On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A077-832-827.
The opinion of the court was delivered by: Silverman, Circuit Judge
Argued and Submitted December 15, 2008 -- Pasadena, California
Before: Alex Kozinski, Chief Judge, Harry Pregerson, Diarmuid F. O'Scannlain, Pamela Ann Rymer, Andrew J. Kleinfeld, Barry G. Silverman, M. Margaret McKeown, Raymond C. Fisher, Richard A. Paez, Consuelo M. Callahan and N. Randy Smith, Circuit Judges.
Opinion by Judge Silverman; Concurrence by Judge Paez; Dissent by Judge Pregerson.
Mario Sanchez petitions for review of the Board of Immigration Appeals's affirmance of the Immigration Judge's decision denying him cancellation of removal because he could not meet the "good moral character" requirement of 8 U.S.C. § 1229b(b)(1). Persons who have knowingly encouraged or assisted other aliens to enter the United States illegally may not be found to have good moral character. 8 U.S.C. §§ 1101(f)(3), 1182(a)(6)(E). In the inadmissibility context, such persons may obtain a waiver of inadmissibility if the only person smuggled into the U.S. was their own spouse, parent, son, or daughter. 8 U.S.C. § 1182(d)(11). We took this case en banc to resolve whether the alien smuggling inadmissibility waiver in § 1182(d)(11) applies to an application for cancellation of removal. May an applicant for cancellation of removal demonstrate good moral character notwithstanding his participation in family-only smuggling?
We hold today that he cannot, overruling Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005).
Sanchez first entered the United States in April 1988 without inspection, and resided here without lawful status. He has left the United States only once since then, returning to Mexico for three weeks in August 1993 to get married. After the wedding, he paid a "coyote" $1,000 to smuggle himself and his new wife into the United States.
In May 2000, the Immigration and Naturalization Service charged Sanchez with removability as an alien found present in the United States without being admitted or paroled. Sanchez conceded removability and requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b) on the ground that removal would result in exceptional and extremely unusual hardship to his U.S. citizen children and lawful permanent resident father. After a hearing, the IJ found that Sanchez had met the statutory qualifications for cancellation of removal in all but one respect: he was barred from establishing good moral character because he helped his wife enter the country illegally in 1993. The IJ reasoned that Sanchez's conduct made him "a member of one or more of the classes of persons" - in this case, a smuggler under 8 U.S.C. § 1182(a)(6)(E) - who by statute cannot be found to have good moral character. See 8 U.S.C. § 1101(f)(3). In an unpublished decision, the BIA affirmed the IJ's decision. The Board reasoned that Sanchez's "smuggling activities d[id] not fall within the exceptions to section 212(a)(6)(E)(i) of the Act listed in clauses (ii) and (iii) of that provision." See 8 U.S.C. § 1182(a)(6)(E)(ii), (iii).
Sanchez petitioned for review. When this case was before the three-judge panel in Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008), the panel granted the petition, holding that the reasoning of our 2005 decision in Moran v. Ashcroft controlled. In Moran, the court "translat[ed]" the "family unity" waiver of inadmissibility in § 1182(d)(11), which is referenced in § 1182(a)(6)(E)(iii) "into the language of cancellation of removal" to hold that an alien applying for cancellation of removal "would be eligible for the waiver . . . if the only individuals he had helped smuggle into the country were his son and his spouse." 395 F.3d at 1093-94. The panel in this case noted the tension between Moran and Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000). Khourassany held that an alien who had paid a smuggler to bring his wife and child into the United States illegally from Mexico could not meet the "good moral character" requirement for voluntary departure, and that "[n]o exceptions or other waivers to the alien smuggler provision appl[ied]." Id.
The three-judge panel in the case at bar held that under the reasoning, albeit not the actual holding, of Moran, Sanchez appeared to be eligible for the family unity waiver. Sanchez, 521 F.3d at 1110. Judge Wallace, writing separately, suggested that the conflict between Moran and Khourassany should be resolved by the en banc court, and that Moran "disregard[ed] the plain meaning of the relevant statutes." Id. at 1111, 1114 (Wallace, J., writing separately). It is in this context that we reheard en banc the petition for review.
In reviewing the agency's construction of a statute under Chevron, the first question we confront is "whether Congress has directly spoken to the precise question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Because we find the meaning of the statutory text to be clear, "that is the end of the matter," and we need not take advantage of agency expertise in construing the statute. Id. at 842-43.
 "In attempting to determine the meaning of a statute, 'we look first to the plain meaning . . . and give effect to that meaning where fairly possible.' " Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir. 2005) (quoting Lagandaon v. Ash-croft, 383 F.3d 983, 987 (9th Cir. 2004)). The statute governing cancellation of removal and adjustment of status for certain nonpermanent residents like Sanchez, 8 U.S.C. § 1229b(b)(1) (2006), requires that the alien:
(A) ha[ve] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) ha[ve] been a person of good moral character during such period;
(C) ha[ve] not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or ...