                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-4018
                                  ___________

Eugenio Cuadra,                      *
                                     *
             Petitioner,             *
                                     *
       v.                            * Petition for Review of an Order
                                     * of the Board of Immigration Appeals.
Alberto Gonzales, Attorney General   *
of the United States,                *
                                     *
             Respondent.             *
                                ___________

                          Submitted: February 18, 2005
                              Filed: August 10, 2005
                                 ___________

Before BYE, HEANEY, and MELLOY, Circuit Judges.
                           ___________

BYE, Circuit Judge.

         Petitioner Eugenio Cuadra seeks review of the Board of Immigration
Appeals’s (BIA) interpretation of the Nicaraguan Adjustment and Central American
Relief Act (NACARA), Pub. L. 105-100, 111 Stat. 2160 (1997). Cuadra may be
eligible for “special rule cancellation of removal” under NACARA if he can show,
inter alia, continuous physical presence in the United States for a period of seven
years immediately preceding his March 24, 2000, application for relief and good
moral character during this period. The BIA held 8 U.S.C. § 1101(f)(6) bars Cuadra
from establishing good moral character because he admittedly lied to an asylum
officer during an interview on May 23, 2001. Cuadra requests a full hearing on his
good moral character because he believes his admittedly false testimony occurred
after the relevant time period during which he must establish good moral character.

       The BIA had jurisdiction to hear this case under 8 C.F.R. § 1003.1. This court
has jurisdiction over the petition for review under 8 U.S.C. § 1252. We grant the
petition and remand for further proceedings.

                                          I.

       Cuadra is a native and citizen of El Salvador who entered this country without
inspection in November 1986 to escape civil war and poor conditions in his country.
He works for Servpro of Fargo/Moorhead, is an active member of the Templo
Cristiano Spanish Assembly of God Church, and has two United States citizen
children. In 1988, Cuadra filed an application for asylum with the Immigration and
Naturalization Service (INS). The INS interviewed him in June 1988, but it neither
granted him asylum nor placed him in deportation proceedings.

       Almost twelve years later on March 24, 2000, Cuadra filed an application for
special rule cancellation of removal under NACARA § 203.1 Cuadra was eligible for
this form of relief by virtue of his membership in a class of thousands of Salvadorian
and Guatemalan asylum seekers who filed a lawsuit against the INS claiming their
asylum applications had not been fairly adjudicated. See Am. Baptist Churches v.
Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991). In settling this lawsuit, the INS
agreed not to deport class members (commonly referred to as the ABC class), to give
each class member a proper de novo asylum interview, and to give class members


      1
        NACARA § 203 is an amendment to the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), and is now part of the “transitional
rules” found at IIRIRA § 309(f)(1)(A). See 8 U.S.C. § 1101 note.

                                         -2-
work authorization while they awaited these interviews. The INS, however, delayed
implementation of the settlement for years, and what were once strong asylum claims
became stale as conditions improved in El Salvador and Guatemala.

       By the mid-1990s, many ABC class members accrued the requirements for
suspension of deportation under 8 U.S.C. § 1254 (repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA) on September 30, 1996),
which gave the Attorney General discretion to grant permanent resident status to an
alien who had been in the United States for seven years, was of good moral character,
and whose deportation would cause extreme hardship for the alien or certain lawfully
present relatives. For many ABC class members, relief through suspension of
deportation was a better alternative than their now-stale asylum claims.

      As ABC class members began to apply for suspension of deportation, however,
Congress passed IIRIRA, which replaced suspension of deportation with a much
more restrictive form of immigration relief—cancellation of removal. See 8 U.S.C.
§ 1229b. To make relief easier for ABC class members, Congress passed NACARA,
which allows ABC class members to seek relief under conditions approximating pre-
IIRIRA suspension of deportation.

       ABC class members who were placed in removal proceedings prior to
IIRIRA’s effective date are eligible for NACARA suspension of deportation; ABC
class members who were not placed in deportation proceedings prior to IIRIRA’s
effective date (like Cuadra) are eligible for special rule cancellation of removal.
NACARA’s special rule cancellation of removal provision provides the Attorney
General with discretion to “cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence” an alien who:

      (i) is not inadmissible or deportable under paragraph (2) or (3) of section
      212(a) or paragraph (2), (3), or (4) of section 237(a) of the Immigration

                                         -3-
      and Nationality Act and is not an alien described in section
      241(b)(3)(B)(i) of such Act;

      (ii) has been physically present in the United States for a continuous
      period of not less than 7 years immediately preceding the date of such
      application;

      (iii) has been a person of good moral character during such period; and

      (iv) establishes that removal would result in extreme hardship to the
      alien or to the alien’s spouse, parent, or child, who is a citizen of the
      United States or an alien lawfully admitted for permanent residence.

NACARA § 203.

       When an alien applies for special rule cancellation of removal, his prior asylum
application is adjudicated concurrently. To prepare for his asylum interview, Cuadra
met with an individual named Tri Phan at Lutheran Social Services in Fargo. After
this meeting, Cuadra mistakenly believed past persecution and fear of future
persecution were requirements of both asylum and special rule cancellation of
removal. Such information, of course, is not relevant to an application for special
rule cancellation of removal.

       Because Cuadra misunderstood the requirements for obtaining the immigration
relief he sought, he admittedly lied to an asylum officer during an interview on May
23, 2001. He informed the asylum officer he had been a member of guerilla forces
in El Salvador during the 1980s and claimed to have beaten, tortured, and mistreated
soldiers, police, and guards during this time.

      Cuadra’s story had the opposite effect of what he had hoped: the asylum officer
concluded Cuadra was ineligible for asylum because he appeared to have been a
persecutor himself. See 8 U.S.C. § 1101(a)(42)(A) (stating the term “refugee” does


                                         -4-
not include anyone who “participated in the persecution of any person on account of
race, religion, nationality, membership in a particular social group, or political
opinion”). His application for asylum was accordingly denied, but his application for
special rule cancellation of removal was referred to an immigration judge (IJ)
pursuant to 8 C.F.R. § 1240.70(d), for a determination of whether Cuadra’s role as a
persecutor made him ineligible for such relief. See 8 U.S.C. § 1229b(c)(5).

       On January 9, 2002, the INS initiated removal proceedings against Cuadra. He
admitted the factual allegations in the Notice to Appear, conceded removability, and
withdrew his application for asylum, but he renewed his application for special rule
cancellation of removal. Cuadra conceded he gave false information to an asylum
officer during his May 23, 2001, interview, which, in general, statutorily precludes
an alien from establishing good moral character. 8 U.S.C. § 1101(f)(6) (stating that
an alien cannot establish good moral character if he has given false testimony to
obtain an immigration benefit “during the period for which good moral character is
required to be established”). However, he argued such false testimony occurred after
he filed his application for special rule cancellation of removal, not during the seven-
year period immediately preceding the filing, and § 1101(f)(6) therefore did not
preclude him from establishing good moral character.

       The IJ determined Cuadra’s post-application conduct was relevant because an
application for special rule cancellation of removal is a “continuing” application.
Thus, 8 U.S.C. § 1101(f)(6) statutorily precluded him from establishing good moral
character because he lied to an asylum officer “during the period for which good
moral character is required to be established.” The BIA affirmed the IJ’s decision on
the same grounds. Cuadra filed a timely petition for review with this court, arguing
he is entitled to a full hearing on the issue of his good moral character because his
post-application conduct falls outside the relevant time period for § 1101(f)(6)’s
statutory bar.



                                          -5-
                                          II.

       We review the BIA’s legal determinations de novo, giving substantial
deference to the BIA’s interpretation of the statutes and regulations it administers.
Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir. 2004). We do not defer, however,
to legal interpretations that are contrary to unambiguous statutory language. Patel v.
Ashcroft, 375 F.3d 693, 696 (8th Cir. 2004); see also Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984) (stating if Congress has spoken
to the question at issue, we “must give effect to the unambiguously expressed intent
of Congress”).

       8 U.S.C. § 1101(f)(6) states that an alien who “give[s] false testimony for the
purpose of obtaining any [immigration] benefits” and does so “during the period for
which good moral character is required to be established” is statutorily precluded
from establishing good moral character. Thus, the question for our review is what is
the relevant period for which moral character is required to be established for special
rule cancellation of removal.

      The relevant NACARA provision states the Attorney General has discretion
to “cancel removal of, and adjust to the status of an alien lawfully admitted for
permanent residence” an alien who, among other things:

      (ii) has been physically present in the United States for a continuous
      period of not less than 7 years immediately preceding the date of such
      application; and

      (iii) has been a person of good moral character during such period.

NACARA § 203 (emphasis added). The regulation implementing this statute directly
tracks the statutory language, stating that the alien must establish that he “has been

                                         -6-
physically present in the United States for a continuous period of 7 years immediately
preceding the date the application was filed,” and that he “has been a person of good
moral character during the required period of continuous physical presence.” 8
C.F.R. § 240.66(b) (emphasis added).

      According to the plain language of the statute and regulation, an alien must
show good moral character “during the required period of physical presence,” 8
C.F.R. § 240.66(b), and the required period of physical presence is the seven years
“immediately preceding the date of such application,” NACARA § 203 (emphasis
added). The statute and regulation thus make clear the relevant period of good moral
character is identical to the “required period of continuous physical presence,” 8
C.F.R. § 240.66(b), and the required period of physical presence ends on the date the
application “was filed,” NACARA § 203. We give effect to the statute’s
unambiguous language without deferring to the BIA’s interpretation. Chevron, 467
U.S. at 843-45; INS v. Cardoza-Fonseca, 480 U.S. 421, 445-49 (1987).

       The plain and unambiguous meaning of the statute and regulation finds support
in a comparison of these provisions with those governing NACARA suspension of
deportation. The regulation implementing NACARA suspension of deportation
proceedings provides, in relevant part, that an alien must show he “has been
physically present in the United States for a continuous period of not less than 7 years
immediately preceding the date the application was filed,” and “[d]uring all of such
period the alien was and is a person of good moral character.” 8 C.F.R. § 240.65
(emphasis added). This language directly tracks the language from pre-IIRIRA
suspension of deportation, which gave the Attorney General discretion to grant
permanent resident status to an alien who, among other things, “has been physically
present in the United States for a continuous period of not less than seven years
immediately preceding the date of such application, and proves that during all of
such period the alien was and is a person of good moral character.” 8 U.S.C. § 1254
(repealed by IIRIRA on September 30, 1996) (emphasis added).

                                          -7-
       In contrast, special rule cancellation of removal tracks the current statutory
language regarding cancellation of removal under 8 U.S.C. § 1229b. The relevant
portion of § 1229b gives the Attorney General discretion to grant permanent resident
status to an alien who can show, among other things, that he, “has been physically
present in the United States for a continuous period of not less than 10 years
immediately preceding the date of such application,” and “has been a person of good
moral character during such period.” 8 U.S.C. § 1229b(b)(1) (emphasis added).

      A comparison of these forms of relief highlights the obvious difference
between the statutory phrase in the suspension of deportation statute: “was and is,”
and the statutory phrase in the cancellation of removal statute: “has been.” Congress
and the INS knew how to expand the required period of good moral character beyond
the period immediately preceding the date of application by using the expansive
language “was and is” rather than the past tense “has been.” Congress did not choose
to expand the period of good moral character in the special rule cancellation of
removal statute.

      Cuadra filed his application for special rule cancellation of removal on March
24, 2000. Therefore, the relevant period during which he must show good moral
character is the seven-year period immediately preceding such date—from March 24,
1993, through March 24, 2000. Cuadra’s false statement to the asylum officer on
May 23, 2001, is outside the relevant time period “during . . . which good moral
character is required to be established” as set forth by the controlling statute and
regulation. 8 U.S.C. § 1101(f)(6). Thus, the IJ and BIA incorrectly determined
Cuadra’s post-application conduct made him statutorily ineligible for special rule




                                        -8-
cancellation of removal.2 Cuadra is entitled to a full hearing in which he can present
evidence of his good moral character.

                                           III.

       For the reasons provided above, we grant the petition for review and remand
to the BIA for further proceedings.

MELLOY, Circuit Judge, dissenting.

       I respectfully dissent. The majority holds that the relevant statutory language
is unambiguous, and thus the BIA’s interpretation is not entitled to deference. I do
not agree that the statutory language relevant to this case is unambiguous.
“Ambiguity is a creature not of definitional possibilities but of statutory context.
Brown v. Gardner, 513 U.S. 115, 118 (1994). That is, “the meaning of statutory
language, plain or not, depends on context.” Id. Here, that context includes the prior
suspension of deportation statute that permitted the Attorney General to suspend
deportation for an applicant who “was and is a person of good moral character.”
Immigration and Nationality Act of 1952, Section 244(a), codified as 8 U.S.C.
1254(a) (1994); see, e.g., Chanmouny v. Ashcroft, 376 F.3d 810, 811 n.1 (8th Cir.
2004) (discussing the change in available relief from suspension of deportation to
cancellation of removal caused by the IIRIRA). Further, as with any applicant for
government benefits, we expect applicants for immigration benefits to be honest in
their dealings with the government. See, e.g., 18 U.S.C. 1001 (prohibiting a person
from “knowingly and willfully . . . [making] any materially false . . . statement . . .”).

      2
       The IJ and BIA relied upon INS decisions which held applications were
“continuing.” Matter of Castro, 19 I. & N. Dec. 692 (BIA 1988); Matter of Alarcon,
20 I. & N. Dec. 557 (BIA 1992). To the extent these administrative decisions apply
to Cuadra’s situation, we find them clearly contrary to the plain meaning of the statute
and therefore disregard them.

                                           -9-
Given the emphasis on honesty and good moral character within all of the pertinent
statutes, it is unlikely that an applicant’s behavior simply does not matter during the
period between the filing of his or her application and the adjudication of his or her
claim. Viewed in this context, I believe the relevant statutory language is sufficiently
ambiguous that we should extend deference to the executive agency’s interpretation.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984)
(holding that courts should give substantial deference to administrative agency’s
construction of an ambiguous statute). I would affirm the decision of the BIA.
                          ______________________________




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