Albaro Elias Tista v. Eric H. Holder Jr.

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, CONSUELO M. CALLAHAN and SARAH S. VANCE) DENIED. Judge: FFF Authoring, FILED AND ENTERED JUDGMENT. [8693216]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBARO ELIAS TISTA ,

No. 08-75167
Petitioner,
Agency No.
A075-658-786

v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2013*
San Francisco, California
Filed July 8, 2013
Before: Ferdinand F. Fernandez and Consuelo M.
Callahan, Circuit Judges, and Sarah S. Vance,** District
Judge.
Opinion by Judge Fernandez

*

The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
**

The Honorable Sarah S. Vance, Chief United States District Judge for
the Eastern District of Louisiana, sitting by designation.

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TISTA V . HOLDER
SUMMARY***

Immigration
The panel denied Albaro Elias Tista’s petition for review
of the Board of Immigration Appeals’ denial of his
application for special rule cancellation of removal under the
Nicaraguan Adjustment and Central American Relief Act as
a derivative beneficiary of his father.
The panel held that Elias, who applied for NACARA
before he was twenty-one years old but was over twenty-one
when his father was granted relief, failed to demonstrate that
the Child Status Protection Act (CSPA), under which his age
would be calculated from the date his father filed for relief,
applies to NACARA. The panel held that the CSPA by its
plain language makes no reference to NACARA, and that
there is no basis to find that NACARA applicants come
within CSPA’s provisions. The panel also held that Elias did
not demonstrate that the failure of Congress to apply the
CSPA to NACARA violates the equal protection component
of due process.

***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Ian E. Silverberg, Reno, Nevada, for Petitioner.
Tony West, Assistant Attorney General, Richard M. Evans,
Assistant Director, Benjamin J. Zeitlin, Trial Attorney,
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent.

OPINION
FERNANDEZ, Circuit Judge:
Albaro Elias Tista, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’
(BIA) denial of his application for special rule cancellation of
removal. In 1999, Elias applied under the Nicaraguan
Adjustment and Central American Relief Act (NACARA)1
for special rule cancellation of removal2 on the basis that he
was so entitled because he was a child whose father had been
granted special rule cancellation of removal under NACARA.
However, the BIA determined that Elias did not meet
NACARA’s definition of a child at the time that his father
was granted relief, and that the Child Status Protection Act
(CSPA)3 did not apply to him. Elias asserts that the BIA

1
Nicaraguan Adjustment and Central American Relief Act, Pub. L. No.
105–100, 111 Stat. 2160 (1997).

2

NACARA, § 203(b) at “(f)(1).”
3

Child Status Protection Act, Pub. L. No. 107–208, 116 Stat. 927
(2002).

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erred and that its decision violated his due process right to
equal protection of the law.4 We deny the petition.
BACKGROUND
Elias, who was born in January 1979, applied for special
rule cancellation of removal in September 1999, about four
months before his twenty-first birthday. He stated:
I am the . . . child (unmarried and under 21
years of age), unmarried son . . . of someone
who has already applied for, or is presently
filing with me for suspension of deportation
or special rule cancellation of removal under
NACARA. If I am an unmarried son . . . my
parent was granted suspension of deportation
or special rule cancellation of removal when
I was less than 21 years of age.
Elias entered the United States in January 1997 and his
NACARA-eligible parent was his father, Tomas Elias Perez.
Elias’ father was granted legal permanent residency under
NACARA in March 2006. Shortly before that, Elias, who
was then twenty-seven years of age, was served with a notice
to appear for a removal hearing. He conceded removability,
but argued that he was eligible for special rule cancellation of
removal under NACARA as a beneficiary of his father.5

4

5

U.S. Const. amend V.

Elias also applied for other forms of relief, but those are not at issue in
this petition for review.

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The IJ denied relief because Elias was over twenty-one
years of age by the time his father was granted special rule
cancellation. Elias did not, and does not, contest the factual
finding. He did, and does, assert that the CSPA definition of
a child should apply to him and that his age should be
calculated from the date that his father applied for relief. The
IJ declared that the CSPA did not apply to Elias and that for
him the issue “is not the timing of the filing of the application
or petition but rather the age of the recipient beneficiary at the
time when the NACARA application is approved.” The IJ
then declined to consider any “constitutional issues,” citing
“Board precedent in Matter of C-, 20 I. & N. Dec. 529 (BIA
1992).” Thus, the IJ denied Elias “special NACARA
cancellation relief” and ordered him removed.
Elias appealed that determination to the BIA. The BIA
adopted and affirmed the IJ’s decision; it cited Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). The BIA
added that it would not consider Elias’ equal protection and
due process arguments because “we lack jurisdiction to rule
on the constitutionality or validity of the Act and the
regulations that we administer.” It, therefore, dismissed
Elias’ appeal. This petition for review followed.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
We review legal questions de novo. Kankamalage v. INS,
335 F.3d 858, 861 (9th Cir. 2003). However, the BIA’s
interpretation of a governing statute is entitled to an
appropriate level of deference. See United States v. Mead
Corp., 533 U.S. 218, 227–28, 121 S. Ct. 2164, 2171–72,
150 L. Ed. 2d 292 (2001); Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842–44, 104 S. Ct.

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2778, 2781–82, 81 L. Ed. 2d 694 (1984); Skidmore v. Swift &
Co., 323 U.S. 134, 140, 65 S. Ct. 161, 164, 89 L. Ed. 124
(1944); Edu v. Holder, 624 F.3d 1137, 1142–43 (9th Cir.
2010).
We review factual findings for substantial evidence.
Abebe v. Gonzales, 432 F.3d 1037, 1039–40 (9th Cir. 2005)
(en banc).
When the BIA adopts and affirms an IJ’s decision and
cites its Burbano decision, we will “‘review the IJ’s decision
as if it were that of the BIA.’” See Samayoa-Martinez v.
Holder, 558 F.3d 897, 899 (9th Cir. 2009).
DISCUSSION
Elias argues that the CSPA does apply to those who ask
for relief under NACARA, and, if it does not, his due process
right to equal protection of the law has been violated. As we
will show, neither leg of that argument supports his position.
A. Application of the CSPA
The CSPA was designed to protect individuals who seek
relief as derivative beneficiaries when their parents obtain
relief. A common difficulty arose in cases where the child
was under the age of twenty-one years when the child’s
parents applied for relief, but was over that age when the
parents were granted that relief. That is, it was designed to
prevent a determination that the child “had ‘aged out’ of
eligibility.” De Osorio v. Mayorkas, 695 F.3d 1003, 1006
(9th Cir. 2012) (en banc), cert. granted, 81 U.S.L.W. 3430
(U.S. June 24, 2013) (No. 12-930).

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In determining whether that protection applies to
NACARA applicants, we need only read the language of the
CSPA itself. “It is well established that ‘when the statute’s
language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—is to
enforce it according to its terms.’” Lamie v. U.S. Trustee,
540 U.S. 526, 534, 124 S. Ct. 1023, 1030, 157 L. Ed. 2d 1024
(2004). The same applies to administrative agencies’
interpretation of statutes that they administer. See Chevron,
467 U.S. at 842–43, 104 S. Ct. at 2781. Here the CSPA by its
plain language applies to a limited number of provisions in
the Immigration and Nationality Act. It covers certain types
of visas (family-based, employment-based, and diversitybased), and applications for refugee status and asylum.
CSPA §§ 2–6 (codified at 8 U.S.C. §§ 1151(f), 1153(h),
1158(b)(3), 1157(c)(2)(B), 1154(k)).
The CSPA makes no reference to the wholly separate
NACARA provisions, even though NACARA was enacted
before the CSPA was enacted. We agree with the BIA and
the IJ that there is no basis for declaring that NACARA
applicants, nevertheless, come within the provisions of the
CSPA. Certainly, Elias offers little or no support for his
contrary assertion, but treats it as more of a feint, while his
equal protection claim is his allonge.
B. Equal Protection
Elias argues that if the CSPA does not apply to NACARA
applicants, they are denied their right to the equal protection
component of due process. The difficulty Elias faces in
propounding that idea was explicated by the Supreme Court
in a case where resident aliens questioned Congress’ linedrawing regarding their access to certain welfare benefits.

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Matthews v. Diaz, 426 U.S. 67, 69–70, 96 S. Ct. 1883, 1886,
48 L. Ed. 2d 478 (1976). The Court said:
Any rule of constitutional law that would
inhibit the flexibility of the political branches
of government to respond to changing world
conditions should be adopted only with the
greatest caution. The reasons that preclude
judicial review of political questions also
dictate a narrow standard of review of
decisions made by the Congress or the
President in the area of immigration and
naturalization.
Id. at 81–82, 96 S. Ct. at 1892 (footnote references omitted).
The Court added:
In short, it is unquestionably reasonable for
Congress to make an alien’s eligibility depend
on both the character and the duration of his
residence. Since neither requirement is
wholly irrational, this case essentially
involves nothing more than a claim that it
would have been more reasonable for
Congress to select somewhat different
requirements of the same kind.
Id. at 82–83, 96 S. Ct. at 1893.
We have said much the same in somewhat different
language. We have pointed out that:

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It is equally well established that the Due
Process Clause incorporates the guarantees of
equal protection.
However, [f]ederal authority in the areas
of immigration and naturalization is plenary.
Accordingly, federal classifications based on
alienage are subject to relaxed scrutiny.
Federal classifications distinguishing among
groups of aliens thus are valid unless wholly
irrational.
Garberding v. INS, 30 F.3d 1187, 1190 (9th Cir. 1994)
(citations and internal quotation marks omitted). And, more
specifically:
Distinctions between different classes of
aliens in the immigration context are subject
to rational basis review and must be upheld if
they are rationally related to a legitimate
government purpose.
A legislative
classification must be wholly irrational to
violate equal protection. Challengers have the
burden to negate every conceivable basis
which might support a legislative
classification whether or not the basis has a
foundation in the record.
Aguilera-Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir.
2008) (citations and internal quotation marks omitted). And,
when addressing some of the distinctions made in NACARA
itself, we have also underscored the deference we owe
Congress. As we have noted: “[L]ine-drawing decisions
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immigration and naturalization must be upheld if they are
rationally related to a legitimate government purpose.”
Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 603 (9th Cir.
2002) (internal quotation marks omitted). Against that
backdrop, we will consider Elias’ argument that his equal
protection rights were violated because as the child of a
NACARA cancellation recipient, he is treated differently
from a child of an asylum recipient.6 We reject that
argument.
In the first place, Elias’ father, a NACARA cancellation
recipient, was not in essentially the same group as those who
received a grant of asylum, and there is no reason to treat
Elias as if his father were in the same group. In fact, the
groups are quite different. Regardless of conditions in the
foreign country, a person seeking asylum must shoulder the
not inconsiderable burden of proving that he, himself, has
suffered or has a well-founded fear that he will suffer
persecution in that country for certain specifically limited
reasons. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)
(2001); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1,
112 S. Ct. 812, 815 & n.1, 117 L. Ed. 2d 38 (1992); Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003); Fisher v. INS,
79 F.3d 955, 960–61 (9th Cir. 1996) (en banc); Ghaly v. INS,
58 F.3d 1425, 1428–29 (9th Cir. 1995). A person seeking
NACARA cancellation does not face any of those hurdles.
Rather, as relevant here, an applicant for NACARA relief
need only show that he came from one or more of at least

6

Elias does not argue that Congress lacked a rational basis for
classifying children of NACARA applicants differently from children
seeking family-based, employment-based or diversity-based visas as
beneficiaries of their parents when it enacted the CSPA.

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seventeen countries,7 and need not demonstrate that he was,
or may be, persecuted in that country. That is not to say that
the countries in question would be pleasant places to live,8 but
those who can demonstrate actual persecution are, no doubt,
part of a much more limited group than those who need only
demonstrate nationality. Incidentally, those who chose to
seek NACARA relief could have instead chosen to pursue
asylum relief and attempted to demonstrate their right to that
form of protection.
Therefore, children of those who have obtained
NACARA relief are in a category that is significantly distinct
from children of those who have obtained asylum relief. That
leaves Elias with the obligation of showing that Congress had
no possible rational basis for treating those groups differently.
That he has not done.
As the Fourth Circuit Court of Appeals declared regarding
a relief program much like the one at hand,9 where an equal
protection claim was made because children of Haitian
beneficiaries were treated differently from children of those
who obtained relief under the CSPA:
[The petitioner] has not demonstrated that
Congress had no possible rational basis to

7

See NACARA § 203(1) at “(5)(C)(i)(I), (II), (V).”

8

For example, we have noted that NACARA was intended to benefit
those who “had either ‘taken unusual risks in escaping from oppressive
governments’ or ‘whose countries had been profoundly ravaged by war.’”
Jimenez-Angeles, 291 F.3d at 603.
9

See Haitian Refugee Immigration Fairness Act, Pub. L. No. 105-277,
112 Stat. 2681 (1998) (HRIFA).

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deny CSPA protection to HRIFA applicants.
Congress grants or denies many immigration
benefits based on nationality, presumably to
advance security, foreign relations,
humanitarian, or diplomatic goals. We cannot
say that Congress’s decision to deny CSPA
protection to HRIFA applicants lacks any
rational basis.

Midi v. Holder, 566 F.3d 132, 137 (4th Cir. 2009). Elias is in
the same position.
Elias satisfies himself with the naked reflection that there
is no basis for the distinction, but some plausible bases come
readily to mind. Congress could well have seen much more
danger and need for the children of those who had actually
suffered persecution. Or, due to the lessened burdens of
persuasion in NACARA, it might not have thought that
NACARA delay was as serious and unfair as asylum delay;
that is, it might have felt that the waiting time for relief would
be shortened due to the applicant’s ability to bypass the more
complicated asylum process. Or, Congress might even have
decided to limit the influx of aliens; relief could be available
to very substantial numbers of aliens from the designated
countries because it would be much easier for individuals to
obtain relief than it would have been if they were required to
demonstrate their entitlement under the more onerous asylum
provisions. Because Congress could have believed any or all
of these premises (and, no doubt, others) without being
“wholly irrational,” it is not for us to declare that “it would
have been more reasonable for Congress to select somewhat
different requirements.” Matthews, 426 U.S. at 83, 96 S. Ct.
at 1893.

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CONCLUSION
Elias has neither demonstrated that the CSPA applies to
NACARA, nor demonstrated that the failure of Congress to
apply the CSPA to NACARA violates the equal protection
component of due process. Thus, Elias is relegated to and
bound by the multitude of other immigration provisions that
Congress has adopted, faute de mieux.
Petition DENIED.