. She has never been involved in any criminal activities and has long been in the CNMI. 3 Although Mr. Aguon had since passed away, these favorable factors should have been then accorded weight and consideration. 25
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 32 of 40 C. The BIA erred in upholding the Immigration Judge s refusal to administratively close the removal proceeding to allow Ms. Huang to adjust status. "Administrative closure is a procedural tool created for the convenience of the Immigration Courts and the Board." Matter of Avetisyan, 25 I&N Dec. 688, 690 (BIA 2012). "Immigration proceedings are civil proceedings undertaken to determine an individual s eligibility to remain in the United States." Id. (internal citations omitted). While, the DHS has the sole discretion to initiate removal proceedings (8 C.F.R. 239.1(a) (2011)), once the notice to appear is filed with the Immigration Court, jurisdiction over the proceedings vests with the Immigration Judge. 8 C.F.R. 1003.14(a) (2011). From that point, it is the Immigration Judge's responsibility to determine if respondent can be removed and also to adjudicate respondent s application for relief from removal, if any. Sections 240(a)(3), (c)(1)(a) of the Act, 8 U.S.C. 1229a(a)(3), (c)(1)(a) (2006); 8 C.F.R. 1240.1(a)(1)(i), 1240.11(2011). In the conduct of proceedings, an Immigration Judge exercises the powers and duties delegated to him by law and regulation. 8 C.F.R. 1003.10(b) (2011). An Immigration Judge has the authority to regulate the course of the hearing and to take such appropriate action as may be consistent with applicable law and regulations. 8 C.F.R. 1240.1(a)(1)(iv), (c). "In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and 26
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 33 of 40 regulations that is appropriate and necessary for the disposition of such cases." Avetisyan, at 691. During the removal proceedings before Immigration Judge, there were already then an I-130 petition and an I-485 AOS application pending before the USCIS. After going through several continued hearings where the she repeatedly endeavored, first to get Ms. Huang's U.S. citizen husband file an I-130 petition and then to have Ms. Huang submit the receipt notice(s) from USCIS, and despite being informed by both Ms. Huang and DHS' counsel that the visa petition and adjustment application were then still pending (CAR at 000276), the Immigration Judge during the September 13, 2011 hearing unilaterally "finished" the case and announced to the parties that she had "come to the conclusion that even if the visa was approved, Ms. Huang would not be eligible to adjust [her] status." CAR at 000277-278. Ms. Huang believes that the Immigration Judge abused her discretion in not deferring to the USCIS and await the USCIS' action on the then pending matters before it. Under that circumstances, the Immigration Judge should have administratively closed the proceedings to allow USCIS to independently adjudicate the then pending I-130 petition and I-485 application. See Avetisyan, at 692. ("In general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of 27
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 34 of 40 time.") The Immigration Judge's failure to administratively close the proceedings and defer further action, when the circumstances warrant it, was therefore "inconsistent with the Act and the regulation that is appropriate and necessary for the disposition of the case." 8 C.F.R. 1003.10(b). Administrative closure is also a procedural created for the convenience of the Board. Avetisyan at 690. "The Board is similarly empowered by the Attorney General through regulation to resolve the questions before it on appeal in a manner that is timely, impartial, and consistent with the Act." Id. at 691; 8 C.F.R. 1003.1(d)(1). The Board may also exercise independent judgment and discretion in considering and determining the cases coming before it, and it may take any action consistent with its authority under the Act and the regulations as is appropriate and necessary for the disposition of the case. Id.; 8 C.F.R. 1003.1(d)(1)(ii). Ms. Huang therefore submits that the BIA erred in affirming the Immigration Judge s refusal to administratively close this matter to allow Ms. Huang to pursue and complete the process of adjusting status. 28
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 35 of 40 CONCLUSION Based upon the foregoing reasons, the BIA s decision dated June 6, 2016 affirming the Immigration Judge s decision dated September 13, 2011 should be reversed and that Petitioner, Rumei Huang be granted adjustment of status. Dated: January 10, 2017. /s/ Janet H. King JANET H. KING, ESQ. King Law Office Attorney for Petitioner 29
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 36 of 40 STATEMENT ON BAIL/DETENTION STATUS Pursuant to Circuit Rule 28-2.4(b), Petitioner states that she is not detained in the custody of the Department of Homeland Security, and she has not moved the Board of Immigration Appeals to re-open or applied to the district director for an adjustment of status. 30
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 37 of 40 STATEMENT OF RELATED CASES Pursuant to Circuit Rule 28-2.6, Petitioner states that she is not aware of any other case particularly related to this case in this Court. 31
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 38 of 40 CERTIFICATE OF COMPLIANCE I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached Petitioner s Opening Brief is proportionately spaced, has a typeface of 14 points, and contains 6,520 words. Dated January 10, 2017 /s/ Janet H. King JANET H. KING, ESQ. King Law Office Attorney for Petitioner 32
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 39 of 40 ADDENDUM 1. Written Decision of the Immigration Judge dated September 13, 2011 2. Order of the Board of Immigration Appeals dated June 6, 2016 33
RESTRICTED Case: 16-72269, 01/10/2017, ID: 10261504, DktEntry: 10-1, Page 40 of 40 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on January 10, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated January 10, 2017 /s/ Janet H. King JANET H. KING, ESQ. King Law Office Attorney for Petitioner 34