                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 26 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SANTOS RONALD BACA,                              No. 07-70793

             Petitioner,                         Agency No. A077-872-069

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted February 5, 2010
                               Pasadena, California


Before: WARDLAW and CALLAHAN, Circuit Judges, and SEDWICK, **
District Judge.


       Santos Ronald Baca is a native and citizen of Nicaragua. He petitions for

review of the Board of Immigration Appeals’ (“BIA”) affirmance of an


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
Immigration Judge’s (“IJ”) denial of his application for adjustment of status under

Section 202 of the Nicaraguan and Central American Relief Act of 1997

(NACARA), Pub. L. No. 105-100, 111 Stat. 2193-2201 (Nov. 19, 1997), amended

by Pub. L. No. 105-139, 111 Stat. 2644-45 (Dec. 2, 1997). We have jurisdiction

pursuant to 8 U.S.C. § 1252(a)(2)(B). We review the BIA’s determinations of

purely legal questions de novo. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.

2002). We review claims of constitutional violations de novo. Torres-Aguilar v.

INS, 246 F.3d 1267, 1271 (9th Cir. 2001). We deny in part, grant in part, and

remand the petition for further proceedings.

      In his hearing before the IJ, Baca admitted to the government’s allegation in

the Notice to Appear that he entered the United States without inspection on

September 12, 1994. The government did not move to amend the Notice to Appear,

nor did it dispute the stated date of entry. AR 59-60, 103-05. The BIA denied

Baca’s application for special rule cancellation of removal under NACARA § 202,

finding that he had not established commencement of physical presence in the

United States prior to December 1, 1995, because he could not produce

contemporaneous government-issued documentation of his entry, as required by

the statute. NACARA § 202(b)(2), 8 C.F.R. § 245.13(e)(3). Our recent decision in

Hakopian v. Mukasey, 551 F.3d 843 (9th Cir. 2008), holds that “[a]llegations in a


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complaint are considered judicial admissions. In immigration proceedings, the

Notice to Appear serves the same function as a civil complaint.” Id. at 846 (citing

Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988)). We further

concluded in Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009), that where “the

government alleges an alien’s arrival date in the Notice to Appear, and the alien

admits the government’s allegation before the IJ, the allegations are considered

judicial admissions ‘rendering the arrival date undisputed.’” Id. at 1073 (citing

Hakopian, 551 F.3d at 846) (brackets omitted). We therefore remand for the BIA

to consider in the first instance whether Baca is entitled to relief under NACARA §

202 in light of Hakopian and Cinapian.

      The record does not support a conclusion that the IJ violated Baca’s

constitutional right to due process by refusing to allow him or a witness to testify

that he began residence in the United States prior to December 1, 1995. The

hearing transcripts reveal no instance in which the IJ failed to do so. Moreover,

Baca was afforded a “reasonable opportunity to present evidence on his behalf.”

Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).

      To the extent that we understand the argument, Baca contends that 8 C.F.R.

§ 245.13(e)(3) is ultra vires, because NACARA § 202 does not require that an

applicant use government documents to show commencement of physical


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presence. It is well-established, however, that under Chevron U.S.A. v. Natural

Res. Def. Council, 467 U.S. 837 (1984), the agency’s interpretation is “given

controlling weight” unless it is “arbitrary, capricious, or manifestly contrary to the

statute.” Id. at 844. The agency concluded that government documents are

necessary to provide “reliable and readily verifiable means of documenting such

physical presence.” Adjustment of Status for Certain Nationals of Nicaragua and

Cuba, 65 Fed. Reg. 15846-01, 15849 (March 24, 2000) (to be codified at 8 C.F.R.

§ 245). Therefore it imposed the government-issued document requirement.

Because this requirement is not “arbitrary, capricious, or manifestly contrary to the

statute,” Chevron, 467 U.S. at 844, § 245.13 is not ultra vires.

      Baca’s argument that NACARA § 202 and 8 C.F.R. § 245.13(e)(3) violate

equal protection by drawing an arbitrary line between applicants who commenced

their physical presence in the United States prior to December 1, 1995 but have no

government-issued proof, and those who do, lacks merit. “‘Line-drawing’

decisions made by Congress or the President in the context of immigration and

naturalization must be upheld if they are rationally related to a legitimate

government purpose.’” Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-64

(9th Cir. 2002) (quoting Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001)). We

conclude that the statute and regulation serve a rational purpose of ensuring


                                     Page 4 of 5
“reliable and readily verifiable means of documenting such physical presence.”

Adjustment of Status for Certain Nationals of Nicaragua and Cuba, 65 Fed. Reg.

15846-01, 15849 (March 24, 2000) (to be codified at 8 C.F.R. § 245).

      PETITION GRANTED in part; DENIED in part; REMANDED for

further proceedings.




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