               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CATHERINE LOPENA TORRES,                 No. 13-70653
                      Petitioner,
                                         Agency No.
                v.                      A087-957-047

WILLIAM P. BARR, Attorney General,
                       Respondent.        OPINION



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

       Argued and Submitted October 11, 2018
                 Honolulu, Hawaii

                 Filed June 12, 2019

  Before: Kim McLane Wardlaw, Marsha S. Berzon,
         and Mark J. Bennett, Circuit Judges.

             Opinion by Judge Wardlaw;
            Concurrence by Judge Berzon
2                        TORRES V. BARR

                          SUMMARY *


                           Immigration

    Denying Catherine Lopena Torres’s petition for review
of a decision of the Board of Immigration Appeals, the panel
concluded that, because it must follow the court’s binding
precedent involving immigrants residing in the
Commonwealth of the Northern Mariana Islands (CNMI),
Torres was removable and ineligible for cancellation of
removal.

    Torres, a native and citizen of the Philippines, entered
the CNMI as a lawful guest worker at a time when the CNMI
was enforcing its own immigration laws pursuant to a
covenant between it and the United States establishing the
CNMI as a Commonwealth of the United States. Effective
November 28, 2009, U.S. immigration laws were imposed
on the territory, but Congress enacted a two-year reprieve
during which immigrants who had been lawfully present in
the CNMI under CNMI law on the effective date would not
be deported under 8 U.S.C. § 1182(a)(6)(A)(i) for not having
been admitted or paroled into the United States.

    In 2010, Torres was placed in removal proceedings, and
the BIA determined that she was removable under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) as an alien who “at the time of
application for admission” lacked a “valid entry document.”
The BIA also concluded that she was ineligible for
cancellation of removal.

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      TORRES V. BARR                        3

    The panel concluded that substantial evidence supported
the BIA’s decision that Torres was removable under
8 U.S.C. § 1182(a)(7)(A)(i)(I). The panel explained that this
court held in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017),
cert. denied, 138 S. Ct. 1261 (2018), that although
Congress’s two-year reprieve protected immigrants like
Torres from removability under 8 U.S.C. § 1182(a)(6)(A)(i)
on the basis that they had not been admitted or paroled into
the United States, it did not exempt them from removal
based on other grounds of removability. Therefore, the
reprieve offered Torres no protection from the charge that,
under 8 U.S.C. § 1182(a)(7)(A)(i)(I), she was an immigrant
who “at the time of application for admission” lacked a
“valid entry document.”

    The panel concluded that substantial evidence also
supported the BIA’s determination that Torres failed to
establish the ten years of continuous presence in the United
States required for cancellation of removal.          In so
concluding, the panel explained that in Eche v. Holder, 694
F.3d 1026 (9th Cir. 2012), this court held that residence in
the CNMI before U.S. immigration law became effective
does not count toward the residence required for
naturalization as a U.S. citizen.

   Finally, the panel concluded that it lacked jurisdiction to
consider Torres’s request to remand her case to the agency
to determine whether United States Citizenship and
Immigration Services should grant her application for
parole-in-place.

    Concurring, Judge Berzon, joined by Judges Wardlaw
and Bennett, wrote separately because she believes that
Minto v. Sessions was wrongly decided. Judge Berzon wrote
that Minto rendered meaningless Congress’s grant, under
4                     TORRES V. BARR

48 U.S.C. § 1806(e), of the two-year respite from removal
for aliens present without admission or parole. Under Minto,
Judge Berzon wrote, the very people ostensibly protected
from removal by Congress were not actually protected—
even if they could not be removed for lack of a valid entry,
under Minto they were removable for lack of a valid entry
document. Judge Berzon wrote that this holding requires a
tortured definition of “application” for admission, disregards
congressional intent, and, contrary to established canons of
statutory interpretation, construes 48 U.S.C. § 1806(e) to be
inoperative or superfluous, void or insignificant.


                        COUNSEL

Stephen Carl Woodruff (argued), Saipan, Commonwealth of
the Northern Mariana Islands; Janet H. King, King Law
Offices, Saipan, Commonwealth of the Northern Mariana
Islands; for Petitioner.

Lisa Damiano (argued) and William C. Minick, Trial
Attorneys; Linda S. Wernery, Assistant Director; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
                     TORRES V. BARR                       5

                        OPINION

WARDLAW, Circuit Judge:

    Catherine Lopena Torres, a native and citizen of the
Philippines who resides in the Commonwealth of the
Northern Mariana Islands (CNMI), petitions for review of
the Board of Immigration Appeals’ (BIA) decision affirming
an Immigration Judge’s (IJ) determination that Torres was
removable “as an intending immigrant without a . . . valid
entry document,” see 8 U.S.C. § 1182(a)(7)(A)(i)(I), and
that she was ineligible for cancellation of removal. We have
jurisdiction pursuant to 8 U.S.C. § 1252. Because we must
follow our court’s binding precedent in Minto v. Sessions,
854 F.3d 619 (9th Cir. 2017), cert. denied, 138 S. Ct. 1261
(2018), and Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012),
we deny Torres’s petition for review.

                             I.

    When Torres entered the CNMI in 1997, the CNMI was
enforcing its own immigration laws pursuant to a covenant
between it and the United States, establishing the CNMI as
a Commonwealth of the United States. See Covenant to
Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States of America
(Covenant), Pub. L. No. 94-241, 90 Stat. 263 (1976) (joint
resolution of Congress approving the Covenant). Torres
entered as a lawful guest worker, and maintained that status
up through November 28, 2009, the effective date of the
Consolidated Natural Resources Act of 2008 (CNRA), Pub.
L. No. 110-229, 122 Stat. 754 (codified in relevant part at
48 U.S.C. §§ 1806–1808), which imposed U.S. immigration
laws, specifically the Immigration and Nationality Act
(INA), 8 U.S.C. §§ 1101–1537, within the island territory.
In an effort to insure that immigrants like Torres were not
6                         TORRES V. BARR

unfairly penalized by the sudden imposition of U.S.
immigration laws and that the CNMI economy would not be
destabilized by the ensuing deportation of previously
lawfully admitted guest workers, Congress enacted a two-
year reprieve during which immigrants who had been
lawfully present in the CNMI on the effective date would not
be deported on the basis that they had not been admitted or
paroled into the United States. 8 U.S.C. § 1182(a)(6)(A).

    In 2010, the Department of Homeland Security (DHS)
issued a Notice to Appear to Torres, charging her with
removability both under 8 U.S.C. § 1182(a)(6)(A)(i), as an
alien present without having been admitted or paroled, and
under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien who “at the
time of application for admission” lacked a “valid entry
document.” The BIA concluded that Torres was an
“applicant for admission” who lacked a valid entry
document, that she was ineligible for cancellation of removal
because she could not satisfy the requisite ten years of
continuous residence in the United States, and that the
agency lacked the power to grant her parole-in-place. It
therefore affirmed the IJ’s order of deportation against
Torres.

                                  II.

   We conclude that substantial evidence supports the
BIA’s decision that Torres is removable as charged. 1 As an

    1
      Torres exhausted the arguments later decided in Minto before the
agency. Although she did not fully raise her claims in her opening brief,
she did so in her reply brief, and both she and the government were
allowed to fully brief the issues in supplemental briefing. Thus, while
we ordinarily do not consider arguments that are not presented in the
appellant’s opening brief, we do so here because Torres’s failure to
properly raise these arguments did not “prejudice” the government. See
                           TORRES V. BARR                                  7

initial matter, this court held in Minto that although
Congress’s two-year reprieve protected immigrants like
Torres from removability on the basis that they had not been
admitted or paroled into the United States, it did not exempt
them from removal based on other grounds of removability
set forth in the INA. 854 F.3d at 623, 625. The reprieve,
then, offered Torres no protection from the charge that she
was an immigrant who “at the time of application for
admission” lacked a “valid entry document.” 8 U.S.C.
§ 1182(a)(7)(A)(i)(I).

    In light of Minto, the BIA did not err in deeming Torres
an applicant for admission as of the CNRA’s effective date.
In Minto, this court held that an immigrant “who was present
in the CNMI without admission or parole on November 28,
2009, is ‘deemed’ to be ‘an applicant for admission’” to the
United States under 8 U.S.C. § 1225(a)(1). Minto, 854 F.3d
at 624. This court further held that by virtue of Minto’s mere
presence in the CNMI, he was deemed to have made a
continuing application for admission that did not terminate
“until it was considered by the IJ.” Id. Thus, under Minto,
the BIA properly concluded that Torres was an applicant for
admission, whose continuing application was before the
agency.

   Because Torres failed to submit any evidence
demonstrating that she possessed a valid unexpired
immigrant visa, reentry permit, border crossing card, or
other valid entry document required by the INA, the BIA


Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004) (explaining that
one of the “notable exceptions to” the court’s rule that it will not consider
arguments raised for the first time in the reply brief is “if the failure to
raise the issue properly did not prejudice the defense of the opposing
party”).
8                      TORRES V. BARR

properly determined that she was removable under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I).

                              III.

    Substantial evidence also supports the BIA’s
determination that Torres failed to carry her burden of
establishing ten years of continuous presence in the United
States. Construing § 705 of the CNRA, 122 Stat. at 867
(codified at 48 U.S.C. § 1806 note), we held in Eche that
“residence in the CNMI before United States immigration
law became effective” does not “count toward the residence
required for naturalization as a United States citizen.”
694 F.3d at 1030. Torres does not dispute that she resided
in the CNMI from 1997 through 2010. Therefore, the BIA
properly concluded that she is ineligible for relief in the form
of cancellation of removal.

                              IV.

    The BIA correctly noted that although Torres applied for
parole-in-place, she presented no evidence that such status
had been granted. Torres asks us to remand her case to the
agency to determine whether United States Citizenship and
Immigration Services should grant her application for
parole-in-place under 8 U.S.C. § 1182(d)(5)(A), which
grants the Attorney General discretion to “parole into the
United States temporarily under such conditions as he may
prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien
applying for admission to the United States.” Neither we nor
the agency has jurisdiction over this question. See 8 U.S.C.
§ 1182(d)(5)(A); 8 C.F.R. § 212.5(a); Rodriguez v. Robbins,
715 F.3d 1127, 1144 (9th Cir. 2013) (“The parole process is
purely discretionary and its results are unreviewable by
IJs.”). As the BIA correctly stated, the “parole authority
                      TORRES V. BARR                        9

under section 212(d)(5)(A) of the [INA] is delegated solely
to the [DHS secretary] and is not within the jurisdiction of
the [agency].”

   PETITION DENIED.



BERZON, Circuit Judge, with whom Judge Wardlaw and
Judge Bennett join, concurring:

    Circuit precedent allows no other result, so I concur in
the opinion. I write separately, however, because I believe
that Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), cert.
denied, 138 S. Ct. 1261 (2018), was wrongly decided.

    A group of immigrants, of which Ms. Torres might be a
part, resided legally in the Commonwealth of the Northern
Mariana Islands (“CNMI”) before November 28, 2009. On
that date, their status was transformed overnight as the
border of the United States’ immigration authority passed,
figuratively, over their homes. See Consolidated Natural
Resources Act of 2008, Pub. L. No. 110-229 § 702, 122 Stat.
754, 854–64 (codified at 48 U.S.C. §§ 1806–1808). In
recognition of the deeply destabilizing effect such a dramatic
change would have on the CNMI and its inhabitants,
Congress provided that “no alien who is lawfully present in
the Commonwealth pursuant to the immigration laws of the
Commonwealth on the transition program effective date
shall be removed from the United States on the grounds that
such alien’s presence in the Commonwealth is in violation
of section 212(a)(6)(A) of the Immigration and Nationality
Act,” until the noncitizen’s authorization expired or two
years after the effective date of transition. 48 U.S.C.
§ 1806(e)(1)(A). Section 212(a)(6)(A) makes inadmissible
10                       TORRES V. BARR

“aliens present without admission or parole.” 8 U.S.C.
§ 1182(a)(6)(A).

     Minto renders meaningless Congress’s grant of respite.
Because of our ruling in that case, every immigrant who
might otherwise have benefited from the two-year delay was
nonetheless removable under section 212(a)(7)(A)(i)(I),
which provides that “any immigrant at the time of
application for admission . . . who is not in possession of a
. . . valid entry document” is inadmissible. 8 U.S.C.
§ 1182(a)(7)(A)(i). The CNMI immigrants in question had
taken no affirmative act to apply for admission to the United
States on the effective date of consolidation or thereafter.
Yet Minto noted that a noncitizen “who was present in the
CNMI without admission or parole on November 28, 2009,
is ‘deemed’ to be ‘an applicant for admission’” to the United
States under section 235, 8 U.S.C. § 1225(a)(1), and then
assumed that every constructive “applicant” within the
meaning of section 235(a)(1) must have made a putative
(even though actually nonexistent) “application for
admission” for purposes of section 212(a)(7)(A)(i)(I).
Minto, 854 F.3d at 624. Any such individual in the CNMI
who had not been admitted or paroled within the meaning of
section 212(a)(6)(A) would also necessarily lack “a valid
entry document” for purposes of section 212(a)(7)(A)(i)(I).
As a result, it appears that under Minto the very people
ostensibly protected from removal by Congress were not
actually protected—even if they could not be removed for
lack of a valid entry, under Minto they were removable for
lack of a valid entry document. 1


     1
      Minto suggested that a visa program for CNMI workers would
provide relief from section 212(a)(7)(A)(i)(I). Minto, 854 F.3d at 625.
But that program was not available until October 7, 2011, nearly the end
                         TORRES V. BARR                             11

    This holding requires a tortured definition of
“application,” disregards congressional intent, and, contrary
to established canons of statutory interpretation, construes
48 U.S.C. § 1806(e) to be “inoperative or superfluous, void
or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004)
(quoting 2A N. Singer, Statutes and Statutory Construction
§ 46.06, at 181–86 (rev. 6th ed. 2000)); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 63–65, 174–79 (2012) (explaining
presumption against ineffectiveness and the surplusage
canon).

    Under the Immigration and Nationality Act (“INA”),
“applicant for admission” is a term of art denoting a
particular legal status. 8 U.S.C. § 1225(a)(1). It does not
mean an individual has made an actual application, since
someone could be classified as an “applicant for admission”
by way of their presence in the United States—as CNMI
residents were—despite never having applied for admission.
See id. Minto ignores a published BIA decision holding that
the constructive status of being an “applicant for admission”
under section 235(a)(1) does not mean that one is deemed to
be “applying . . . for admission” for purposes of
section 212(h), a provision contained in the same section as
section 212(a)(7)(A)(i)(I), the relevant ground of removal.
Matter of Y-N-P-, 26 I. & N. Dec. 10, 13 (B.I.A. 2012).
Before Minto, we had determined that this precedential BIA
opinion is worthy of deference. Garcia-Mendez v. Lynch,


of the two-year transition period and months after both Torres and Minto
were ordered removed. See Commonwealth of the Northern Mariana
Islands Transitional Worker Classification, 76 Fed. Reg. 55,501, 55,502
(Sept. 7, 2011) (to be codified at 8 C.F.R. pts. 103, 214, 274a, 299),
https://www.govinfo.gov/content/pkg/FR-2011-09-07/pdf/2011-22622.
pdf.
12                    TORRES V. BARR

788 F.3d 1058, 1063–65 (9th Cir. 2015); see also Arevalo v.
U.S. Attorney Gen., 872 F.3d 1184, 1197 (11th Cir. 2017)
(per curiam).

    Finally, Minto—without acknowledgment, let alone
justification—put this circuit’s interpretation of the INA in
tension with at least two other circuit courts. In 2013, years
before Minto’s 2017 publication, the Eleventh Circuit held
that section 212(a)(7) of the INA was inapplicable to
undocumented individuals who “were not outside the United
States seeking entry, but rather already in the United States
and seeking an adjustment of status permitting them to
remain.” Ortiz-Bouchet v. U.S. Att’y Gen., 714 F.3d 1353,
1356 (11th Cir. 2013) (per curiam). The Fifth Circuit agreed
in 2016. Marques v. Lynch, 834 F.3d 549, 561 (5th Cir.
2016). This conflict highlights that Minto’s impact is not
limited to the CNMI. So long as its holding regarding the
meaning of “application for admission” stands, national
immigration law will lack consistency.

    Moreover, within our circuit, the government need never
charge entry without admission under section 212(a)(6)(A),
as any immigrant removable on that ground will also lack “a
valid entry document” at “the time of [the fictional]
application    for    admission”       for   purposes    of
section 212(a)(7)(A)(i)(I).

    Of course, as a three-judge panel, we cannot overturn
Minto absent superseding Supreme Court authority. See
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)
(en banc). For that reason, I respectfully concur.
