FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO SANCHEZ, 

Petitioner, No. 04-75584

v. Agency No.  A077-832-827 ERIC H. HOLDER, JR., Attorney

General,* OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 15, 2008—Pasadena, California

Filed March 26, 2009

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Diarmuid F. O’Scannlain, Pamela Ann Rymer,

Andrew J. Kleinfeld, Barry G. Silverman,

M. Margaret McKeown, Raymond C. Fisher,

Richard A. Paez, Consuelo M. Callahan and N. Randy Smith,

Circuit Judges.

Opinion by Judge Silverman;

Concurrence by Judge Paez;

Dissent by Judge Pregerson

*Eric H. Holder, Jr. is substituted for his predecessor, Michael B.

Mukasey, as Attorney General of the United States. Fed. R. App. P.

43(c)(2). 

3625
COUNSEL

Frank P. Sprouls, Ricci & Sprouls, San Francisco, California,

for the petitioner.

Manuel Palau, Department of Justice, Washington, D.C., for

the respondent. 

OPINION

SILVERMAN, Circuit Judge: 

Mario Sanchez petitions for review of the Board of Immigration Appeals’s affirmance 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)(1). 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)(11). We

took this case en banc to resolve whether the alien smuggling

inadmissibility waiver in § 1182(d)(11) 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?

3628 SANCHEZ v. HOLDER
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)(ii), (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

SANCHEZ v. HOLDER 3629
controlled. In Moran, the court “translat[ed]” the “family

unity” waiver of inadmissibility in § 1182(d)(11), 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 appl[ied].” 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 “disregard[ed] 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 (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. 

[1] “In attempting to determine the meaning of a statute,

‘we look first to the plain meaning . . . and give effect to that

3630 SANCHEZ v. HOLDER
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 nonpermanent 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. 

[2] 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 — 

. . . 

SANCHEZ v. HOLDER 3631
(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.” 

[3] 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 return3632 SANCHEZ v. HOLDER
ing 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. 

[4] 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)(11) 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, No. 05-

76201, 2009 WL 50120, at *2 (9th Cir. Jan. 5, 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 authoSANCHEZ v. HOLDER 3633
rized 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. 

[5] 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]ontrolled 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, San3634 SANCHEZ v. HOLDER
chez 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. 

[6] 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.”

SANCHEZ v. HOLDER 3635
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 (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). 

[7] We conclude that Moran’s “translation” of

§ 1182(d)(11) 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)(11) does not permit petitioner to demonstrate good moral character.1

 Accordingly, the petition for

review is DENIED. 

PAEZ, Circuit Judge, concurring: 

I agree with the majority that Sanchez is ineligible for the

family unity waiver here because he is neither an “alien law1

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. Gonzalez, 487 F.3d 742, 749 (9th Cir. 2007). 

3636 SANCHEZ v. HOLDER
fully admitted for permanent residence who temporarily proceeded abroad,” nor “an alien seeking admission or

adjustment of status as an immediate relative or immigrant

under [8 U.S.C. § 1153(a)].” 8 U.S.C. § 1182(d)(11). I therefore concur in the result. 

I am not persuaded, however, that the statutory language

makes “plain” that the 8 U.S.C. § 1182(a)(6)(E) waivers are

inapplicable to an evaluation of moral character. Mj. Opin. at

3634. The moral character provision states that “[n]o person

shall be . . . found to be[ ] a person of good moral character”

if they are or were a member of certain “classes of persons .

. . described in” § 1182(a), including those described in paragraph (6)(E). 8 U.S.C. § 1101(f)(3). Paragraph (6)(E) states:

(E) Smugglers 

(i) In general 

Any alien who at any time knowingly

has encouraged, induced, assisted, abetted, or aided any other alien to enter or

to try to enter the United States in violation of law is inadmissible. 

(ii) Special rule in the case of family reunification 

Clause (i) shall not apply in the case of

alien who is an eligible immigrant (as

defined in section 301(b)(1) of the Immigration Act of 1990), was physically

present in the United States on May 5,

1988, and is seeking admission as an

immediate relative or under section

1153(a)(2) of this title (including under

section 112 of the Immigration Act of

1990) or benefits under section 301(a) of

SANCHEZ v. HOLDER 3637
the Immigration Act of 1990 if the alien,

before May 5, 1988, has encouraged,

induced, assisted, abetted, or aided only

the alien’s spouse, parent, son, or daughter (and no other individual) to enter the

United States in violation of law. 

(iii) Waiver authorized 

For provision authorizing waiver of

clause (i), see subsection (d)(11) of this

section. 

8 U.S.C. § 1182(a)(6)(E). 

At issue here is thus how the “class[ ] of persons . . .

described in paragraph[ ] (6)(E)” is defined. The majority

today finds it clear that this class is described solely in subparagraph (6)(E)(i), emphasizing that the moral character provision bars those “whether inadmissible or not” who fall

within the classes listed in § 1101(f)(3).1 However, I find it at

least equally plausible that the relevant class is that described

by (6)(E) in its entirety — both the general definition offered

in (6)(E)(i) and the exceptions to that definition provided by

(6)(E)(ii) and (iii). This construction comports with the plain

language of the moral character provision, which points to the

class described in (6)(E) rather than that described in

1The “whether inadmissible or not” language sheds little light on the

question of whether the exceptions apply. As the BIA has observed, that

language was likely inserted to clarify that § 1101(f) and § 1182, an inadmissibility statute, are applicable to aliens in other proceedings. See In re

M-, 7 I. & N. Dec. 147, 150-51 (BIA 1956) (observing that the predecessor phrase “whether excludable or not” was inserted “because it was considered necessary in order to guard against a possible interpretation that

section [1101(f)(3)] did not relate to aliens applying for voluntary departure and suspension of deportation”); In re Garcia-Hernandez, 23 I. & N.

Dec. 590, 593 n.2 (BIA 2003) (“whether inadmissible or not” phrase is

meant to assure applicability beyond the admissibility context). 

3638 SANCHEZ v. HOLDER
(6)(E)(i). Moreover, this is how the BIA has interpreted the

moral character provision for over fifty years. See In re M-,

7 I. & N. Dec. 147, 149-51 (BIA 1956); In re GarciaHernandez, 23 I. & N. Dec. 590, 593 (BIA 2003) (noting that

“the ‘description’ of the category . . . also includes the exception”). Because I find the statute ambiguous as to whether the

exceptions are included within the description of the class, I

would defer to the BIA’s reasonable answer that they are so

included. See Chevron U.S.A., Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 843 (1984). I would therefore hold that

the 6(E)(iii) waiver is applicable to a determination of good

moral character. 

I also write separately to note that while the statutory

scheme as interpreted here may not be “patently absurd,” mj.

opin. at 3636, it does appear “antithetical to Congress’s stated

goal of promoting family unification in immigration law.”

Moran v. Ashcroft, 395 F.3d 1089, 1095 (9th Cir. 2005)

(Fletcher, J., concurring). In justifying the availability of the

waiver to those applying for admission but not to those applying for cancellation of removal, the majority asserts that it is

rational for Congress to draw a distinction between those who

have entered the United States unlawfully and those who,

despite helping others to enter illegally, are themselves seeking admission through the proper legal channels. Mj. opin. at

3636. This may be true, but it is harder to explain the distinction between those who have entered the United States illegally and those who have both entered the United States

illegally and have helped their “spouse, parent, son, or daughter” to do so. Under current law, a person who has helped

only himself is eligible for humanitarian relief from deportation to prevent “exceptional and extremely unusual hardship

to the alien’s [lawfully present] spouse, parent, or child.” 8

U.S.C. § 1229b(b)(1). However, a person who has also helped

an immediate family member enter the country is ineligible

for such relief because, under the law as interpreted here, he

necessarily lacks “good moral character.” In short, a person

who leaves his family behind as he seeks better opportunities

SANCHEZ v. HOLDER 3639
in the United States may have good moral character, but a

person who attempts to bring a spouse or child along may not.

This not only makes little sense in the context of a family

unity provision, but “grossly distorts the meaning of” the term

“good moral character.” Moran, 395 F.3d at 1095 (Fletcher,

J., concurring); see also Pregerson dissent at 3644. 

Fortunately, as the majority notes, Congress “knows how to

create an exception” to the classes of persons deemed necessarily lacking in good moral character. Mj. opin. at 3634. A

clear pronouncement by Congress that the family unity policy

behind the “family smuggling” exception in the admissibility

context applies equally to moral character and cancellation of

removal determinations would ensure that people like Mr.

Sanchez — by all accounts a model employee, son, husband,

and father to three American children, see Pregerson dissent

at 3640-41, 3644 — would not be summarily deported for

endeavoring to keep their families together while seeking a

better life. 

PREGERSON, Circuit Judge, dissenting: 

This is a story about an industrious young man, Mario Sanchez (“Sanchez”), who was born into poverty in La Palma,

Mexico, and forced by circumstances to drop out of ninth

grade to help support his mother, father, and five siblings.

Sanchez worked at a restaurant as a dishwasher and a preparer

of food, and then at a warehouse. In April 1988, when Sanchez was twenty-two years old, he entered the United States

without inspection in search of a better life. He found a job

in Oakland, California operating the large metal press

machine at a scrap metal company, worked hard, and saved

his money. Five years later he took three weeks off work and

returned to his hometown in Mexico to marry his sweetheart.

He paid a “coyote” $1,000 to help him and his bride Ana

cross the border. 

3640 SANCHEZ v. HOLDER
Mario and Ana Sanchez established a home in Oakland in

1993. They have three U.S. born children, Oswaldo, Isidoro,

and Mario Jr., now aged six, twelve, and fourteen years

respectively. At the time the IJ made his decision, the children

were nine months, six years, and nine years old. The IJ noted

that Isidoro and Mario Jr. were “doing quite well . . . in

school,” and that Mario Jr. was enrolled in his school’s

“gifted and talented children” program. Sanchez also testified

that Mario Jr. and Isidoro had earned medals in school mathematics competitions. 

Both Mario and Ana Sanchez work full-time. Together they

earn an annual income of around $40,000. Sanchez has a

steady and consistent employment history. For thirteen years

Sanchez worked for the scrap metal company in Oakland. In

2001, Sanchez found a better job as a forklift operator. 

Sanchez paid his income taxes every year from 1988 until

his marriage in 1993. Since they were married, the Sanchezes

have paid their income taxes every year. They provide their

family with medical insurance. They live in a duplex that they

own jointly with another relative. A letter from Sanchez’s parish priest at St. Elizabeth Parish in Oakland tells us that Sanchez “has attended our Church services since year 1988,” and

that Sanchez “is a good and hardworking person.” Although

Sanchez pled guilty to a DUI in 1991, two years before he

was married, he has not been arrested since then. For the past

sixteen years, the Sanchezes have been working hard to provide their three American-born children with a good life in the

United States. They also take care of Sanchez’s ailing, diabetic father, a lawful permanent resident, who lives with

them. 

In 2000, Sanchez wished to legalize his status in the United

States, so he sought help from two immigration attorneys,

John Ricci (“Ricci”) and Frank Sprouls (“Sprouls”). These

attorneys advised Sanchez to first file an application for asySANCHEZ v. HOLDER 3641
lum on the basis of economic discrimination.1

 Ricci appeared

before the IJ in June of 2000 and withdrew the baseless asylum application prepared by his law firm. Ricci told the IJ that

he wished to file an application for cancellation of removal.

The IJ then continued the matter. 

Sadly, like many other unsophisticated petitioners, Sanchez

hired attorneys who have poor records before the state bar and

our court. California State Bar records cited Ricci twice for

“Discipline, probation; no actual susp[ension]” and once for

“Public reproval with/duties.” Sprouls, who represented Sanchez before the BIA and our court, has a record of misconduct

before the Ninth Circuit. In 2005, Sprouls “was on probation

for numerous ethical violations in immigration matters.” See

Granados v. Keisler, No. 04-76322, 2007 WL 3230298, at *2

(9th Cir. Oct. 31, 2007) (citing In re Sprouls, No. 05-80025

(9th Cir. Sept. 23, 2005)). In his February 2005 investigation

of Sprouls, the Ninth Circuit Appellate Commissioner found

that Sprouls violated his duties as an attorney by engaging in

many instances of “deficient conduct.”

2

 Report and Recommendation of the Appellate Commissioner, adopted in In re

Sprouls, No. 05-80025 (9th Cir. Sept. 23, 2005). In a number

of cases the Appellate Commissioner determined that

1Sanchez’s application for asylum, prepared by his immigration attorneys, stated the basis for his claim as: “I have lived in the United States

for over ten years. I would be subject to discrimination, harassment and

economic deprivation by the ruling powers. I come from a poor background, along with my family I would be denied economic opportunities.”

2The Appellate Commissioner found that Sprouls’s deficient conduct

included “filing and knowingly maintaining a frivolous action,” “negligently failing to file a response to [a] motion,” “filing frivolous and misleading brief[s],” “negligent[ly] fail[ing] to respond to the court’s orders,”

“negligently failing to file an opposition to the respondent’s motion to dismiss,” “fail[ing] to act diligently on behalf of his client,” “fail[ing] to

respond to court orders and fail[ing] to prosecute the petitions,” “fil[ing]

late briefs in seven petitions for review,” and filing five “[i]dentical

[d]efective [b]riefs” on behalf of different clients. Appellate Commissioner’s Report and Recommendation, adopted in In re Sprouls, No. 05-80025

(9th Cir. Sept. 23, 2005). 

3642 SANCHEZ v. HOLDER
Sprouls’s deficient conduct “had the potential to injure his clients.” Id. Furthermore, in 2007 our court found that Sprouls

provided ineffective assistance of counsel to another client in

Granados v. Keisler.

3

See Granados, 2007 WL 3230298, at

*2. 

In the case before us, the IJ found that Sanchez met all the

requirements necessary to grant his petition for cancellation of

removal except one: “Unfortunately [Sanchez] is barred from

claiming good moral character,” because “he has paid a coyote to bring his wife into the United States illegally.”

4

 The IJ

therefore denied Sanchez’s application for cancellation of

removal, and the BIA affirmed. 

On appeal to this court, we held that under the reasoning of

Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), Sanchez

was entitled to cancellation of removal because Congress

intended for the family unity waiver to apply in circumstances

where an alien has helped “smuggle” his spouse into the

country. Thus, the majority held that Sanchez possessed the

requisite “good moral character,” and granted his cancellation

of removal application. I agree with the reasoning of Moran

and the holding of the three-judge panel in this case. 

Instead of following the logic of Moran, the majority strug3

In Granados we held that “[t]he deficient performance of Sprouls in

the proceedings to reopen Granados’s case before the IJ and the BIA is

plain on the face of the administrative record and rises to the level of a due

process violation because Granados was prevented from reasonably presenting his case.” Granados, 2007 WL 3230298, at *2. “Sprouls presented

an incomplete and grammatically flawed motion to reopen, failed to comply with any of the Losada requirements for an IAC claim, failed to investigate or elicit material facts relevant to Granados’s individual case, failed

to provide a translated version of the motion to reopen to Granados, and

on his own initiative included false statements of fact.” Id.

4The IJ also noted that, “[t]he court need not reach into the issue of discretion. But if I do, then I will find that I will exercise my discretion in

[Sanchez’s] favor.” 

SANCHEZ v. HOLDER 3643
gles through a labyrinth of complex statutory interpretation to

conclude that Congress intended that people like Sanchez be

deemed to have “bad moral character.” With simple common

sense, though, one should easily conclude that the opposite is

true. Indeed, if we tried to explain the majority’s complex

interpretation of Congress’s statutes to members of Congress

themselves, I submit that many would be amused. 

How can we possibly say members of Congress intended

that a man who married his hometown sweetheart, brought

her here for a better life, worked hard for twenty-one years to

provide for his three children, bought a home, attended church

regularly, and cared for his ailing father is a man of bad moral

character? Most would say, instead, that this is the story of a

good man making every attempt for himself, his wife, and his

three American citizen children to live the American dream.

In our nation’s history, millions of immigrants have done the

same. How can we condemn this behavior as “bad moral

character” after honoring this dream since the birth of our

nation? 

Instead, I find the reasoning of Moran v. Ashcroft to be

much more compelling. Moran held that a petitioner for cancellation of removal who assisted another alien to enter this

country illegally generally does not meet the good moral character requirement for cancellation of removal. Moran, 395

F.3d at 1093. But we further held that under the family unity

waiver5“the statutory scheme governing the requirements for

5The text of the family unity waiver reads as follows: 

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) of

this section 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

3644 SANCHEZ v. HOLDER
cancellation of removal preserves eligibility for individuals

whose involvement in ‘alien smuggling’ is limited to helping

their own family members, including spouses and children.”

Id. at 1090 (emphasis added). 

The Moran court found that because the alien-smuggling

provision and its exceptions6 are written with regards to “inadmissibility” rather than “cancellation of removal,” courts

must translate the alien-smuggling inadmissibility provision

and its exceptions into the language of cancellation of

removal. Id. at 1093. The Moran court explained that such a

translation “requires that we replace references to admissibility, applications for admission, and adjustment of status with

references to cancellation of removal.” Id. (citing GonzalezGonzalez v. Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004)).

According to Moran, the family unity waiver rule in the context of cancellation of removal would therefore read: 

The alien . . . does not fail the good moral character

requirement for cancellation of removal where the

Attorney General exercises discretion to waive the

applicability of [the alien-smuggling provision].

Such discretion may be exercised “for humanitarian

purposes, to assure family unity, or when it is otherwise in the public interest,” to waive the applicability of the alien-smuggling provision to the good

moral character determination of an applicant for

adjustment of status as an immediate relative or immigrant under

section 1153(a) of this title (other than paragraph (4) thereof), 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. 

8 U.S.C. § 1182(d)(11). 

6The alien-smuggling provision is found in 8 U.S.C. § 1182(a)(6)(E)(i),

and the exceptions are found in 8 U.S.C. § 1182(a)(6)(E)(ii) and (iii), and

§ 1182(d)(11). 

SANCHEZ v. HOLDER 3645
cancellation of removal who “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.”

Id. at 1094 (quoting 8 U.S.C. § 1182(d)(11) (cross-referenced

by 8 U.S.C. § 1182(a)(6)(E)(iii))). This makes perfect sense.

Indeed, by establishing a “family unity” waiver, Congress

has shown that it wants to help immigrant men and women

maintain their marriages and families. Congress has further

demonstrated in the specific context of cancellation of

removal that the family unity waiver applies. When stating the

requirements of “cancellation of removal,” Congress included

the definition of “good moral character.”

7

 In the definition of

“good moral character,” Congress referred to the aliensmuggling provision and its exceptions, including the family

unity waiver.8 Why should we disregard the explicit intent of

Congress, as the majority asks us to? The majority finds an

exception barring the family unity waiver in the case of cancellation of removal, but Congress has never stated that such

an exception exists. 

In short, I agree with the Moran court’s reasoning and the

holding of the three-judge panel’s opinion that the family

unity waiver applies to Sanchez, and that we should grant his

application for cancellation of removal. Accordingly, I dissent.

7When defining the requirements for cancellation of removal in 8

U.S.C. § 1229b, Congress expressly included the good moral character

definition found in 8 U.S.C. § 1101(f)(3). 

8

See supra note 6. 

3646 SANCHEZ v. HOLDER