Carlos David Hernandez v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS DAVID HERNANDEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70071
Agency No. A073-987-516
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 12, 2012
Honolulu, Hawaii
Before: SCHROEDER, CALLAHAN, and N.R. SMITH, Circuit Judges.
Carlos David Hernandez, a citizen of Guatemala, seeks review of a
determination by the Board of Immigration Appeals (“BIA”) denying him special
rule cancellation. Because Hernandez failed to register on or before December 31,
1991, for benefits under the Nicaraguan Adjustment and Central American Relief
FILED
JUL 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Because the parties are familiar with the facts and procedural history,1
we do not restate them here except as necessary to explain our decision.
2
Act, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997) (“NACARA”), we agree
with the BIA that he is not eligible for special rule cancellation.1
NACARA created a special rule cancellation of removal for certain aliens.
For Guatemalans, such as Hernandez, an alien has to show that he (a) entered the
United States on or before October 1, 1990, (b) has been continuously in the
United States for seven or more years, (c) is of good moral character, and (d)
would suffer extreme hardship if removed. See 8 C.F.R. §§ 1240.60, 1240.66. In
addition, NACARA requires Hernandez to have first registered for benefits on or
before December 31, 1991, (see 8 C.F.R. §§ 1240.60, 1240.61(a)(2) and (3),
1240.62(a)(2)).
Hernandez concedes that he did not register for benefits by December 31,
1991. In 1992, Hernandez consulted Carlos Escriba. Hernandez thought Escriba
was an attorney, but he was an unregistered immigration consultant and not an
attorney.
Hernandez claims that because Escriba misled him and failed to file an
asylum application for Hernandez until February 1, 1996, the January 3, 1995,

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deadline for filing an asylum application under NACARA should be equitably
tolled.
Regardless of whether the January 1, 1995 deadline may be equitably tolled,
see Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1098 (9th Cir. 2005), the
combination of two factors renders Hernandez ineligible for relief. First, special
rule cancellation under NACARA is only available to qualifying Guatemalans who
registered on or before December 31, 1991. See 8 C.F.R. § 1240.66(c) (requiring
that for a special rule cancellation, an alien “must be described in § 1240.61,”
which requires that the alien register by December 31, 1991). Second, we have
held that the December 31, 1991, deadline established by Congress is a statute of
repose that cannot be equitably tolled. Munoz v. Ashcroft, 339 F.3d 950, 956-57
(9th Cir. 2003); see also Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048-49 (9th
Cir. 2008). Thus, Hernandez’s failure to timely register on or before December 31,
1991, rendered him ineligible for special rule cancellation even before he had the
misfortune of meeting Escriba.
In sum, NACARA provides that otherwise qualifying Guatemalans who
registered by December 31, 1991 – that is let the government know of their
presence in the United States – could obtain immigration relief if they then filed an
asylum application by January 3, 1995. This appears to be a rational program.

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Accordingly, even if the statutory scheme were considered ambiguous, we would
defer to the Attorney General’s reasonable interpretation of the statutory scheme.
See Marmolejo-Campos v. Holder, 558 F.3d 903, 908-11 (9th Cir. 2009).
Finally, Hernandez argues that the government’s difficulties and
improprieties in enforcing the December 31, 1991, deadline reduce the importance
of the deadline and accepting his late application would not prejudice the
government. We do not see how the government’s liberal interpretation of what
constituted registration on or before December 31, 1991, can benefit Hernandez
who admits that he made no attempt to register. Furthermore, the government’s
difficulties in implementing the December 31, 1991, deadline does not relieve us of
our duty to follow our prior decision in Munoz, 339 F.3d at 957.
Hernandez did not register for benefits under NACARA on or before
December 31, 1991, and accordingly he is not eligible for special rule cancellation.
His petition for review of the BIA’s denial of his application for special rule
cancellation is DENIED.

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