Mario SANCHEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 560 F.3d 1028

Opinion by Judge SILVERMAN; Concurrence by Judge PAEZ; Dissent by Judge PREGERSON SILVERMAN, Circuit Judge: Mario Sanchez petitions for review of the Board of Immigration Appeals’s affir-mance of the Immigration Judge’s decision denying him cancellation of removal because he could not meet the “good moral character” requirement of 8 U.S.C. § 1229b(b)(l). Persons who have knowingly encouraged or assisted other aliens to enter the United States illegally may not be found to have good moral character. 8 U.S.C. §§ 1101(f)(3), 1182(a)(6)(E).

In the inadmissibility context, such persons may obtain a waiver of inadmissibility if the only person smuggled into the U.S. was their own spouse, parent, son, or daughter. 8 U.S.C. § 1182(d)(ll). We took this case en banc to resolve whether the alien smuggling inadmissibility waiver in § 1182(d)(ll) applies to an application for cancellation of removal. May an applicant for cancellation of removal demonstrate good moral character notwithstanding his participation in family-only smuggling? We hold today that he cannot, overruling Moran v. Ashcroft, 395 F.3d 1089 (9th Cir.2005). I.

Facts Sanchez first entered the United States in April 1988 without inspection, and resided here without lawful status. He has left the United States only once since then, returning to Mexico for three weeks in August 1993 to get married. After the wedding, he paid a “coyote” $1,000 to smuggle himself and his new wife into the United States. In May 2000, the Immigration and Naturalization Service charged Sanchez with removability as an alien found present in the United States without being admitted or paroled. Sanchez conceded removability and requested cancellation of removal pursuant to 8 U.S.C. § 1229b(

b) on the ground that removal would result in exceptional and extremely unusual hardship to his U.S. citizen children and lawful permanent resident father. After a hearing, the IJ found that Sanchez had met the statutory qualifications for cancellation of removal in all but one respect: he was barred from establishing good moral character because he helped his wife enter the country illegally in 1993.

The IJ reasoned that Sanchez’s conduct made him “a member of one or more of the classes of persons” — in this case, a smuggler under 8 U.S.C. § 1182(a)(6)(E) — who by statute cannot be found to have good moral character. See 8 U.S.C. § 1101(f)(3). In an unpublished decision, the BIA affirmed the IJ’s decision. The Board reasoned that Sanchez’s “smuggling activities d[id] not fall within the exceptions to

section 212(a)(6)(E)(

i) of the Act listed in clauses (ii) and (iii) of that provision.” See 8 U.S.C. § 1182(a)(6)(E)(n), (iii). Sanchez petitioned for review. When this case was before the three-judge panel in Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir.2008), the panel granted the petition, holding that the reasoning of our 2005 decision in Moran v. Ashcroft controlled.

In Moran, the court “translated]” the “family unity” waiver of inadmissibility in § 1182(d)(ll), which is referenced in § 1182(a)(6)(E)(iii) “into the language of cancellation of removal” to hold that an alien applying for cancellation of removal “would be eligible for the waiver ... if the only individuals he had helped smuggle into the country were his son and his spouse.” 395 F.3d at 1093-94. The panel in this case noted the tension between Moran and Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir.2000).

Khourassany held that an alien who had paid a smuggler to bring his wife and child into the United States illegally from Mexico could not meet the “good moral character” requirement for voluntary departure, and that “[n]o exceptions or other waivers to the alien smuggler provision applied].” Id. The three-judge panel in the case at bar held that under the reasoning, albeit not the actual holding, of Moran, Sanchez appeared to be eligible for the family unity waiver. Sanchez, 521 F.3d at 1110.

Judge Wallace, writing separately, suggested that the conflict between Moran and Khourassany should be resolved by the en banc court, and that Moran “disregarded] the plain meaning of the relevant statutes.” Id. at 1111, 1114 (Wallace, J., writing separately). It is in this context that we reheard en banc the petition for review. II. Analysis In reviewing the agency’s construction of a statute under Chevron, the first question we confront is “whether Congress has directly spoken to the precise question at issue.” Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Because we find the meaning of the statutory text to be clear, “that is the end of the matter,” and we need not take advantage of agency expertise in construing the statute. Id. at 842-43, 104 S.Ct. 2778. “In attempting to determine the meaning of a statute, ‘we look first to the plain meaning . \. and give effect to that meaning where fairly possible.’ ” Gomez-Lopez v. Ashcroft, 393 F.3d 882, 885 (9th Cir.2005) (quoting Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.2004)).

The statute governing cancellation of removal and adjustment of status for certain non-permanent residents like Sanchez, 8 U.S.C. § 1229b(b)(1) (2006), requires that the alien: (

A) ha[ve] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (

B) ha[ve] been a person of good moral character during such period; (

C) ha[ve] not been convicted of an offense under

section 1182(a)(2), 1227(a)(2), or 1227(a)(3) ...; and (

D) establish^] that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. Here, the IJ found that Sanchez met each of the statutory criteria except (B), requiring good moral character. The definition of “good moral character” is in 8 U.S.C. § 1101(f) (2006).

It states: No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was— (3) a member of one of more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(

A) of

section 1182(

a) of this title; or subparagraphs (

A) and (

B) of

section 1182(a)(2) of this title and subparagraph (

C) thereof of such

section (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period.... 8 U.S.C. § 1101(f)(3) (2006) (emphasis added). 8 U.S.C. § 1182(a)(6)(E)(

i) in turn defines “[s]mugglers” — aliens who have at any time “knowingly ... encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” Sanchez is a member of one of the “classes of persons” that cannot establish good moral character because he admitted to aiding his wife to enter the United States illegally by paying a coyote to smuggle her across the border. Thus; under the terms of the good moral character definition, he cannot establish good moral character, whether he is inadmissible or not. 8 U.S.C. § 1101(f)(3).

Sanchez now argues that § 1182(d)(11), which provides a waiver of inadmissibility, should nonetheless permit him to establish good moral character because he smuggled only his spouse into the United States. That

section states: The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (

i) of subsection (a)(6)(

E) in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under

section 1181(

b) of this title and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under

section 1153(

a) of this title ..., if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. The problem with Sanchez’s argument is that the family unity waiver of inadmissibility is irrelevant to whether an alien smuggler can establish good moral character under § 1101(f). Since Sanchez falls within one of the “classes of persons” that cannot establish good moral character, the plain terms of the good moral character statute make his admissibility status irrelevant.

Section 1101(

f) specifically says: “[n]o person ... who ... is ... a member of one or more of the classes of persons, whether inadmissible or not, may establish good moral character” (emphasis added). Thus, the waiver of inadmissibility for lawful permanent residents and aliens seeking admission or adjustment of status as an immediate relative or immigrant under § 1153 who have smuggled only immediate family members has no bearing on whether an alien can establish good moral character.

In other words, § 1182(d)(ll) authorizes the Attorney General to waive inadmissibility if an alien has only smuggled immediate family members, but does not authorize the Attorney General to waive the “alien smuggling” bar to establishing good moral character for purposes of cancellation of removal. A statute giving the Attorney General discretion to grant relief from inadmissibility does not give the Attorney General discretion to grant relief from removal. See Abebe v.

Mukasey, 554 F.3d 1203, 1206 (9th Cir.2009) (en banc) (holding, in the equal protection context, that Congress’s treating entering aliens differently from illegally present aliens passes rational basis review). Harmonizing § 1101(

f) with § 1182(a)(6)(E), including the waiver authorized by § 1182(a)(6)(E)(iii), we now hold that alien smugglers are one of the classes of persons that cannot be found to have good moral character for the purposes of cancellation of removal, whether they are inadmissible or not. This plain reading of 8 U.S.C. §§ 1101(

f) and 1182(a)(6)(

E) is consistent with other expressions of congressional intentions in this area. Congress has demonstrated that it knows how to create an exception to the “classes of persons”

definitions within the text of § 1101(f)(3) itself when it wants to.

Section 1101(f)(3) bars most “[c]on-trolled substance traffickers” from establishing good moral character, see 8 U.S.C. § 1182(a)(2)(C), but expressly exempts persons that have committed “a single offense of simple possession of 30 grams or less of marihuana.” If Congress had intended to exclude family-only alien smugglers from the “class[] of persons” that cannot be found to have good moral character for cancellation of removal, it could have included a provision similar to the exception for controlled substance traffickers. See United States v. Fiorillo, 186 F.3d 1136, 1153(9th Cir.1999) (presuming that Congress acts purposefully when it includes an exception in one

section of a statute but omits it in another). Moreover, Congress has shown its willingness to override clearly and explicitly the basic definition of good moral character when it so desires. See 8 U.S.C. § 1229b(b)(2)(C) (“Notwithstanding

section 1101(

f) of this title,

an act or conviction that does not bar the Attorney General from granting relief under this paragraph by reason of subparagraph (A)(iv) shall not bar the Attorney General from finding the alien to be of good moral character.... ”). Congress’s failure to create an exception or waiver to the alien smuggling bar to showing good moral character in the removal context supports the inference that Congress intended no such exception. See Fiorillo, 186 F.3d at 1153.

We note that, even if the family unity inadmissibility waiver did apply in the cancellation of removal context, Sanchez would not qualify for the waiver under the plain language of its text. The § 1182(d)(11) waiver may only apply “in the case of any alien lawfully admitted for permanent residence” who temporarily proceeded abroad, and is not subject to an order of removal and is otherwise admissible, and “in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under

section 1153(

a) of this title.” Sanchez does not fall within either category. His argument that the family unity waiver should be read to apply to three categories of persons — lawful permanent residents, aliens seeking admission, and aliens seeking adjustment of status as an immediate relative or immigrant under § 1153(a) — is belied by the statutory text.

Congress made clear its intent to permit the waiver for two categories of persons — (1) lawful permanent residents; and (2) those aliens seeking admission or adjustment of status under § 1153(a)(i.e., those seeking a visa as a family-sponsored immigrant) — when it used the phrase “in the case of’ before each of the two categories. To receive a waiver under the second clause, an alien must be using § 1153(

a) to seek either admission or adjustment of status. Sanchez’s contention that any alien seeking admission may qualify for the waiver, regardless of whether he proceeds under § 1153(

a) or not, would open the waiver to virtually any alien smuggler, a result that would be contrary both to the statutory text and to the intent that Congress has demonstrated elsewhere in the statute. A plain reading of § 1182(d)(11) manifests Congress’s intent to limit alien smuggling waivers to certain defined classes of persons. The waiver provision at issue here, 8 U.S.C. § 1182(d)(11), only applies to “alien[s] lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who [are] otherwise admissible,” and aliens seeking “admission or adjustment of status as an immediate relative or immigrant under

section 1153(a).” A similar family unity waiver governing persons removable as alien smugglers applies also only to persons “lawfully admitted for permanent residence.” 8 U.S.C. § 1227(a)(1)(E)(iii) (2008). It is not irrational for Congress to provide family unity waivers only to persons who have complied with immigration laws by becoming lawful permanent residents or to those seeking admission or adjustment of status by applying for a visa, and not to aliens who entered without inspection and then attempted to smuggle others in after them. See Fiallo v.

Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (noting Congress’s “broad power” over immigration and naturalization). Applying the plain language of §§ 1229b and 1101(

f) would not lead to a “patently absurd” result, nor an unintended result. See Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 448 F.3d 1092, 1098(9th Cir.2006). We conclude that Moran’s “translation” of § 1182(d)(ll) into the cancellation of removal context is at odds with the plain meaning of §§ 1229b(b), 1101(f), and 1182(a)(6)(E). The family unity waiver of inadmissibility contained in § 1182(d)(ll) does not permit petitioner to demonstrate good moral character. Accordingly, the petition for review is DENIED. .

In his brief on appeal, Sanchez challenged whether substantial evidence supported the IJ’s decision that he was an "alien smuggler.” Sanchez asserted that, because he was a principal and a co-defendant (with his wife) in the crime of illegal entry, he could not be a smuggler, as he could not aid and abet his own crime. After review of the record, we find that substantial evidence supports the IJ’s decision. Counsel also waived this argument at oral argument.

Sanchez’s further argument that his admission of alien smuggling could not be used against him because he had not been advised of the elements of the crime of alien smuggling lacks merit. See Urzua Covarrubias v. Gonzales, 487 F.3d 742, 749 (9th Cir.2007).