FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN NOE MORAN, 

No. 02-73551 Petitioner,

Agency No.

v.  A75-677-283

JOHN ASHCROFT, Attorney General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 9, 2004—Pasadena, California

Filed January 20, 2005

Before: Betty B. Fletcher, Pamela Ann Rymer, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Betty B. Fletcher;

Concurrence by Judge Betty B. Fletcher

893
COUNSEL

Cass W. Christenson, McKenna Long & Aldridge, Washington, DC, for the petitioner. 

MORAN v. ASHCROFT 895
Nicole Nardone, U.S. Department of Justice, Washington,

DC, for the respondent. With her on the briefs was Jamie M.

Dowd. 

OPINION

B. FLETCHER, Circuit Judge: 

Martin Noe Moran (“Moran”) petitions for review of an

order of the Board of Immigration Appeals (“BIA”) affirming

the finding of the Immigration Judge (“IJ”) that Moran was

ineligible for cancellation of removal because he encouraged

two aliens to enter the country illegally. The aliens he encouraged are his wife and son. While the statutory scheme governing the requirements for cancellation of removal preserves

eligibility for individuals whose involvement in “alien smuggling” is limited to helping their own family members, including spouses and children, the statutory provisions make clear

that for acts of smuggling occurring after May 5, 1988, the

“family member” waiver does not apply to a spouse who was

not a spouse at the time of the smuggling. Because Moran and

his wife were married after he helped her enter the country

illegally, he does not fall within the exception to the alien

smuggling provision, and his involvement in helping his son

and his future wife (the mother of his son) cross the border in

1993 renders him ineligible for cancellation of removal. We

must therefore deny the petition for review. 

I. BACKGROUND

Martin Noe Moran, a native and citizen of Mexico, arrived

in the United States on April 15, 1989.1 In January 2000,

1The IJ’s finding that Moran arrived in 1992 is not supported by substantial evidence. Moran testified that he arrived on April 15, 1989. The

record shows that Moran only briefly departed in 1991 to care for a sick

parent. Because the record clearly shows that Moran was in Mexico for

fewer than ninety days, his trip to Mexico did not interrupt his continuous

presence in the United States, and so the correct date of entry is April 15,

1989. See 8 U.S.C. § 1229b(d)(2). 

896 MORAN v. ASHCROFT
Moran was served with a notice to appear charging removability under Immigration and Nationality Act section

212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being an

alien present in the United States without having been admitted or paroled. 

At his removal hearing, Moran conceded removability. He

also testified that he agreed to pay smugglers to help the

woman who is now his wife, Ana Yuki Moran, and their son

illegally enter the United States from Mexico.2 Specifically,

Moran testified that he told Ana he wanted her and their son

to come to live with him in the United States and he would

be willing to help pay for people to smuggle them across the

border. Moran testified that he knew Ana and their son would

be using the services of smugglers to enter the United States.

Ana made the initial arrangements with the smugglers, but

prior to the actual border-crossing, Moran and Ana’s parents

agreed to pay the smugglers. Once Ana and their son were in

the United States, Moran paid his share of the smugglers’ fee.

After the hearing, Moran applied for cancellation of

removal. Finding that Moran failed to meet the good moral

character requirement because he encouraged his future wife

and his son to enter the United States illegally, the IJ denied

Moran’s application for cancellation of removal and granted

Moran voluntary departure to Mexico. Moran appealed to the

BIA, which summarily affirmed the IJ’s order. 

Moran timely petitioned this court for review. 

II. JURISDICTION

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review

2Ana and the Morans’ son crossed the border illegally in 1993. Ana and

Martin were married in 1996. For clarity, we shall refer to Ana Yuki

Moran by her first name to distinguish her from petitioner, whom we call

simply “Moran.” 

MORAN v. ASHCROFT 897
a final order of removal. Included within our jurisdiction is

review of non-discretionary legal determinations regarding an

alien’s eligibility for cancellation of removal. See MonteroMartinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002).

Although we lack jurisdiction to review discretionary determinations of moral character, we have jurisdiction to determine whether a petitioner’s conduct falls within a per se

exclusion category, an issue that relates to eligibility for cancellation. See Romero-Torres v. Ashcroft, 327 F.3d 887, 890

(9th Cir. 2003). 

III. ANALYSIS

A. The IJ’s Factual Findings

We review BIA findings of fact for substantial evidence.

Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004). 

It is undisputed that Ana and the Morans’ son entered the

country illegally in March 1993 with the help of paid smugglers, that Moran provided a portion of the smugglers’ fee,

and that Moran made the payment to the smugglers after Ana

and their son were already in the United States. But Moran

contests the IJ’s conclusion that he encouraged Ana and their

son to enter the United States illegally. Moran argues that Ana

acted alone in hiring the smugglers. Moran admits he paid the

smugglers after Ana and their son had been brought into the

United States, but he claims that this was a payment made

after the fact to protect his family from the smugglers. 

The record contradicts Moran’s interpretation of events. At

the hearing before the IJ, Moran testified: “I told her, if you

want to come, do it any time that you want to. . . . I told her

that I wanted my son, my wife, my whole family to live here

with me, because it[’]s very hard to live alone.” The IJ then

asked Moran, “All right well when you told her that you

wanted her to return to the United States, did you tell her that

she would have to hire a smuggler for that purpose and that

898 MORAN v. ASHCROFT
you were willing to help pay for the expense of the smuggler?” Moran responded, “Yes it[’]s customary, when a person comes to the United States, you have to enlist a service

of a smuggler.” 

[1] Moran argues to this court that the IJ’s question was

leading and that Moran’s answer “only stated the obvious,”

i.e., that illegal entry requires the services of a smuggler. But

other testimony from the hearing corroborates the IJ’s understanding of Moran’s answer. Moran testified that he knew

beforehand that Ana and their son would be smuggled into the

United States and the smugglers would expect payment.

When the IJ asked him whether he “let [Ana] know that [he

was] willing to help pay the expense of the smuggler,” Moran

answered “yes.” The record also indicates that Moran made

an agreement with Ana’s parents about paying the smugglers:

Moran would pay for Ana, and her parents would pay for the

Morans’ son. When the IJ asked Moran whether the payment

agreement between Moran and Ana’s parents was made prior

to Ana’s hiring of the smuggler, Moran answered “yes.”

Moran even testified that Ana called from Tijuana, right

before she and their son crossed the border, to confirm that

Moran would have the money for the smugglers. The record

thus provides substantial evidence to support the IJ’s conclusion that Moran encouraged Ana and their son to enter the

country illegally. 

B. Eligibility for Cancellation of Removal

[2] In order to be eligible for cancellation of removal,

Moran must have “been a person of good moral character”

during the continuous 10-year period of physical presence

required by the statute. 8 U.S.C. § 1229b(b)(1)(B). The definitions section provides that an individual shall not be regarded

as a person of good moral character if the individual is “a

member of one or more of the classes of persons, whether

inadmissible or not, described in paragraphs (2)(D), (6)(E),

and (9)(A) of section 1182(a) of this title.” 8 U.S.C.

MORAN v. ASHCROFT 899
§ 1101(f)(3). Relevant to Moran’s case is 8 U.S.C.

§ 1182(a)(6)(E), which provides: 

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

[an] 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

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. 

900 MORAN v. ASHCROFT
The waiver section provides, in turn:

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 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). 

[3] The application of this statutory scheme in the cancellation of removal context is an issue of first impression in the

Ninth Circuit. Cf. Khourassany v. INS, 208 F.3d 1096, 1101

(9th Cir. 2000) (applying the alien smuggling rule to the good

moral character requirement in the context of a determination

of eligibility for voluntary departure). As the referenced statutory sections relating to alien smuggling are written to apply

to inadmissibility and not to cancellation of removal, it is necessary to extrapolate from these provisions in order to make

sense of them in the cancellation of removal context while

giving effect to the family unification policies Congress

expressed in the statute. See 8 U.S.C. § 1182(a)(6)(E)(ii)

(entitled “Special rule in the case of family reunification”); id.

§ 1182(d)(11) (providing for waiver specifically “to assure

family unity”). 

MORAN v. ASHCROFT 901
[4] Translating the alien-smuggling inadmissibility provision and its exceptions into the language of cancellation of

removal requires that we replace references to admissibility,

applications for admission, and adjustment of status with references to cancellation of removal. See Gonzalez-Gonzalez v.

Ashcroft, 390 F.3d 649, 652 (9th Cir. 2004) (explaining that

the cancellation of removal statute must be read “to crossreference [the relevant concepts] in [other] statutes, rather

than the statutes as a whole”). Doing so yields the following

set of rules: 

1. An alien fails the good moral character requirement for cancellation of removal if, during the relevant period of continuous physical presence, the

alien “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.” 8 U.S.C. § 1182(a)(6)(E)(i). 

2. However, an alien does not fail the good moral

character requirement for cancellation of removal if

the alien “is an eligible immigrant (as defined in section 301(b)(1) of the Immigration Act of 1990 [set

out as a note to 8 U.S.C. § 1255a]), was physically

present in the United States on May 5, 1988,” and

“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.” 8 U.S.C.

§ 1182(a)(6)(E)(ii). 

3. The alien also does not fail the good moral character requirement for cancellation of removal where

the Attorney General exercises discretion to waive

the applicability of § 1182(a)(6)(E)(i). 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

902 MORAN v. ASHCROFT
alien-smuggling provision to the good moral character determination of an applicant for 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.” 8 U.S.C.

§ 1182(d)(11) (cross-referenced by 8 U.S.C.

§ 1182(a)(6)(E)(iii)). 

[5] Because cancellation of removal is discretionary in any

event, the exception and the waiver provisions have the same

effect on the eligibility of an applicant for cancellation of

removal: where an applicant qualifies under either paragraph

(2) or paragraph (3) above, the alien-smuggling provision of

paragraph (1) does not operate to deny the applicant statutory

eligibility under 8 U.S.C. § 1229b(b)(1)(B) for cancellation of

removal. In the case of an applicant who falls under paragraph

(2) above, eligibility is preserved as a matter of law. In the

case of an applicant who meets the criteria for a waiver under

paragraph (3) above, eligibility is preserved because the

Attorney General may waive the applicability of the aliensmuggling provision as part of the discretionary grant of cancellation of removal. Therefore an applicant for cancellation

of removal who lacks good moral character under paragraph

(1) above nonetheless remains eligible for cancellation of

removal if the applicant qualifies for the exception under

paragraph (2) above or the waiver under paragraph (3) above.

[6] Applying these rules to Moran’s case is straightforward.

Moran’s encouragement of his son’s and future wife’s illegal

entry did not occur before May 5, 1988; therefore, Moran is

ineligible for the exception to the alien smuggling rule under

8 U.S.C. § 1182(a)(6)(E)(ii). Moran would be eligible for the

waiver of the alien-smuggling rule under 8 U.S.C.

§ 1182(a)(6)(E)(iii) if the only individuals he had helped

smuggle into the country were his son and his spouse. However, Ana was not yet Moran’s wife when he helped her and

MORAN v. ASHCROFT 903
their son enter illegally. The applicable language of 8 U.S.C.

§ 1182(d)(11) is very clear: the waiver applies to an individual 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.” Therefore,

Moran is ineligible for waiver of the alien-smuggling provision.3

CONCLUSION

[7] Because the IJ’s finding that Moran falls within the

terms of the alien-smuggling provision is supported by substantial evidence and no exception or opportunity for waiver

applies, Moran does not satisfy the prerequisites for cancellation of removal. The result we reach here, though at odds with

Congress’s intent to promote family unification, is compelled

by the text of the provisions that comprise the statutory

scheme. 

PETITION DENIED.

B. FLETCHER, Circuit Judge, concurring: 

This case is but one example of the harsh effects and unintended consequences current immigration laws visit upon

immigrant families. Punishing Martin Moran for endeavoring

to bring his family together could hardly be more antithetical

3A Moran also claims he was denied a full and fair hearing, but the government correctly asserts that we lack jurisdiction over this claim because

Moran failed to raise it before the BIA and therefore has not exhausted his

administrative remedies. Moran’s claim is not of a type that is exempt

from the exhaustion requirement. See Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004) (recognizing that due process claims may be among

the constitutional challenges exempt from the exhaustion requirement, but

“only if they involve more than ‘mere procedural error’ that an administrative tribunal could remedy”). 

904 MORAN v. ASHCROFT
to Congress’s stated goal of promoting family unification in

immigration law. To say that Moran’s efforts to be with his

son and his son’s mother reflect a lack of “good moral character” grossly distorts the meaning of that term, and it is with

a heavy heart that I apply this statutory classification today.

That the denial of Moran’s petition is required by the law

does not make this result — or this law — just.

MORAN v. ASHCROFT 905