Soriano-Vino, et al v. Holder

Filing

FILED OPINION (ALFRED T. GOODWIN, JOHNNIE B. RAWLINSON and JACK ZOUHARY) DENIED. Judge: JBR Authoring, Judge: JZ Concurring. FILED AND ENTERED JUDGMENT. [7850806]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



LOURDES SORIANO-VINO,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 06-73345
Agency No.
A092-732-826
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 3, 2010—Pasadena, California
Filed August 10, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Rawlinson;
Concurrence by Judge Zouhary

*The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.

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COUNSEL
Nancy E. Miller, Esq., Pasadena, California, for defendantappellant Lourdes Soriano-Vino.
Christina B. Parascandola, Assistant United States Attorney,
Washington, DC, for plaintiff-appellee Eric H. Holder Jr.,
Attorney General.

OPINION
RAWLINSON, Circuit Judge :
This case requires us to interpret and apply the confidentiality provision of the statute governing the Special Agricultural Workers program (SAW). See 8 U.S.C. § 1160. Because
we conclude that the confidentiality provisions were not contravened during the inspection at issue in this case, we deny
the petition for review.
I.

BACKGROUND

This case originated at an inspection checkpoint in the Los
Angeles International Airport (LAX). Appellant Lourdes

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Vino-Soriano (Soriano) was returning from the Philippines
when she was asked by an Immigration and Naturalization
Service (INS) inspector where she worked and for whom she
worked. After Soriano answered the questions, the inspector
asked her to remain in the waiting area. After two to three
hours, two other inspectors entered and interrogated Soriano
for five to six hours.
Soriano stated that she was told by the inspectors that her
green card was fake and that she could be deported immediately. She was also told that the inspectors were checking her
record. Soriano remembered being informed that she was not
entitled to an attorney and recalled being denied her request
to make a telephone call or use the bathroom. Soriano did not
feel she could leave the room.
In the course of the interview, Soriano signed a sworn
statement reflecting her responses to the questions, including
her admission that she committed fraud to obtain her status
under the SAW program. One question of particular interest
to the inspectors was whether Soriano had worked on the farm
listed as her place of employment when she obtained admission under the SAW program. Soriano verbally denied working on the farm and repeated the denial in her sworn
statement. According to Soriano, she had no choice but to
sign the sworn statement, because the INS officers threatened
to send her back to the Philippines. Soriano later contended
that not all of the information in the sworn statement was true.
Specifically, Soriano asserted that her statement about not
working on the farm was false.
When questioned about the inconsistencies concerning the
dates of her employment on the farm, Soriano replied that she
was tired from the long flight, she was hungry, and she felt
imprisoned. Soriano also explained that she did not review the
statement; the officer just told her to sign it.
During cross-examination, Soriano remarked that she
believed the inspectors were checking her immigration file

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because they questioned the validity of her green card and
looked at the back of her green card. However, no concrete
evidence was offered to confirm Soriano’s belief.
Inspector Dibene (Dibene), one of the inspectors who questioned Soriano, testified she would accommodate a person
who needed a break for water or to use the restroom. Dibene
denied using threats or insults during her investigations.
Dibene identified the sworn statement taken from Soriano.
Dibene described typing Soriano’s answers verbatim. In the
process, Dibene noted that several answers given by Soriano
did not sound credible. Specifically, the S-26 code on Soriano’s green card identified her as a person who obtained
admission through the agriculture amnesty program. That
information seemed “peculiar” in view of Soriano’s other
statements regarding her prior work experience. In Dibene’s
experience, an agricultural worker could routinely name the
supervisor and the owner of the farm where she worked. In
addition, the work schedule Soriano described was more suitable to employment in a business, rather than on a farm.
Dibene testified that it was her customary procedure to
have an interviewee review the sworn statement for errors. If
there were any errors, she would have the subject correct the
errors on the statement in pen and initial the corrections.
Dibene testified she would have the subject review page by
page, rather than giving the completed document to the subject for signature.
During cross-examination, Dibene testified that she was
familiar with A files. Dibene did not believe that the SAW
program applications were co-mingled with other documents
in the A file because the SAW application information was
protected from disclosure. Dibene also explained that A file
documents were maintained separately, and that an inspector
would not possess an A file. Finally, Dibene explicitly denied
assessing Soriano’s A file.

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The IJ did not credit Soriano’s testimony that she was
coerced into signing the statement or that she gave any false
statements during the interview. The IJ also concluded that
the information provided during the interview came from
Soriano, and not from her SAW application. In turn, Soriano’s
responses to the questions from the investigators established
that she was not a bona fide agricultural worker and did not
qualify for admission under the SAW program.
The IJ ultimately ruled that due to fraud in obtaining her
admission, Soriano was not a Legal Permanent Resident
(LPR) and, therefore, was not eligible for cancellation of
removal. Accordingly, the IJ pretermitted Soriano’s application for cancellation of removal and ordered her removed.
Soriano appealed the IJ’s decision to the Board of Immigration Appeals (BIA) and the BIA affirmed the IJ’s decision.
Soriano subsequently filed a petition for review to this court,
but it was dismissed as untimely. However, the BIA reissued
its decision after Soriano filed a motion to re-open due to
ineffective assistance of counsel, allowing Soriano to pursue
this petition for review.
II.

STANDARD OF REVIEW

“When the BIA conducts its own review of the evidence
and law rather than adopting the IJ’s decision, our review is
limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d
1034, 1039 (9th Cir. 2010) (citation and internal quotations
omitted). We review questions of law de novo. See Rivera v.
Mukasey, 508 F.3d 1271, 1274-75 (9th Cir. 2007).
Whether the confidentiality provisions of § 1160 were violated constitutes a question of statutory interpretation, which
is reviewed de novo. See Infuturia Global Ltd. v. Sequus
Pharmaceuticals, Inc., 631 F.3d 1133, 1137 (9th Cir. 2011).
Where the BIA, in an unpublished decision, interprets an
ambiguous immigration statute, we give Skidmore deference

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to the BIA’s interpretation. See Vasquez De Alcantar v.
Holder, No. 08-71427, ___ F.3d ___, 2011 WL 2163965 at *2
(9th Cir. June 3, 2011); see also Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944) (describing deference to non-controlling
agency rulings as dependent on the power of those rulings to
persuade).
III.

DISCUSSION

Soriano contends that the INS inspectors violated the confidentiality provisions of the SAW program. See 8 U.S.C.
§ 1160(b)(6) (2001). This program provided amnesty for a
large number of the undocumented alien population of agricultural workers by authorizing applications for legalization
in accordance with the criteria set forth in § 1160. See Velez
v. Coler, 978 F.2d 647, 648 & n.1 (11th Cir. 1992). One of
the principal requirements was that the applicant demonstrate
performance of agricultural services as an employee. See Wint
v. Yeutter, 902 F.2d 76, 78 (D.C. Cir. 1990) (citing 8 U.S.C.
§ 1160 (a)(1)). This requirement underscores the significance
of Soriano’s denial of working on a farm. By denying having
engaged in agricultural employment, Soriano called into question her eligibility for admission under the SAW program.
[1] A prominent feature of the SAW program is the confidentiality provision that prohibits use of information disclosed
by a SAW applicant in the course of the application process.
See 8 U.S.C. § 1160(b)(6)(A)(i). Upon realizing the significance of her statement that she had never worked on a farm,
Soriano segued to her contention that the information elicited
from her by the INS inspectors was confidential under the
provisions of § 1160.
The BIA upheld the IJ’s determination that the confidentiality provisions of § 1160 were not violated. The BIA ruled
that “[a]ny notation on the respondent’s permanent residency
card [ ] which indicated that the respondent obtained her resi-

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dency via the SAW program is not part of her confidential
temporary residence application.”
This issue appears to be one of first impression for us.
However, the Tenth and Eleventh Circuits, as well as the
United States District Court for the Southern District of California have previously applied the confidentiality provisions
of § 1160. During a criminal proceeding involving the illegal
acquisition of a firearm, a SAW applicant in the Tenth Circuit
appealed the decision of the district court allowing his application to be used to establish that he was an illegal alien. See
United States v. Hernandez, 913 F.2d 1506, 1508 (10th Cir.
1990). The Tenth Circuit determined that the application was
admissible as evidence at trial because the reach of the confidentiality provision did not extend so far as to protect against
disclosure in a criminal proceeding. The Tenth Circuit reasoned that a more “narrow reading” of the confidentiality
requirement would allow disclosure of application information “in the course of verifying it” and “in the course of prosecuting an applicant for providing false information . . .” Id. at
1511 (citations omitted).
Similarly, in a case from the Eleventh Circuit, petitioners
attempted to limit access to SAW files during a court proceeding. See In re Nelson, 873 F.2d 1396, 1397 (11th Cir. 1989).
The Eleventh Circuit opined that it was not Congress’s intent
“to prohibit disclosure of SAW application files in judicial
proceedings.” Id. (citations omitted). The Eleventh Circuit
explained that if Congress intended to place such a limitation
on the files, it would have expressly done so. See id.
In Lopez v. Ezell, 716 F.Supp. 443, 444 (S.D. Cal. 1989),
the plaintiffs filed a motion for a preliminary injunction to
enjoin border patrol agents and non-legalizing INS officers
from, inter alia, questioning applicants concerning fraud with
respect to their applications. The district court turned to the
plain language of the statute and interpreted it “in a logical
fashion” to limit the confidentiality provision to the “applica-

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tion and any information taken from the application. . .” Id.
at 445. The district court determined that “[o]n its face, the
language of section 1160(b)(6) does not extend to the information not obtained directly from the application itself . . .”
Id. (emphasis added). Recognizing that the language of the
statute could be deemed ambiguous, the district court also
examined legislative history to ascertain the intent of the
drafters. See id. The district court discerned from the legislative history that Congress’s primary intent was to protect the
application and the information contained on the application
from unauthorized disclosure to other government entities.
See id. (citing P.L. 99-603, reprinted in 1986 U.S. Code
Cong. & Admin. News, 5649, 5677). However, the district
court observed that Congress was also concerned about fraud
in the application process. See id. (referencing
§ 1160(b)(6)(A)’s exemption for “the purpose of enforcing
the penalty for fraud”). Having considered the plain language
of the statute and the legislative history, the district court held
that the confidentiality provision was not to be construed so
broadly “as to completely immunize the underlying facts contained in the application from any independent inquiry.” Id. at
447.
Although we agree with the principle espoused in Hernandez and In re Nelson that the confidentiality provision in
the SAW legislation is not limitless, those cases do not provide direct guidance on the issue we decide. Those cases both
involved court proceedings. See Hernandez, 913 F.2d at 1508;
see also In Re Nelson, 873 F.2d at 1397. Accordingly, it could
be argued that the compelling nature of court proceedings is
sufficiently distinct that an exception may be made for those
proceedings that would not apply in an inspection interview.
See Carmichael v. Delaney, 170 F.2d 239, 244-45 (9th Cir.
1948) (noting the importance of judicial proceedings) .
We are more persuaded by the analysis of the district court
in Lopez because Lopez involved facts that are more analogous to the facts of this case, i.e., seeking to prohibit inspec-

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tors from inquiring about fraud in the underlying SAW
application. See Lopez, 716 F.Supp. at 444. As noted by the
district court in Lopez, 8 U.S.C. § 1160(b)(6) provided in pertinent part:
Nothing in this paragraph shall be construed to limit
the use, or release, for immigration enforcement purposes or law enforcement purposes of information
contained in files or records of the Service pertaining
to an application filed under this section, other than
information furnished by an applicant pursuant to the
application, or any other information derived from
the application, that is not available from any other
source.
[2] We agree that Congress was as concerned with fraud in
the application process as it was with shielding applicants
from unauthorized disclosure of the SAW application contents. See Lopez, 716 F. Supp. at 446 (referencing the statutory provision exempting from the confidentiality provision
information used to enforce the fraud penalty). Adoption of
Soriano’s approach would prevent any investigation of fraud
that referenced any information contained in the SAW application, even if the information was not obtained from the
application. We are not inclined to adopt an interpretation that
patently thwarts Congress’s expressed intent. See Padash v.
I.N.S., 358 F.3d 1161, 1168 (9th Cir. 2004) (noting that federal statutes should be interpreted in conformity with the
intent of Congress).
[3] We also agree that the plain language of the statute
counsels against a broad interpretation of the confidentiality
provision. By its plain terms, the confidentiality provision
applies expressly and exclusively to the application itself. See
8 U.S.C. § 1160(b)(6)(A). Applying the confidentiality provision to information that was not obtained from the application
would violate a cardinal principle of statutory interpretation—
that a statute be analyzed and applied in accordance with its

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plain language. See Infuturia Global, 631 F.3d at 1137. In
sum, we hold that an examination of the plain language of the
statue and the statutory intent as expressed in the statute leads
us to conclude that there is no violation of the SAW confidentiality provisions when the challenged information is obtained
as the result of questioning at an inspection checkpoint rather
than from the application itself.
The BIA’s ruling is consistent with our conclusion. In its
decision, the Board specifically found that the information the
agents obtained from the notation on Soriano-Vino’s permanent residency card was not part of her application. We give
Skidmore deference to the agency’s ruling because the analysis employed was fact-based, fairly thorough, and rooted in
reliance on published BIA precedent. See Skidmore, 323 U.S.
at 140 (discussing factors).
[4] Finally, we note that the outcome of this case is not
dictated by the Board’s decision in In Re Masri, I. & N. Dec.
1145 (BIA 1999). In Masri, it was undisputed that the INS
procured evidence directly from the applicant’s SAW application. See id. at 1146. Because the evidence used by the agency
fell within the express prohibition of the statute’s confidentiality provision, the Board held that the “clear and unequivocal” language of the statute prohibited use of information
from the SAW application. Id. at 1150. In deciding SorianoVino’s appeal, the BIA explicitly distinguished the circumstances that existed in Masri. Unlike the situation in Masri, it
is undisputed that the inspectors who questioned Soriano did
not have access to Soriano’s SAW application. Rather, information was garnered from the statements provided by Soriano. Because the agents did not access Soriano’s SAW
application, there was no violation of the SAW confidentiality
provision, and the BIA’s decision so holding was correct.
PETITION DENIED.

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ZOUHARY, District Judge:
I concur in the result. The confidentiality provision was not
violated here because immigration officers obtained the challenged information from Soriano, not her SAW application.