Lezama-Garcia v. Holder

States while the application for adjustment of status is pending, he or she must file a request for advance parole authorization on an Application for Travel Document (Form I–131), with fee as set forth in § 103.7(b)(1) of this chapter and in accordance with the instructions on the form. If the alien is either in deportation or removal proceedings, or subject to a final order of deportation or removal, the Form I–131 must be submitted to the Assistant Commissioner for International Affairs; otherwise the Form I–131 must be submitted to the director of the Texas Service Center, who shall have jurisdiction over such applications. Unless the applicant files an advance parole request prior to departing from the United States, and the Service approves such request, his or her application for adjustment of status under section 202 of Public Law 105–100 is deemed to be abandoned as of the moment of his or her departure. Parole may only be authorized pursuant to the authority contained in, and the standards prescribed in, section 212(d)(5) of the Act [ 8 U.S.C. § 1182(d)(5) regarding parole into the United States for humanitarian reasons]. Id. (emphases added).

In deeming Lezama's application abandoned, the IJ relied specifically on the emphasized third sentence of the regulation (“Unless the applicant files an advance parole request prior to departing from the United States ... his or her application ... is deemed to be abandoned as of the moment of his or her departure.”). The BIA's per curiam order simply agreed with the IJ on this point, with no further analysis.

This reading, however, ignores the first sentence of the regulation, and as a result fails to read the entire regulation in context. Section 245.13(k)(1) begins with a clear limitation: “[i]f [a NACARA § 202 applicant] desires to travel outside, and return to, the United States....” (Emphasis added). Read in context, the rest of the regulation is likewise limited to and applies only if an applicant fails to obtain advance parole and that applicant had “desired” to travel outside and return to the United States. The regulation requires prior approval if an applicant plans to travel outside the United States—but one cannot gain prior approval for an accident.

The regulation as a whole simply does not address the situation where a NACARA § 202 applicant never “desired to” ( i.e., never “planned to” or “intended to” or “had a purpose to”) travel outside the United States. As a result, the consequence of failing to obtain advance parole (abandonment) does not apply to an “undesired” or inadvertent departure. Effectively, abandonment occurs only for a desired departure absent advance parole.

In their decisions, neither the IJ nor the BIA mentions the conditional limiting language. The IJ relied exclusively on the third sentence of the regulation without considering the overriding limitation. But the regulation must be read as a whole. By ignoring the “desired” requirement, the IJ necessarily misinterpreted the meaning of the regulation's third sentence. Cf. Singh v. Holder, 649 F.3d 1161, 1167 (9th Cir.2011) (en banc) (reasoning that the third clause of the statute at issue was “linked by its language and context directly to” the first clause). Thus, the BIA's and IJ's interpretation of § 245.13(k)(1) was “unreasonable” and does not “sensibly conform[ ] to the purpose and wording of the regulation[.]” Lal, 255 F.3d at 1004. It is unreasonable to deem a NACARA § 202 application abandoned for failing to do something (obtain advance parole) that an applicant could not have done (because the departure was unplanned). Our reading—that abandonment for lack of advance parole does not apply if travel was not desired—is “compelled by the regulation's plain language.” Id.

Although the BIA may have provided “its own review of the [regulation],” Joseph, 600 F.3d at 1239, we give its decision no deference under Auer. Its per curiam order was decided under 8 C.F.R. § 1003.1(e) by a single-member. Such a decision is not precedential. See Garcia–Quintero, 455 F.3d at 1012–13 (“A case must be decided by a three-member panel if it presents ‘[t]he need to establish a precedent construing the meaning of laws, regulations, or procedures.’ ”) (citing 8 C.F.R. § 1003.1(e)(6)(ii)). Garcia–Quintero analyzed what deference we give to such a single-member BIA decision interpreting a statutory provision, and concluded such decisions are accorded only Skidmore deference in proportion to their power to persuade. Id. at 1014–15. For a similar reason, the BIA's decision here is entitled to no deference under Auer as an agency interpretation of a regulation. The nature of this one-member, non-precedential, BIA order—one that does not explain its reasoning—“does not reflect the agency's fair and considered judgment on the matter in question.” 519 U.S. at 462, 117 S.Ct. 905. See Joseph v. Holder, 579 F.3d 827, 833–35 (7th Cir.2009) (applying Auer, reasoning in part that an interpretation in a single-member, non-precedential, BIA decision was inconsistent with the plain language of a regulation).

The BIA appears to have also considered statutory provisions. It cited to “section 245 of the Act, at Note 9,” which could refer to NACARA itself or some other provision of 8 U.S.C. § 1255 regarding abandonment. Further, 8 U.S.C. § 1101(a)(13) regarding “admission” is also at issue. To the extent the BIA here was interpreting statutes, we also do not defer because of the cursory nature of its unpublished, non-precedential, single-member order. See Garcia–Quintero, 455 F.3d at 1012. The BIA simply stated that Lezama's departure “effected the abandonment of his application,” citing the statute and 8 C.F.R. § 1245.13(k)(1). Indeed, the BIA erroneously noted that Lezama “does not specifically contest the Immigration Judge's denial of his motion to terminate proceedings,” when Lezama had in fact argued he was not an “arriving alien.” See Edu, 624 F.3d at 1143 (reasoning that “[t]he weight accorded to an administrative judgment in a particular case will depend upon [among other factors] the thoroughness evident in its consideration”). That is, we need not defer because the BIA's order has no “power to persuade.” See, e.g., Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir.2010) (“Because the BIA's opinion is conclusory and lacks any meaningful analysis, we owe it no [ Skidmore ] deference[.]”).

We also owe the government's interpretation no deference under Chase Bank USA, 131 S.Ct. at 880–81 (indicating that a court defers to an agency's interpretation of its own regulation, even if only advanced in a legal brief, unless “plainly erroneous or inconsistent with the regulation”) (quoting Auer, 519 U.S. at 461, 117 S.Ct. 905). The government, like the BIA and IJ below, did not address the limiting language (“desired”) in § 245.13(k)(1). And its argument (like the IJ's decision)—that the third sentence in the regulation plainly deems any departure without advance parole to be an abandonment—improperly isolates the sentence untethered from its context. It is therefore “plainly erroneous” and “inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905.

2. Our Reading Is Consistent With Other Provisions

Our reading limiting abandonment to “desired” departures is bolstered by, and completely consistent with, other aspects of the statute and its regulations.

When promulgating NACARA's regulations, rule-makers specifically addressed the possibility of travel outside the United States while an application was pending. In so doing, rule-makers did not state that any unapproved absence would automatically result in abandonment. The interim rules contain the following question-and-answer commentary:

Can an Applicant Travel Outside the United States While the Application Is Pending?

Nothing in NACARA authorizes the Service to allow an applicant to re-enter the United States without proper documents. If an applicant plans to leave the United States to go to any other country, including Canada or Mexico, before a decision is made on his or her NACARA adjustment application, the applicant should contact the Service to request advance authorization for parole. If an applicant leaves the United States without such advance authorization, action on his or her NACARA adjustment application may be terminated and the application may be denied. An applicant may also experience difficulty when returning to the United States if he or she does not have such advance authorization. Furthermore, any absence from the United States without an advance parole authorization issued prior to departure counts toward the 180–day aggregate time period that the applicant is allowed to be outside the United States. 63 Fed.Reg. 27823 (May 21, 1998) (emphases added), available at 1998 WL 253314. The commentary speaks in terms of a “planned” departure and only states that an application “ may be terminated”—not “will be terminated”—if an applicant does not obtain advanced parole. More importantly, an application survives a non-authorized departure, although the non-authorized time counts towards the 180–day limit: “any absence from the United States without an advance parole authorization issued prior to departure counts toward the 180–day aggregate time period that the applicant is allowed to be outside the United States.” If an unauthorized departure was intended to result in an automatic abandonment of a NACARA application, then such a departure could not count towards the 180–day limit. There is no per se abandonment in the regulation.

Moreover, NACARA itself contemplates departures, and allows up to 180 days outside the United States prior to applying without interrupting the “continuous physical presence” in the country necessary to qualify for NACARA relief. See NACARA § 202(b)(1). Thus, although there is no basis for resurrecting Fleuti's “innocent, casual, and brief” exception, our reading is nevertheless consistent with Congress' recognition that some departures from the country should have no immigration consequences.

And indeed, § 202(b)(1)'s corresponding regulation (8 C.F.R. § 245.13(a)(2)) does not even limit the statutory 180 days of excused absences to the period before applying. Section 245.13(a)(2) states that a national of Nicaragua or Cuba is eligible to apply for adjustment of status under NACARA § 202 if the alien

has been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier [than] the date the application for adjustment is granted, excluding ... [a]ny periods of absence from the United States not exceeding 180 days in the aggregate[.] (Emphasis added.) Section 245.13(a)(2) thus recognizes that an alien should also not interrupt a “continuous physical presence” in the United States after applying, and while the application is pending. It includes within the 180–day statutory period any absences up until the application is actually adjudicated. According to its rule-makers, this regulation clarifies that “all absences between the last pre-December 2, 1995, date on which the applicant commenced physical presence and the date on which the application is approved count toward the 180–day maximum.” 65 Fed.Reg. 15850 (Mar. 24, 2000) (emphasis added). The regulation thus contemplates departures while an application is pending that do not cause abandonment of the application.

Last, our reading of § 245.13(k)(1) is also consistent with Congress' express intent to “encourage [eligible] aliens to remain in the United States,” because of a “special diplomatic concern” for Nicaraguans who arrived before December 1, 1995. Masnauskas, 432 F.3d at 1071. Our reading supports NACARA's purpose that “Nicaraguans who were in the United States prior to January 1, 1995 will be permitted to adjust to permanent residence—and get green cards—if they have maintained a continuous presence here.” 143 Cong. Rec. at S12261. Our reading helps “to ensure that nationals of [covered countries] are accorded a fair and equitable opportunity to demonstrate that, under the legal standards established by [NACARA], they should be permitted to remain, and pursue permanent resident status, in the United States.” 143 Cong. Rec. at S12266.

3. Other “Abandonment” Situations Are Distinguishable

The government, however, points to analogous situations in immigration law where pending applications for relief are abandoned upon departure from the United States, regardless of intent. See Aguilera–Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir.2003) (upholding 8 C.F.R. § 1003.4, which deems a departure from the United States of a person subject to deportation proceedings while an appeal challenging that deportation is pending to constitute an automatic withdrawal of the appeal, and rejecting a Fleuti-type exception for “brief, casual, and innocent” departures); Long v. Gonzales, 420 F.3d 516, 520–21 (5th Cir.2005) (same). But see Madrigal v. Holder, 572 F.3d 239, 244 (6th Cir.2009) (holding that “forcible removal” does not render an appeal automatically withdrawn under 8 C.F.R. § 1003.4).

But these situations are distinguishable—they did not apply a regulation like § 245.13(k)(1), which limits abandonment to travel that is “desired.” See Aguilera–Ruiz, 348 F.3d at 839 (concluding that “[u]nder 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal”). See also 8 C.F.R. § 1003.2(d) (deeming a pending motion to reopen withdrawn upon “any” departure); and 8 C.F.R. § 245.2(a)(4)(ii) (“ The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the [adjustment of status] application[.]”) (Emphasis added.)

Rule-makers could have chosen not to use the conditional limiting phrase “if [an applicant] desires to travel” in § 245.13(k)(1). The fact that they did must be given some meaning. Cf. Kucana, 130 S.Ct. at 838 (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quoting Nken v. Holder, 556 U.S. 418, 430, 129 S.Ct. 1749, 1759, 173 L.Ed.2d 550 (2009)); Rodriguez–Barajas v. Holder, 624 F.3d 678, 681 (5th Cir.2010) (vacating BIA decision that found a voluntary departure effected a withdrawal of a pending habeas petition, reasoning in part that “the presence of limiting language” in 8 C.F.R. § 1003.4 stood in contrast to broad language “any departure” in § 1003.2(d)).

4. It Is Undisputed That Lezama's Departure Was Not “Desired”

The government contends that the IJ did not decide whether an unintentional departure actually took place. It argues that, if we “somehow read into the regulation that an unintentional or mistaken departure does not constitute abandonment” then we must remand pursuant to INS v. Ventura, 537 U.S. 12, 16–17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

In proceedings before the IJ, however, the government did not dispute Lezama's factual testimony (as set forth in his translated declaration) regarding how he inadvertently drove into Mexico. His testimony establishes that he attempted to avoid crossing the border, but was directed by a police officer to continue south, only to be caught in the flow of traffic and “funneled” into Mexico and to be then excluded when he attempted to reenter. The government accepted those facts before the IJ, and instead argued that Lezama's intent was irrelevant to the abandonment of his NACARA application.

It is well established that “if a party fails to raise an objection to an issue before judgment, he or she waives the right to challenge the issue on appeal.” Slaven v. Am. Trading Transp. Co., 146 F.3d 1066, 1069 (9th Cir.1998). Because the government failed to challenge the factual circumstances of Lezama's departure, remand is not warranted. See, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1123 n. 7 (9th Cir.2004) (concluding that remand was unnecessary where government failed to submit evidence challenging factual question); Baballah v. Ashcroft, 367 F.3d 1067, 1078 n. 11 (9th Cir.2004) (declining to remand where INS failed to present evidence of changed country conditions and did not argue the point before the IJ or the BIA). It is therefore undisputed that Lezama did not “desire” to travel outside the United States. Given our analysis of the plain meaning of the regulation, we hold that Lezama did not abandon his NACARA § 202 application to adjust status. The application remains pending.

The dissent questions the “legitimacy” of this holding because it “relies on an argument and analysis that has never been advanced by the Petitioner.” Dissent at 538–39. But Lezama argues—as he did before the IJ and the BIA—that “[he], a § 202 of NACARA beneficiary, cannot be deemed to have abandoned his § 245 Application[to adjust status] pursuant to the terms of 8 C.F.R. § 1245.13(k)(1) since he did not intentionally or voluntarily depart the United States.” Pet'r's Opening Br. at 12. He contends he “did not leave the country intentionally or voluntarily; accordingly, pursuant to the reasonable connotation of the word ‘departed’ and as a ‘necessary implication’ that his acts must be intentional and voluntary, he cannot be deemed to have left the United States pursuant to 8 C.F.R. § 1245.13(k)(1)[.]” Id. at 13. Thus, Lezama surely “specifically and distinctly” raises and argues the issue we address here—the meaning and application of the language of 8 C.F.R. § 245.13(k)(1) as it relates to NACARA § 202. See Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.2003) (“we ‘review only issues which are argued specifically and distinctly in a party's opening brief.’ ”) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.1994)); Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th Cir.2004) ( “[Petitioner's] brief may not be perfectly written, but it is not difficult to discern the point she is trying to make.”).
While Lezama did not argue the importance of the first clause of the regulation, he squarely presented us with examining the whole regulation. That he did not examine the regulation as precisely as we do, or that he did not research the background of the regulation, does not raise any question as to the legitimacy of our holding. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) ( “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”); Aleman v. Glickman, 217 F.3d 1191, 1196 n. 3 (9th Cir.2000) (same). Indeed, “[o]nce the issue is raised, a court has an obligation to determine what the law is which will govern the case at hand.” Eldred v. Ashcroft, 255 F.3d 849, 853 (D.C.Cir.2001) (Sentelle, J., dissenting from the denial of rehearing en banc).

C. Inconsistency with NACARA—Lezama Cannot Be Removed

Having established that Lezama's NACARA § 202 application was not abandoned, it follows that the IJ should not have ordered him removed. NACARA § 202(c)(2) unambiguously provides that

[n]otwithstanding any provision of the Immigration and Nationality Act, the Attorney General shall not order any alien to be removed from the United States, if the alien is in exclusion, deportation, or removal proceedings under any provision of such Act and has applied for adjustment of status under subsection (a) [of this note], except where the Attorney General has rendered a final administrative determination to deny the application. And, as noted above, rule-makers recognized that under § 202(c)(2), an applicant who is in removal proceedings may not be ordered removed “unless and until the application for adjustment is denied.” 65 Fed.Reg. at 15852. “The alien does not need to file any request, motion, or other form beyond the application for adjustment itself in order to benefit from this automatic provision.” Id.

In short, the Attorney General “shall not order any alien to be removed” until he has decided the application. By ordering Lezama removed under 8 U.S.C. § 1182(a)(7)(A)(i)(I)—and given that his NACARA § 202 application is still pending—the IJ violated NACARA. The IJ's order of removal is therefore “manifestly contrary to” the statute. Mead, 533 U.S. at 227, 121 S.Ct. 2164 (citing Chevron, 467 U.S. at 842–45, 104 S.Ct. 2778).

D. Even If Lezama Was an “Inadmissible” “Arriving Alien,” He Was Nevertheless “Eligible to Seek Adjustment of Status” under NACARA

The IJ determined that when Lezama left the United States on March 25, 2004, he had executed his outstanding 1997 removal order—he “self deported”—and was therefore an inadmissible “arriving alien” subject to removal when he attempted to reenter the country. We now address what effect our conclusion that Lezama has not abandoned his NACARA § 202 application has on that determination.

Lezama's exact status presents a “chicken or egg” conundrum. Even if he did not abandon his NACARA application, he did exit the country. That is, the question still remains whether Lezama “self-deported.” Ultimately, however, we need not resolve Lezama's exact status (whether an “arriving alien” or not) because even if he was an “arriving alien” and was “inadmissible,” he remains eligible to adjust his status under NACARA.

An alien ordinarily affects his or her own removal by departing the country while an order of deportation or removal is pending. See, e.g., Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir.2006) (“It is well settled that when an alien departs the United States while under a final order of deportation, he or she executes that order pursuant to the law.”) (citations omitted). “Deportation orders are self-executing orders, not dependent upon judicial enforcement.” Stone v. INS, 514 U.S. 386, 398, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Here, however, Lezama's pending 1997 removal order had been stayed as provided by NACARA. Given the stay, his 1997 order of removal was at least in some sense not “pending.” We need not resolve, however, whether departing under that status changes the ordinary result of “self-removal.”

Admissibility is determined under 8 U.S.C. § 1182. Section 1182(a), defining “classes of aliens ineligible for visas or admission,” states that “[e]xcept as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States.” But § 1182(a) includes several grounds of inadmissibility that NACARA § 202(a)(1)(B) specifically excuses—including aliens (1) who were “present without admission or parole,” i.e., that had previously entered without inspection, as set forth in § 1182(a)(6)(A), or (2) who lacked valid travel documents when “applying for admission,” as set forth in § 1182(a)(7)(A)(i).

The opening clause (“except as otherwise provided”) is a “savings clause,” recognizing that Congress reserved the right to specifically allow admission of otherwise inadmissible aliens. NACARA is such legislation. See Renteria–Ledesma v. Holder, 615 F.3d 903, 907–08 (8th Cir.2010) (citing NACARA as a specific example of where Congress has “otherwise provided” to extend eligibility for adjustment of status to inadmissible aliens, as recognized in In re Briones, 24 I. & N. Dec. 355 (BIA 2007)); Padilla–Caldera v. Holder, 637 F.3d 1140, 1151 (10th Cir.2011) (same); accord Garfias–Rodriguez v. Holder, 649 F.3d 942, 949 (9th Cir.2011) (following Briones, and recognizing that Congress may extend eligibility for adjustment of status to inadmissible aliens if done so unambiguously).

That is, even where an alien is deemed to be an “arriving alien” and “inadmissible,” the alien may still be eligible to adjust status. See Bona v. Gonzales, 425 F.3d 663, 669 (9th Cir.2005) (invalidating a regulation that rendered an “arriving alien” placed in removal proceedings ineligible for adjustment of status, where Congress had specifically allowed the aliens to adjust status if they met other qualifications); Succar v. Ashcroft, 394 F.3d 8, 26–29 (1st Cir.2005) (same). That an alien has departed is not necessarily fatal to the consideration of a pending application to adjust status. See Marin–Rodriguez v. Holder, 612 F.3d 591, 593–94 (7th Cir.2010) (holding that an alien's departure, which constituted a “withdrawal” of a motion, does not deprive the BIA of jurisdiction to reconsider that decision—reconsideration “does not depend on an alien's presence in the country”); Coyt v. Holder, 593 F.3d 902, 906 (9th Cir.2010) (holding the same, reasoning that “in passing IIRIRA, Congress anticipated that petitioners would be able to pursue relief after departing from the United States.”). Indeed, the Supreme Court has stated that “[a]liens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal.” Nken, 129 S.Ct. at 1761.

Accordingly, even assuming Lezama was an “arriving alien” who was “inadmissible” under either 8 U.S.C. § 1182(a)(6)(A) or § 1182(a)(7)(A)(i), he remains eligible to apply for adjustment of status under NACARA § 202.

IV. CONCLUSION

This case is a prime example that “[t]he maze of immigration statutes and amendments is notoriously complicated and has been described as ‘second only to the Internal Revenue Code in complexity.’ ” Singh v. Gonzales, 499 F.3d 969, 980 (9th Cir.2007) (citation omitted). “Nonetheless, we assume that Congress is familiar with the intricacies of the overlapping laws and that it meant what it said,” id., when it promulgated NACARA.

Because Lezama's departure was not “desired,” his NACARA § 202 application was not abandoned under § 245.13(k)(1). His application remains pending. Under NACARA § 202(c)(2), while his application remains pending, he is not removable. And even if his departure rendered him an “arriving alien,” he remains eligible for adjustment of status. Accordingly, we grant the petition and remand to allow the government to rule on the pending application to adjust status under NACARA § 202.

Petition GRANTED. RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion for the following four reasons, which I discuss in greater detail below:

1. The majority opinion relies on an argument and analysis that has never been advanced by the Petitioner.

2. The majority opinion gives absolutely no deference to the agency's interpretation of its regulation.

3. The majority opinion relies on prefatory language in the regulation and ignores the substance of the regulation.

4. The majority opinion usurps the agency's authority by granting the petition without giving the agency the opportunity to apply the majority's novel interpretation of the regulation.

Our precedent has consistently reinforced the premise that we do not address issues that are not raised in a petitioner's opening brief. See Fence Creek Cattle Co. v. USFS, 602 F.3d 1125, 1134 n. 6 (9th Cir.2010); see also ONDA v. Locke, 572 F.3d 610, 614 n. 3 (9th Cir.2009). In his brief to this court, the petitioner argued in two and one-half pages that he “did not leave the country intentionally or voluntarily.” Petitioner's Opening Brief, pp. 11–13. He essentially sought to equate the circumstances of his departure to a forced departure. See id. Never once did the petitioner cite to the prefatory language of the regulation that has been seized upon by the majority to make an argument that the petitioner never made. See id. The majority's stark departure from our precedent seriously calls into question the legitimacy of the majority's holding.

The majority's departure from our precedent is compounded by the fact that the opinion gives absolutely no deference to the agency's interpretation of its regulation. The majority opinion dutifully acknowledges our obligation to defer to the agency's interpretation of its regulation, including those interpretations articulated in litigation briefs. See Majority Opinion, p. 519. The majority opinion even concedes that deference is required “unless an alternative reading is compelled.” Id. at p. 519 (citation omitted) (emphasis added). Yet, the majority opinion says one thing and does another.

As the majority opinion details, the Immigration Judge (IJ) relied upon the language of 8 C.F.R. § 245.13(k)(1), which provides in pertinent part that “[u]nless the applicant files an advance parole request prior to departing from the United States, and the Service approves such request, his or her application for adjustment of status ... is deemed to be abandoned as of the moment of his or her departure....” The majority opinion also recognizes that the Board of Immigration Appeals adopted the IJ's reliance on the regulation. See Majority Opinion, p. 539. This same analysis is reflected in the brief filed on behalf of the agency. See Brief for Respondent, pp. 24–30.

The IJ, BIA and Department of Justice all relied on the seismic shift reflected in Congress's enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Prior to the enactment of IIRIRA, continued eligibility for adjustment of status often depended on whether the alien intentionally departed the United States. See 8 U.S.C. § 1101(a)(13) (repealed 1996) (excluding from the definition of “entry” a return to the United States if the prior departure “was not intended” or “voluntary”). This statutory provision spawned a litany of cases addressing whether a particular departure was “intended” or “voluntary.” See, e.g., Rosenberg v. Fleuti, 374 U.S. 449, 452–53, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963) (describing the judicial evolution of the definition of “entry”). However, following the enactment of IIRIRA and the repeal of § 1101(a)(13), intent of the departing alien became irrelevant. See, e.g., Camins v. Gonzales, 500 F.3d 872, 878–79 (9th Cir.2007) (recognizing that the changes in IIRIRA “were consistent with a complete makeover of § [1101](13) specifically intended to supplant the subjective intent inquiry that was a feature of the old law....”) ( quoting Tineo v. Ashcroft, 350 F.3d 382, 392–93 (3d Cir.2003)).

In Camins, we also deferred to an en banc decision of the BIA that specifically interpreted IIRIRA as abrogating the intent inquiry that was central to the pre-IIRIRA determination of entry. See id. at 879–80 (deferring to the BIA's interpretation of IIRIRA as explicated in Matter of Collado–Munoz, 21 I. & N. Dec. 1061, 1064–65 (BIA 1998) (en banc)).

The majority completely ignores the prior deference we have given to the BIA's holding that the intent of the departing alien is not relevant post-IIRIRA. Instead, the majority opinion seizes upon prefatory language in IIRIRA that has never been interpreted by the BIA in conjunction with a petitioner's admissibility. See Majority Opinion, pp. 531–32 (emphasizing the first sentence of § 245.13(k)(1) and focusing on whether the petitioner “desired” to depart the United States). The majority's focus returns to the “intent” analysis that was eliminated by IIRIRA, although purporting to base its analysis on the “context” of the statutory scheme. See Majority Opinion, p. 531. However, the statutory context points in the other direction. See Camins, 500 F.3d at 878–79 (explaining that the purpose of IIRIRA was to eliminate any examination of the subjective intent of the departing alien).

The first sentence of § 245.13(k)(1) provides: “If an applicant for benefits under section 202 of Pub.L. 105–100 desires to travel outside, and return to, the United States while the application for adjustment of status is pending, he or she must file a request for advance parole authorization ...” Grammatically, it is apparent that the “desires to travel” clause is merely an introduction to the substantive portion of the regulation—the requirement of obtaining advance parole prior to departing the country. Indeed, although the parole requirement is explained in greater detail in the balance of the subsection, no further mention is made of the “desires to travel” language, reinforcing its introductory function. In addition, we have cautioned against reliance on introductory language when engaging in statutory interpretation. See United States v. Ertsgaard, 222 F.3d 615, 617–18 (9th Cir.2000). Our sister circuits agree. See United States v. Studifin, 240 F.3d 415, 421 n. 5 (4th Cir.2001); see also Davric Maine Corp. v. USPS, 238 F.3d 58, 62 (1st Cir.2001) (eschewing reliance on introductory language when the balance of the provision “makes clear that this reading is not tenable....”). The majority opinion's inappropriate reliance on introductory language to the exclusion of the substantive provisions, lack of deference to agency interpretation and conflict with IIRIRA's deliberate removal of the intent requirements prevent my joinder.

Finally, even if the majority opinion's holding were correct, it is nevertheless inappropriate to apply this novel interpretation of the regulation without first giving the BIA the opportunity to consider this case in view of the new interpretation of the regulation. See Pannu v. Holder, 639 F.3d 1225, 1228 (9th Cir.2011) (remanding for the BIA to apply intervening legal interpretations).

Because the majority departs from our precedent, misinterprets the governing regulation, gives no deference to the agency, and refuses to remand, I respectfully dissent. -------- Notes: