case no. 16-72269 in the united states ... - law.hawaii.edu...placed in removal proceedings and...

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, 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


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


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


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


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


1

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


2

(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


3

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


4

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


5

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.


6

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.


7

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


8

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


9

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


10

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,


11

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. . .”)


12

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


13

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


14

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


15

(“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.


16

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 CNMI-

granted 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


17

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


18

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.


19

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


20

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).


21

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:

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

Id.

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.


22

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:

(6) Illegal entrants and immigration violators.-

(A) ALIENS PRESENT WITHOUT admission or

parole.-

(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


23

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.")


24

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.


25

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.


26

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


27

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


28

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.


29

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


30

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.


31

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.


32

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



33

ADDENDUM

1. Written Decision of the Immigration Judge dated September 13, 2011

2. Order of the Board of Immigration Appeals dated June 6, 2016


34

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



case no. 16-72269 in the united states ... - law.hawaii.edu...placed in removal proceedings and...

Documents