                   FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

MARTIN NOE MORAN,                           No. 02-73551
                         Petitioner,
                 v.                          Agency No.
                                             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
                  MORAN v. ASHCROFT                895


                     COUNSEL

Cass W. Christenson, McKenna Long & Aldridge, Washing-
ton, DC, for the petitioner.
896                          MORAN v. ASHCROFT
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 encour-
aged are his wife and son. While the statutory scheme govern-
ing the requirements for cancellation of removal preserves
eligibility for individuals whose involvement in “alien smug-
gling” is limited to helping their own family members, includ-
ing 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,
  1
   The IJ’s finding that Moran arrived in 1992 is not supported by sub-
stantial 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).
                         MORAN v. ASHCROFT                          897
Moran was served with a notice to appear charging remov-
ability 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 admit-
ted 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
  2
   Ana 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.”
898                   MORAN v. ASHCROFT
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 Montero-
Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002).
Although we lack jurisdiction to review discretionary deter-
minations of moral character, we have jurisdiction to deter-
mine whether a petitioner’s conduct falls within a per se
exclusion category, an issue that relates to eligibility for can-
cellation. 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 smug-
glers, 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
                      MORAN v. ASHCROFT                      899
you were willing to help pay for the expense of the smug-
gler?” Moran responded, “Yes it[’]s customary, when a per-
son 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 under-
standing 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 conclu-
sion 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 defini-
tions 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.
900                   MORAN v. ASHCROFT
§ 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, abet-
           ted, or aided any other alien to enter or
           to try to enter the United States in viola-
           tion of law is inadmissible.

         (ii) Special rule in the case of family reuni-
         fication

           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 physi-
           cally 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 daugh-
           ter (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.
                       MORAN v. ASHCROFT                      901
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 seek-
    ing admission or adjustment of status as an immedi-
    ate 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 daugh-
    ter (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 cancella-
tion 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 statu-
tory sections relating to alien smuggling are written to apply
to inadmissibility and not to cancellation of removal, it is nec-
essary 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”).
902                    MORAN v. ASHCROFT
   [4] Translating the alien-smuggling inadmissibility provi-
sion 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 ref-
erences 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 cross-
reference [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 require-
      ment for cancellation of removal if, during the rele-
      vant 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 sec-
      tion 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 char-
      acter requirement for cancellation of removal where
      the Attorney General exercises discretion to waive
      the applicability of § 1182(a)(6)(E)(i). Such discre-
      tion 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
                     MORAN v. ASHCROFT                       903
    alien-smuggling provision to the good moral charac-
    ter 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 alien-
smuggling provision as part of the discretionary grant of can-
cellation 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. How-
ever, Ana was not yet Moran’s wife when he helped her and
904                       MORAN v. ASHCROFT
their son enter illegally. The applicable language of 8 U.S.C.
§ 1182(d)(11) is very clear: the waiver applies to an individ-
ual 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 individ-
ual) 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 sub-
stantial evidence and no exception or opportunity for waiver
applies, Moran does not satisfy the prerequisites for cancella-
tion 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 unin-
tended consequences current immigration laws visit upon
immigrant families. Punishing Martin Moran for endeavoring
to bring his family together could hardly be more antithetical
  3
    A Moran also claims he was denied a full and fair hearing, but the gov-
ernment 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 administra-
tive tribunal could remedy”).
                     MORAN v. ASHCROFT                     905
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 charac-
ter” 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.
