http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf
Saldivar v. Sessions, 9th Cir., 11-07-17, published
PANEL: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.
OPINION BY: Judge Reinhardt
DISSENT: Judge Kozinski
KEY QUOTE:
“The structure of § 1229b thus confirms what was already unambiguously clear from the plain meaning of the text: the statute requires continuous presence for seven years after a procedurally lawful admission in any immigration status, lawful or unlawful.8 Perhaps, had Congress required admission “in any status whatsoever” in § 1229b(a)(2), the government might have acknowledged that unlawful status was covered by the phrase it now finds ambiguous. However, as we have explained, the term “any,” in its plain meaning, is all-inclusive and any further language would be pure surplusage. In short, any is any, and a status is a status, be it lawful or unlawful.”
JUDGE KOZINSKI, DISSENTING, WAS UNIMPRESSED:
“My colleagues misread the INA, trample our precedent and turn their backs on Chevron, all to create a giant loophole that will enable thousands to lie their way to relief that Congress never intended them to have. The Fifth Circuit got it wrong and the Ninth now follows them down the rabbit hole. It’s time for another opinion.”
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Read the complete opinion at the link.
The 9th Circuit majority declines to give the “Chevron deference” to the BIA precedent Matter of Blancas- Lara, 23 I. & N. Dec. 458, 460 (BIA 2002) by finding the statute “unambiguous.” So far, no “Circuit split.”
Undoubtedly, migrants without visas arriving at the border have lots of reasons to lie or otherwise misrepresent. However, with due deference to Judge Kozinski, it seems highly unlikely that the off-chance of applying for discretionary relief 10 years in the future would be one of them.
I find it interesting that it has taken 15 years since the BIA’s decision in Blancas-Lara for the Article IIIs to come to grips with the issue.
PWS
11-11-17