author: REINHARDT, Circuit Judge:

text:
    Travis Z. GONZALES, an individual, Plaintiff-Appellant v. CARMAX AUTO SUPERSTORES, LLC, a Virginia Limited Liability Company; Santander Consumer USA, Inc., an Illinois Corporation; Safeco Insurance Company of America, a New Hampshire Corporation, Defendants-Appellees. Travis Z. Gonzales, an individual, Plaintiff-Appellee, v. CarMax Auto Superstores, LLC, a Virginia Limited Liability Company; Santander Consumer USA, Inc., an Illinois Corporation; Safeco Insurance Company of America, a New Hampshire Corporation, Defendants-Appellants.
    No. 14-56842, No. 14-56305
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 2, 2016, Pasadena, California
    Filed October 20, 2016

      Hallen D. Rosner (argued), Rosner, Barry & Babbitt, LLP, San Diego, California, for Plaintiff-Appellant/Cross-Appellee.
    Kurt A. Schlichter (argued), Steven C. Shonack, Jamie L. Keeton, Schlichter & Shonack, LLP, El Segundo, California, for Defendants-Appellees/Cross-Appellants.
    Before: STEPHEN REINHARDT, ALEX KOZINSKI, and KIM McLANE WARDLAW, Circuit Judges.
   OPINION

REINHARDT, Circuit Judge:

Travis Z. Gonzales sued CarMax Auto Superstores, LLC (“CarMax”), a used car retailer, after experiencing problems with a vehicle he purchased at one of its lots. Gonzales alleged violations of four California consumer protection laws: (1) the Consumer Legal Remedies Act (“CLRA”); (2) the Song-Beverly Consumer Warranty Act (“Song-Beverly”); (3) common law fraud and deceit; and (4) the Unfair Competition Law (“UCL”). Gonzales’s claims under the CLRA and UCL were both based on Car-Max’s alleged violation of California Vehicle Code section 11713.18(a)(6), which requires a car dealer to provide consumers with a “completed inspection report” prior to the sale of any “certified” vehicle. The district court dismissed Gonzales’s fraud and Song-Beverly claims and granted Car-Max summary judgment on his CLRA and UCL claims.

The key issue before us is whether a report that fails to indicate the results of an inspection in a manner that conveys the condition of individual car components to a buyer is a “completed inspection report” under California law. Because we conclude that it is not, we reverse the district court’s decision to grant summary judgment to CarMax,on Gonzales’s CLRA and UCL claims.

Factual and Procedural Background

Gonzales purchased a 2007 Infiniti G35 from CarMax’s Costa Mesa sales lot. Gonzales alleges that he was drawn to CarMax after hearing radio and online advertisements regarding the benefits of purchasing a “certified” vehicle that had passed Car-Max’s rigorous “125-point” certification inspection. Gonzales further alleges that he would have paid less, or possibly not even purchased the car, had it not been a “certified” vehicle.

• According to Gonzales, it is CarMax’s policy ■ to simply provide purchasers of used vehicles with a pre-printed “CarMax Quality Inspected Certificate” (“CQI Certificate”) listing vehicle components that were inspected. Gonzales received two versions of the CQI Certificate: a one-sided CQI Certificate provided to him prior- to sale, and a two-sided CQI Certificate, which was placed in the glove compartment before he took possession of the car. In addition to the two CQI Certificates that CarMax provides to purchasers of used vehicles, CarMax also uses a third document known as the “CQI/VQI Checklist.” This is a checklist which contains 236 points of inspection and is filled out by .a technician during the inspection process. The CQI/VQI Checklist, unlike the CQI Certificates, indicates the condition of each individual component inspected. Rather than provide the CQI/VQI Checklist, to consumers, CarMax destroys the document after the inspection results are entered into its electronic system, and no copy of the Checklist is retained.

Shortly after purchasing the Infiniti, Gonzales experienced some difficulty with the car. He contended that the brake pads needed replacing, there was a clicking noise coming from the engine, and the windows malfunctioned. Additionally, the check-engine light illuminated routinely, there were problems with the transmission, the clicking -noise from the engine persisted, and other warning lights on the dashboard illuminated “in clusters.”

Gonzales filed suit in California state court alleging that CarMax violated California consumer protection laws by selling him a lemon and falsely claiming that the car was certified. Gonzales’s central argument is that CarMax violated California law by failing to provide him with a “completed inspection report” prior to the sale of the “certified” vehicle.

CarMax timely filed a notice of removal pursuant to 28 U.S.C. § 1441(b) claiming diversity jurisdiction. A week after removal, CarMax filed a motion to dismiss the first amended complaint, as well as a motion to strike Gonzales’s punitive damages claim. The following month, while the motion to dismiss the first amended complaint was pending, the district judge issued an order to show cause regarding subject matter jurisdiction, noting that he had “serious doubts” whether the case met the amount-in-controversy requirement. After the parties responded to the order to show cause, the district judge found that Car-Max had shown by a preponderance of the evidence that the amount in controversy was over $75,000 and thus the action was properly removable.

The district court then granted Car-Max’s motion to dismiss on all claims except for Gonzales’s CLRA and UCL claims. Following discovery, CarMax filed a motion for summary judgment on Gonzales’s CLRA and UCL claims. The district court granted the motion, holding that there was no material legal difference between the one-sided form and the two-sided form, and that both forms were legally sufficient. Gonzales appeals the district court’s dismissal and summary judgment orders. We consider only the latter here. We dispose of the other claims in a memorandum disposition filed concurrently.

Discussion

I. Standards of Review

We review de novo a district court’s determination that diversity jurisdiction exists, but review any factual determinations necessary to establish diversity jurisdiction for clear error. Kroske v. U.S. Bank Corp., 432 F.3d 976, 979-80 (9th Cir. 2005).

An order granting summary judgment is reviewed de novo. “We must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant law.” Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913, 916 (9th Cir. 2002).

II. Subject Matter Jurisdiction

Gonzales contends that the district judge erred in exercising diversity-based subject matter jurisdiction over this case. We conclude that he did not.

A defendant generally may remove any action filed in state court if a federal district court would have had original jurisdiction. 28 U.S.C. § 1441(a). To establish original jurisdiction based on diversity of parties, the amount in controversy must “exceed[] the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). We have defined the amount in controversy as the “amount at stake in the underlying litigation,” Theis Research, Inc. v. Brown & Bain, 400 F.3d 659, 662 (9th Cir. 2005); this includes any result of the litigation, excluding interests and costs, that “entail[s] a payment” by the defendant. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 701 (9th Cir. 2007). This amount includes, inter alia, damages (compensatory, punitive, or otherwise) and the cost of complying with an injunction, as well as attorneys’ fees awarded under fee shifting statutes. Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th Cir. 2000).

In this case, when the potential cost of complying with injunctive relief is considered along with Gonzales’s claims for compensatory damages and punitive damages, the district court did not err in finding that the jurisdictional amount-in-controversy requirement was satisfied.

III. Consumer Legal Remedies Act and Unfair Competition Law Claims

Section 11713.18 of the California Vehicle Code prohibits a car dealer from either advertising for sale or selling a used vehicle as “certified” under nine circumstances, including if:

Prior to sale, the dealer fails to provide the buyer with a completed inspection report indicating all the components inspected.

Cal. Veh. Code § 11713.18(a)(6). The statute further provides that a violation of any of these provisions is actionable under the CLRA, the UCL, false advertising statutes, or any other applicable state or federal law. Cal. Veh. Code § 11713.18(b).

Here, the alleged failure to provide a completed inspection report underlies Gonzales’s CLRA and UCL claims. Gonzales contends that CarMax failed to provide a “completed inspection report” before selling him a “certified” vehicle. We must decide whether the CQI certificates that CarMax provides to consumers satisfy the requirements of § 11713.18(a)(6). We hold they do not, because the CQI certificates fail to provide the actual results of the inspection for the individual components, thus rendering the inspection reports incomplete.

Because this case was removed to federal court under diversity jurisdiction, California law applies. St. Paul Fire & Marine Ins. Co. v. Weiner, 606 F.2d 864, 867 (9th Cir. 1979). When a state’s highest court has not yet ruled on an issue, we must reasonably determine the result that the highest state court would reach if it were deciding the case. Med. Lab. Mgmt. Consultants v. Am. Broad. Companies, Inc., 306 F.3d 806, 812 (9th Cir. 2002). In doing so, we may look to decisions from state appellate courts for guidance. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), modified on other grounds, 810 F.2d 1517 (9th Cir. 1987). In the present case, however, there are currently no published opinions from any California appellate courts interpreting section 117.1318(a)(6). Even so, we are not precluded from affording relief even when the state Supreme Court and state legislature fail to provide a clear rule. Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 186 (9th Cir. 1989).

When addressing questions of statutory interpretation under California law, we “[must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.” People v. Coronado, 12 Cal.4th 145, 48 Cal.Rptr.2d 77, 906 P.2d 1232, 1234 (1995) (internal quotation marks and citation omitted) (alteration in original). The California Supreme Court first looks to the language of the statute, giving effect to the words’ plain meaning; “[i]f the language is unambiguous, the plain meaning controls.” Voices of the Wetlands v. State Water Res. Control Bd., 52 Cal.4th 499, 519, 128 Cal.Rptr.3d 658, 257 P.3d 81 (2011).

A statute’s plain meaning, however, cannot be determined without reference to the context in which the words are used. See Prof'l Engineers in California Gov’t v. Brown, 229 Cal.App.4th 861, 177 Cal.Rptr.3d 567, 572 (2014). Consequently, when California courts construe the plain meaning of statutory language, they consider whether the statute contains a term of art with a specific legal or technical meaning. See In re Marriage of Davis, 61 Cal.4th 846, 189 Cal.Rptr.3d 835, 352 P.3d 401, 404 (2015) (“In considering whether this statute has a plain meaning, we recognize that the phrase ‘living separate and apart’ is a term of art.”) (internal quotation marks and citations omitted); Tex. Commerce Bank v. Garamendi, 11 Cal.App.4th 460, 14 Cal.Rptr.2d 854, 863 (1992) (“[W]ords employed in a statute dealing with legal or commercial matters are presumed to be used in their established legal or technical meanings unless otherwise clearly indicated by the statute.”); see also Ruiz v. Podolsky, 50 Cal.4th 838, 850 n.3, 114 Cal.Rptr.3d 263, 237 P.3d 584 (2010) (“[WJhen the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language.”); Prof'l Eng’rs in Cal. Gov’t v. Brown, 177 Cal.Rptr.3d at 572.

With these principles of California law in mind, we first turn to the plain meaning of the statutory language. Section 11713.18(a)(6) requires sellers of used cars to provide buyers with a completed inspection report. The statute does not define the term “inspection report,” but in the automobile industry, “inspection report” is a term of art with an established technical meaning. Consequently, we must assume that the Legislature was aware of the meaning of “inspection report” and intended this meaning to control. Cf. Prof'l Eng’rs in Cal. Gov’t v. Brown, 177 Cal.Rptr.3d at 572 (explaining that the term “ ‘personal services’ has an accepted meaning in the context of budget legislation” and construing the term in accordance with that accepted meaning).

In the automobile industry, an “inspection report” is understood to mean a report that lists the components inspected, with a space corresponding to each component in which the inspector designates whether or not that component is functional. A “completed inspection report” is one in which those spaces have been appropriately marked so as to indicate the result of the inspection. Examples of automobile “inspection reports” abound in statutes, regulations, and everyday usage in the context of the industry. For example, this technical understanding of the term is reflected in Form. OL 221A, the safety inspection report utilized by the California DMV for instructional vehicles, and in the “Vehicle Inspection Report” form used by the California Department of Transportation (“CalTrans”) under its “Enhanced Mobility of Seniors and Individuals with Disabilities Program.” Similarly, California Department of Highway Patrol Regulations and Federal Motor Carrier Safety Administration Regulations both demonstrate that “inspection report” is a technical term that means a list of components specifying whether the components are operational: both sets of regulations require “vehicle inspection reports” to “list any defect or deficiency discovered by or reported to the driver.” See C.F.R. § 396.11(a)(2)(i); Cal. Code Regs. tit. 13, § 1215(b)(1)(B), (e).

Finally, while § 11713.18 itself does not define “inspection report,” the statutes of other states demonstrate that this terrri'is consistently understood to bear a technical meaning in the automobile industry, and that under this technical understandings an inspection report must contain componeht-specific results. In Illinois, for example, a “vehicle inspection report” must contain a “component reject area” where an inspector can “[m]ark the appropriate bubble(s) for any defects found on the vehicle during ■the safety test.” Ill. Adm. Code tit. 92, § 451.150(k)(14)(A); see also N.J. Admin. Code § 13:20-43.9(a)(13) (requiring motor vehicle inspection report to include “pass/ fail result of applicable visual inspections”); Ariz. Admin. Code § R18-2-1011 (requiring a “uniquely numbered vehicle inspection report” that contains, among other things, “repair requirements; final test results; [and] repairs performed”).

The term “inspection report” in § 11713.18(a)(6) thus has a technical, industry-specific meaning. It requires commercial sellers of used cars to provide a form indicating the specific results of the inspection for the individual components inspected. The statute also requires that this “inspection report” be “completed,” and an inspection report, under the technical meaning accorded that term across the automobile industry, Is not completed without an indication of the pass/fail result with respect to each component.

To require only an unmarked list of components would disregard the requirements of an “inspection report” and render the word “completed” superfluous. Under California law, “significance should be given to every word, phrase, sentence and part of an act.” Moyer v. Workmen’s Comp. Appeals Bd., 10 Cal.3d 222, 110 Cal.Rptr. 144, 514 P.2d 1224, 1229 (1973) (in bank) (internal quotation marks and citation omitted). A construction that would make some words surplusage is to be avoided and words must be viewed in context, keeping in mind the nature and obvious purpose of the statute. Id.

The purpose, history, and public policy of the statute-further support our interpretation of “completed inspection report.” See Imperial Merch. Servs., Inc. v. Hunt, 47 Cal.4th 381, 97 Cal.Rptr.3d 464, 212 P.3d 736, 740 (2009) (“If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” (internal quotation marks and citation omitted)).

Section 11713.18(a)(6) is part of a remedial statute that must be construed liberally in favor of the class whom it was passed to protect. See Cal. Assn. of Health Facilities v. Dep’t of Health Servs., 16 Cal.4th 284, 65 Cal.Rptr.2d 872,-940 P.2d 323, 329 (1997). The California Legislature enacted the section in 2005 as part of California’s “Car Buyer’s Bill of Rights,” which, according to the author of the bill, aimed to “strengthen the protections afforded [to] California car buyers by improving laws regarding the sales, marketing, and financing of new and used vehicles.” Assembly Judiciary Comm., 2005-2006 Session, Analysis of AB-68 5 (March 1, 2005). Prior to the enactment of this bill, there was no legal standard for use of the term “certified,” despite the growing trend for dealers to “certify” used cars. Senate Judiciary Comm., 2005-2006 Session, Analysis of AB-68 5 (June 14, 2005). This bill aimed to “provide[] some assurances to consumers that they are getting what they bargained for,” especially given that cars are a “big[ ] ticket item” and “scams involving auto sales can have a devastating impact on a family’s budget and ability to function productively in society.” Assembly Judiciary Comm., 2005-2006 Session, Analysis of AB-68 5-7 (March 1, 2005) (quoting Consumers for Auto Reliability and Safety (CARS), the sponsor of the bill). The Legislature expressed concerns that “business practices engaged in by the automobile industry in general and automobile dealers in particular ... discourage price transparency, limit consumer choice and take advantage of consumer ignorance.” Senate Judiciary Comm., 2005-2006 Session, Analysis of AB-68 2 (June 14, 2005). The Car Buyer’s Bill of Rights contained a number of provisions, including a limitation on dealer commissions for arranging financing, a requirement mandating additional disclosures concerning a buyer’s credit score, and, most important for the purposes of this appeal, an inspection report that provides information to the prospective buyer of a “certified” vehicle. Id. at 1.

A principal purpose of the Car Buyer’s Bill of Rights was to promote transparency in the sale of vehicles, especially those marketed as “certified.” An interpretation of section 11713.18(a)(6) that recognized CarMax’s CQI Certificates, which are devoid of any information about the condition of the individual components inspected, as “completed inspection reports” would undermine rather than foster the statute’s goal of promoting transparency in used car sales.

When viewed in this context, the statute requires dealers to provide consumers with information about the results of the inspection for each particular component. Sellers cannot merely list components that have been inspected (as CarMax’s CQI certificate does), thereby leaving the consumer ignorant as to whether the various components satisfactorily passed the inspection. When section ■ 11713.18(a)(6) requires dealers to provide a “completed inspection report,” it guarantees consumers the right to know whether the individual components of a car have been found functional as the result of an inspection. Completed inspection reports, as that term is understood in the industry and in light of the statute’s purpose, require the provision of that information.

CarMax’s certificates do not provide any of the necessary information about the status of the individual components inspected under its “rigorous CarMax 125-point Quality Inspection.” CarMax’s CQI certificates merely guarantee that the vehicle’s overall condition satisfied its certification program and list the components inspected under that program. After receiving this certificate, the consumer knows neither the condition of the individual components nor which, or how many, components must pass the test before a vehicle is “certified.” In fact, the consumer knows nothing specific about the status of the vehicle as a whole or of the individual components because he does not know what the standards are for satisfying the CarMax certification program. The vehicle may have passed inspection, but do the brake lines function properly? The consumer does not know what it means to “pass” CarMax’s inspection: are all of the inspected components fully functional, or just a mere majority (or fewer) of the components inspected? Which components must be satisfactory, if any, before the car is deemed certified? Under CarMax’s certification program, the consumer remains uninformed, and the consumer-protection and transparency-promoting purposes of the statute remain unfulfilled.

CarMax relies heavily on the statute’s drafting history to argue that the Legislature did not intend to require car dealers to provide more than just a list of components inspected. It cites the deletion of a clause that initially appeared at the end of section 11713.18(a)(6). CarMax’s argument is unpersuasive because the statutory revision did not relate to and had no effect upon the meaning of the words “completed inspection report.” To the contrary, the deletion served an entirely different purpose: it dropped from the statute a substantive requirement while leaving unaffected the requirement relating to disclosure of information.

The statute originally stated:

Prior to sale, the dealer provides the buyer with a completed inspection report indicating all the components inspected pursuant to the vehicle certification program and certifies that all of the inspected components meet the express written standards of the vehicle certification program.

Cal. Assemb. B. No. 68, 2006-06 Regular Session (6/26/2006 draft of bill) (emphasis added).

The language in italics was deleted. The deleted language would have imposed a substantive obligation on car dealers to certify that every one of the inspected components of each of its certified vehicles met the dealer’s certification standards. This substantive requirement was deleted without altering the dealer’s obligation to provide a “completed inspection report” disclosing the results of its inspection with respect to each component. See Knapp v. CarMax Auto Superstores Cal., LLC, No. CV 14-0112-BRO (SPx), 2014 WL 10293769, at *6, 2014 U.S. Dist. LEXIS 159722, at *20 (C.D. Cal. July 21, 2014). Specifically, under the deleted language, a car dealer could not have sold a “certified” vehicle if any of its components failed to “meet the express written standards of the vehicle certification program.” After the deletion of this language, such a vehicle could be sold as certified, so long as the dealer complied with the disclosure provision of the statute and provided the results of the inspection in a “completed inspection report.” Thus, under the amended version of the statute, even if some of the various components needed repair, the dealers were not prohibited from selling the “certified” vehicle in less-than-perfect condition, so long as the buyer had been informed of the vehicle’s true condition.

In sum, interpreting the statute to require only that sellers provide a list of vehicle components inspected, without any indication of whether the individual components are functional or defective, contravenes the purpose of the statute and its plain meaning. CarMax’s generic list of car parts inspected is not only of little use to a car buyer, but it also fails to make the car buying process more transparent, because it fails to inform consumers of the material results of the inspection. Because we hold as a matter of law that CarMax’s CQI certificates are not “completed inspection reports,” we reverse the district court’s grant of summary judgment to CarMax and grant summai’y judgment to Gonzales on his CLRA and UCL claims. Although Gonzales did not himself move for summary judgment in the district court, we may grant summary judgment sua sponte to a nonmoving party if, drawing all inferences in favor of the moving party, there are no genuine issues of material fact, the moving party has “be[en] given reasonable notice that the sufficiency of.his or her claim will be in issue,” and.the nonmoving party is entitled to summary judgment as a matter of law. Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014) (internal quotation marks and citation omitted). In the present ease, although CarMax, the moving party, had reasonable notice that the question of whether the CQI certificates are “completed inspection reports” would be at issue, it failed to establish a genuine issue of material fact as to that question: OarMax’s- CQI certificates are facially insufficient as a matter of law.

Conclusion

The California Legislature adopted the Car Buyer’s Bill of Rights to protect consumers and to foster transparency in the sale of motor vehicles. Section 11713.18(a)(6) in particular exists to ensure that when dealers advertise used cars as “certified,” they must furnish a “completed inspection report” regarding all the components inspected, thereby providing the buyer with specific information about the condition of each component of his vehicle. If CarMax’s generic, and ultimately uninformative, list of components inspected were considered a “completed inspection report,” section 11713.18(a)(6)’s effectiveness in promoting transparency in the sale of certified cars would be substantially diminished. We therefore reverse the district court’s grant of summary judgment to CarMax and remand with instructions to enter summary judgment for Gonzales on his CLRA and UCL claims.

REVERSED AND REMANDED.

      . Gonzales sued Santander Consumer USA, Inc. ("Santander”) as the assignee of the purchase agreement for the vehicle. He also asserted a separate cause of action against Safeco Insurance Company of America ("Safeco”), as CarMax’s bond holder, under California Vehicle Code section 11711, a fraud provision. The parties do not dispute that Santander and Safeco are liable only to the extent that CarMax is.
      Finally, the district court denied CarMax's motion under California Civil Code section 1780(e) for attorney’s fees as the prevailing party on Gonzales’s CLRA claim. Because we reverse the district court's grant of summary judgment to CarMax on the CLRA claim, Car-Max is no longer a prevailing party under § 1780(e) and therefore has no claim for attorney's fees.

      . It remains an open question whether attorney’s fees that are anticipated but unaccrued at the time of removal or filing in federal court, such as those at issue in this case, may be included in the amount-in-controversy. Other circuits and the district courts in this circuit are divided on the issue. Compare Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998) (holding that the inclusion of anticipated but unaccrued fees that “have not been and may never be incurred” are not "in controversy” between the parties because they are too uncertain given that litigation can end through settlement at any time), with Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1340 (10th Cir. 1998) (con-eluding, without extensive discussion, that estimated attorney's fees are included). Because we conclude that the amount in controversy requirement is satisfied here regardless of whether anticipated but unaccrued attorney’s fees are considered in the calculation, we do not include the fees in our calculations and do not resolve this open question here.

      . On August 10, 2016, during the pendency of this appeal, the California Supreme Court ordered depublication of a decision by the California Court of Appeal for the Fourth District in Brooks v. CarMax Auto Superstores California, LLC, 201 Cal.Rptr.3d 138 (Ct. App. 2016). In an opinion certified for partial publication in relevant part, the Brooks court had held that CarMax’s CQI certifícate was a "completed inspection report”- under section 11713.18(a)(6). See id. at 144. That opinion may no longer be cited as precedent pursuant to Rule 8.1115 of the California Rules of Court.

      . See Cal Dep’t of Motor Vehicles, Safety Inspection Report, Vehicle Used for Instruction, .. OL 221A , (2007), https://www.dmv.ca.gov/ portal/wcm/connec1/ea268eba-b3ed-44f3-965 a-190e62aa9dcd/ol221 a.pdf ?MOD=AJPERES.

      . See Fed. Transit Admin., Vehicle Inspection Report (2008), http://dot.ca.gov/hq/MassTrans/ Docs-Pdfs/5310/5310-AgcyMon.doc.

      . Pursuant to 49 U.S.C. § 5310, states receive formula funding ‘‘for the purpose of assisting private nonprofit groups in meeting the transportation needs of older adults and people with disabilities when the transportation service provided is unavailable, insufficient, or inappropriate to meeting these needs.” See Enhanced Mobility of Seniors & Individuals with Disabilities-^Section.5310, Fed. Transit Admin., https://www.transit.dot.gov/funding/ grants/enhanced-mobility-seniors-individuals-disabilities-section-5310 (last visited Oct. 5, 2016).

      .That "inspection report” is a technical term of art with an industry-specific meaning is further supported by the fact that Lexus, Honda, General Motors, Ford, Audi, and BMW all provide inspection reports on which the inspector marks whether each individual component inspected operates satisfactorily. This list of manufacturers is intended to be illustrative and by no means exhaustive.

      . When California courts analyze legislative history, the materials they consider "can include bill analyses prepared by staff for legislative committees considering passage of the legislation in question.” People v. Taylor, 157 Cal.App.4th 433, 68 Cal.Rptr.3d 682, 685 (2007).

      . Each individual retailer of "certified” vehicles follows its own individual "certification program”; there is no uniform substantive legal standard governing these certification programs. As the California Motor Car Dealers Association (CMCDA), an association consisting of "franchised new car dealers,” explained in a hearing before the Assembly Committee on the Judiciary, the certified used car programs offered by its members are " ‘factory certified programs,’ i.e. the certification standards and requirements are set by their franchisors.” Assem. Com. on Judiciary, Analysis of Assem. Bill No. 68 (2005-2006 Reg. Sess.) Mar. 1, 2005, p. 7. Consequently, "one manufacturer/franchisor's certified used car program may differ from another,” although "they all have common eligibility elements.” Id.

      . Gonzales also argues that the CQI certificate is incomplete for another reason, found on the face of the certificate itself, which states: "We check over 125 points including (but not limited to)” those listed on the CQI certificate. In reality, CarMax inspects over 200 points during its vehicle inspections, during which a technician completes a form called the CQI/VQI Checklist. Unlike the CQI certificate, the CQI/VQI certificate does seem to "indicate all the components inspected.” See Cal. Veh. Code § 11713.18(a)(6) (emphasis added).
      CarMax argues that “components" is not defined under section 11713.18(a)(6) and that "components” has a technical meaning, which corresponds to the subheadings on the CQI certificates (such as "engine,” "brake system,” and "lighting system”). Under Car-Max’s definition of "components," the "lighting system” is a component, but the “brake lights” are not. We need not reach the issue of whether the CQI certificates in fact indicate all components inspected, as we hold these certificates are legally insufficient on other grounds.

      . Gonzales also argues that the language "prior to sale” in section 11713.18(a)(6) means that dealers must provide a completed inspection report before the sales contact is signed. CarMax argues that "prior to sale” means after the contract is signed and the buyer "has taken physical possession or delivery of the vehicle.” Because we hold that neither CarMax’s one-sided CQI certificate nor its two-sided CQI certificate qualifies as a "completed inspection report,” we need not address the meaning of “prior to sale.”


source: Caselaw Access Project

author: IKUTA, Circuit Judge: WATFORD, Circuit Judge,

license: Public Domain

text:
    Alberto MENDEZ-GARCIA, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. Mario Rivera-Baltazar, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
    No. 15-71931, No. 13-72924
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted, September 1, 2016 Pasadena, California
    Filed October 20, 2016

      Michael Joseph Codner (argued), Law Offices of Michael J. Codner, San Diego, California; Murray D. Hilts, San Diego, California; for Petitioners.
    Jane T. Schaffner (argued), Trial Attorney; Holly M. Smith and Janice K. Red-fern, Senior Litigation Counsel; Linda S. Wernery, Assistant Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
    Before: BARRY G. SILVERMAN, SANDRA S. IKUTA, and PAUL J. WATFORD, Circuit Judges.
   Concurrence by Judge WATFORD

OPINION

IKUTA, Circuit Judge:

Alberto Mendez-Garcia’s application for cancellation of removal - claimed that his removal would result in hardship to his son, who was a United States citizen under 21 years of age at the time of the application. See 8 U.S.C. § 1229b(b)(l)(D). Mario Rivera-Baltazar’s application for cancellation of removal made the same claim with respect to his son, who was likewise a citizen who had not yet turned 21. While these applications were pending, the petitioners’ sons turned 21 and no longer met the statutory definition of “child,” see 8 U.S.C. § 1101(b)(1). The Board of Immigration Appeals (BIA) held that because the petitioners’ sons were no longer children, the petitioners had failed to show that their removal would result in a hardship to a qualifying relative, and therefore they were ineligible for cancellation of removal. Mendez-Garcia and Rivera-Balta-zar petition for review of the BIA’s denial of them applications. We have jurisdiction under 8 U.S.C. § 1252, and now deny their petitions for review.

I

We begin by describing the legal background. The Immigration and Nationality Act (INA) gives the Attorney General discretion to cancel the removal of an alien who is inadmissible or deportable from the United States. 8 U.S.C. § 1229b(b)(l). In order to be eligible for this relief, the alien must meet four statutory requirements, which include establishing “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(l)(D). The INA defines “child” as “an unmarried person under twenty-one years of age” who additionally satisfies one of several criteria. Id. § 1101(b)(1).

Section 1229b(b)(l)(D) does not directly identify the point in time when the alien’s removal must result in a hardship to a qualifying relative. The section does not specify whether the alien’s removal must result in a hardship at the time the alien receives a notice to appear, at the time the alien files the cancellation of removal application, at the time the immigration judge (IJ) adjudicates the application, or at some other time. The BIA has addressed this issue in two precedential decisions. See Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 880-31 (BIA 2012); Matter of Bautista Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006). Bautista Gomez involved an alien whose parents had become lawful permanent residents (and thus qualifying relatives for purposes of § Y229b(b)(l)(D)) after the alien’s application for cancellation of removal was initially denied. After her parents .became lawful permanent residents, the alien-filed a motion to reopen. The IJ had denied the motion because the alien did not have a qualifying relative at the time the alien received the notice-to appear. Bautista Gomez, 23 I. & N. Dec. at 894. The BIA vacated the IJ’s decision. It held that “an application for relief from removal is a continuing one,” so that both the issue of good moral character, § 1229b(b)(l)(B), and “the issue of qualifying relatives” should be determined “as of the time an application -for cancellation of removal is finally decided.” Id. The BIA reasoned that “[ojtherwise, such factors as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative could not' be used as the basis for a motion to reopen to file, or to seek further consideration of, an application 'for cancellation of removal.” Id. Because the alien’s' parents were qualifying relatives at the time the IJ adjudicated the alien’s application for' cancellation of removal, the alien met thé requirement in § 1229b(b)(l)(D). Id.

The BIA subsequently applied this rule in a decision involving an alien who lost his qualifying relative before his application was adjudicated. See Isidro-Zamorano, 25 I. & N. Dec. at 830-31. Isidro-Zamorano involved an alien whose application for cancellation' of removal identified his son, a United States citizen, as his qualifying relative. The son was under 21 at the time the alien filed the application, but had turned 21 by the time the application was adjudicated. Noting its longstanding rule that an application for relief from removal is a continuing application, the BIA concluded that the alien “did not have a qualifying relative when the Immigration Judge adjudicated the application and therefore could not establish eligibility for relief.” Id. at 831. Isidro-Zamorano recognized that the case presented “a difficult situation because [the alien] has lost his eligibility for relief’, during the pen-dency of his application, while the alien in Bautista Gomez had acquired qualifying relatives during this period, and therefore benefitted from the BIA’s interpretation of § 1229b(b)(l)(D). Id. at 831 & n.2. Nevertheless, the BIA concluded that it “must, of course, interpret the provision consistently” regardless whether the interpretation benefits or harms the alien’s interests. Id. The BIA then reiterated its conclusion that the issue of qualifying relatives should be considered “at the time an application for cancellation of removal is decided,” because “[ojtherwise, factors arising subsequent to the filing of an application that may be 'favorable to the respondent’s claim, such as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative, could not be considered in determining the existence of exceptional and extremely unusual hardship.” Id. at 830-31; see, e.g., Bautista Gomez, 23 I. & N. Dec. at 894.

In addition to prescribing eligibility requirements for inadmissible or deportable aliens seeking cancellation of removal, see 8 U.S.C. § 1229b(b), the INA imposes an annual limit on the number of aliens who may receive cancellation relief. See 8 U.S.C. § 1229b(e)(l); see also 8 C.F.R. § 1240.21. Under the cap imposed by § 1229b(e)(l), “the Attorney General may not cancel the removal and adjust the status under this section ... of more than 4,000 aliens in any fiscal year.”

Even when an alien otherwise qualifies for relief and the annual number of grants has not been exhausted, “the ultimate decision whether to grant relief ... rests with the Attorney General.” Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir. 2003).

II

We next turn to the facts of these consolidated cases.

A

Alberto Mendez-Garcia is a citizen of Mexico who illegally entered the United States in 1990. Except for a brief absence in August 1991, he has resided continuously in the United States since his entry. While in the United States, Mendez-Garcia had two children; the younger was born in California on March 12, 1992. The record establishes that Mendez-Garcia had a criminal record. In 1996, Mendez-Garcia was arrested following a domestic dispute with his wife, but was not charged. In May 2008, Mendez-Garcia was again arrested for a domestic dispute and pled nolo con-tendere to one count of domestic battery, see Cal. Penal Code § 243(e)(1), and one count of false imprisonment, see id. § 236. He was sentenced to 120 days in jail.

As a result of his conviction, Mendez-Garcia came to the attention of the Department of Homeland Security, which served him with a notice to appear on January 13, 2009. At an initial hearing on January 29, 2009, Mendez-Garcia requested that the hearing be postponed; the Immigration Court set a new hearing date in February. At the February hearing, Mendez-Garcia requested another postponement; the court set a third hearing date in March, which was rescheduled to April. Before this hearing, Mendez-Garcia moved to change venue from Phoenix, Arizona, to San Francisco, California. The motion was granted, and a hearing date was set for August 6, 2009.

Mendez-Garcia moved for a continuance until September 2009, and a hearing date was eventually set for October 1, 2009. At the hearing, the IJ set a December 30, 2009, deadline to apply for cancellation of removal and scheduled a merits hearing for January 19, 2011. Mendez-Garcia timely filed his application on December 16, 2009, but the merits hearing date was reset twice for reasons not explained in the record, first to February 6, 2012, and then to March 1, 2013.

At the scheduled hearing date in March 2013, the IJ held removal proceedings in Mendez-Garcia’s case. After hearing testimony from Mendez-Garcia (who was represented by counsel) and reviewing thé record, the IJ informed the attorneys that she had all the evidence she needed to make a decision, but because the annual limit on grants of cancellation of removal, see 8 U.S.C. § 1229b(e)(l), had already been reached for the fiscal year, she was required by regulation, see 8 C.F.R. § 1240.21(c)(1), to reserve her decision until additional grants became available, which would likely be in October 2013. The IJ noted that Mendez-Garciá’s younger son, his one remaining qualifying relative, would turn 21 before that date, and invited the parties to brief the issue whether the son’s age should be counted at the time the record was closed or at the time the IJ’s decision was made. Neither party filed a legal brief on this issue.

The IJ issued an oral decision in Mendez-Garcia’s case on October 23, 2013. She noted that Mendez-Garcia’s application was “a borderline case, with regard to both good moral character and exceptional and extremely unusual hardship,” reasoning that Mendez-Garcia’s 2008 domestic-violence conviction, to the extent it was not a per se disqualifying conviction under § 1229b(b)(l)(C), “may impugn [his] good moral character,” and that the potential hardship to Mendez-Garcia’s son was “extremely poorly documented.” But because Mendez-Garcia’s son had turned 21 on March 12, 2013, the IJ concluded that she need not determine whether Mendez-Garcia had established good moral character or whether his removal would “result in exceptional and extremely unusual hardship” to his son. § 1229b(b)(l)(D). Rather, the IJ determined that under Isidro-Za-morano, she was bound by the evidence as it existed at the time of her decision, and Mendez-Garcia was not eligible for cancellation of removal because he lacked a qualifying relative.

Mendez-Garcia appealed to the BIA. The BIA dismissed his appeal on June 5, 2015, holding that the IJ properly applied Isidro-Zamorano in ruling that Mendez-Garcia’s son no longer met the statutory definition of “child” because he had turned 21 before the IJ adjudicated his application. The BIA acknowledged that the IJ had closed the record on March 1, 2013 (before Mendez-Garcia’s younger U.S. citizen child had turned 21), but concluded that this distinction from Isidro-Zamorano was not meaningful. Mendez-Garcia timely petitioned for review.

B

Mario Rivera-Baltazar is a citizen of Mexico who illegally entered the United States in 1986 and has resided in the United States continuously since then. While residing in the United States, his son was born on August 14, 1990, in California. In March 1996, Rivera-Baltazar was convicted of willful infliction of corporal injury upon a spouse or cohabitant. See Cal. Penal Code § 273.5.

Rivera-Baltazar was served with a notice to appear on January 7, 2005. On February 16, 2005, he filed a motion to change venue from Phoenix, Arizona, to San Diego, California, conceded removability, and stated his intention to seek cancellation of removal. After transferring venue, the IJ held an initial hearing on June 7, 2005. At that hearing, Rivera-Baltazar’s counsel indicated that he was not yet prepared to go forward. The IJ set a second hearing for October 5, 2005.

At the October hearing, the government argued that Rivera-Baltazar was not eligid ble for cancellation of removal because his prior conviction rendered him ineligible. In support of this argument, the government introduced a criminal history transcript from the California Department of Justice showing Rivera-Baltazar’s prior conviction. Rivera-Baltazar asked for a continuance to prepare a resppnse to that exhibit. At a third hearing, on December 13, 2005, the IJ overruled Rivera-Baltazar’s objection to the government’s exhibit, found him ineligible for cancellation of removal, and granted voluntary departure.

Riverar-Baltazar appealed to the BIA. After granting Riverar-Baltazar’s request for an extension of the briefing schedule, the BIA rejected his appeal on August 15, 2006. Rivera-Baltazar moved the BIA to reopen the case on November 2, 2006, but the BIA denied the motion on January 11, 2007. in part because the motion was untimely. Rivera-Baltazar petitioned for review of both the BIA’s merits decision and its denial of his subsequent motion to reopen.

While his petitions for review were pending before us, Rivera-Baltazar moved to extend his time to file his opening brief. We granted the extension and consolidated his petitions. Shortly thereafter, the BIA issued a precedential decision holding that convictions entered prior to September 30, 1996, did not preclude eligibility for cancellation of removal, see Matter of Gonzalez-Silva, 24 I. & N. Dec. 218 (BIA 2007). Because Rivera-Baltazar had been convicted of infliction of corporal injury in March 1996, the government moved to remand the case. We granted the unopposed motion and remanded the case to the BIA on December 6, 2007.

There the case languished until June 7, 2010, when the government filed a request for decision with the BIA. After receiving this request, the BIA set a briefing schedule, and ordered the parties to make their submissions by October 21, 2010. The government moved to remand at that time, but Rivera-Baltazar sought and received an extension until November 11, 2010. Following the government’s lead, Rivera-Bal-tazar filed an unopposed motion to remand the case to the IJ on November 4, 2010.

On remand from the BIA, the IJ held a hearing on May 26, 2011, and at that hearing set an application deadline of November 22, 2011, and the next hearing date for May 16, 2012. Rivera-Baltazar raised no objection to this schedule at the hearing, and subsequently requested an extension of the application deadline to December 22, 2011. This extension was granted, and Rivera-Baltazar timely filed his application for cancellation of removal on December 22, 2011.

On August 14, 2011, while Rivera-Balta-zar’s case was pending, his son turned 21. On May 16, 2012, the IJ issued its decision on Rivera-Baltazar’s application, holding that because Rivera-Baltazar’s son was no longer a child for .purposes of § 1229b(b)(l)(D) and he had no other qualifying relative for cancellation purposes, he was not eligible for relief. The IJ denied his application for cancellation of removal and granted voluntary departure. ■

Rivera-Baltazar appealed to the BIA, which dismissed his appeal on August 13, 2013. As in Mendez-Garcia’s case, the BIA held that the IJ properly applied Isidro-Zamorano in ruling that Rivera-Baltazar’s son no longer met the statutory definition of “child” at the time of the IJ’s decision. Rivera-Baltazar timely petitioned for review.

III

We* start with the petitioners’ argument that the IJ and BIA erred in holding they were not eligible for cancellation of removal under § 1229b(b)(l) because the BIA’s interpretation of that statute in Isidro-Zcmorano was erroneous and inapplicable to their cases. We review legal questions de noyo, but when “there is ‘binding agency precedent on-point’ in the form of á published BIA opinion,” we consider whether Chevron deference is appropriate. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 813, 815 (9th Cir. 2016) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). “Under the familiar Chevron framework, we first ask “whether Congress has directly spoken to the precise question at issue.’ ” Id. at 815 (quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778). If Congress has. directly spoken to the precise question at issue, we “must give effect to the unambiguously expressed intent of Congress.” Garcia-Mendez v. Lynch, 788 F.3d 1058, 1061 (9th Cir. 2015) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778), If Congress has not so spoken, we proceed to step two, at which we will uphold the agency’s interpretation as long as it is “based on a permissible construction of the statute.” Valenzuela Gallardo, 818 F.3d at 815.

A

In addressing the petitioners’ argument that the BIA’s interpretation of § 1229b(b)(l)(D) is erroneous, we start with the plain language of the statute. In order to be eligible for cancellation of removal, the alien must meet the four different requirements set forth in § 1229b(b)(l)(A) to (D). Section 1229b(b)(l)(A) expressly includes a time frame: it requires the alien to establish that the alien “has been physically present in the United States for a continuous period of not less than 10 years' immediately preceding the date” of the application for cancellation of removal. However, the requirement at issue here, § 1229b(b)(l)(D), includes no such time frame. It says only that the alien must establish “that removal would result in exceptional arid extremely unusual hardship to the alien’s spouse, parent; or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence”; it does not specify that the alien must meet the requirement as of a certain time. Because the statute does not directly address the question before us here, we turn to step two of Chevron.

At step two, we consider whether the BIA’s interpretation is “based on a permissible construction of the statute.” Valenzuelo, Gallardo, 818 F.3d at 815. At this step, we conclude that the BIA could reasonably determine that § 1229b(b)(1)(D) requires an alien seeking cancellation to establish hardship to a qualifying relative as of the time the IJ adjudicates the alien’s application. The BIA’s interpretation is consistent with the language of the statute. Moreover, the BIA could reasonably determine that because Congress did not specify a time frame in § 1229b(b)(1)(D), as it did in § 1229b(b)(1)(A), Congress intended the alien to make the showing of a hardship to a qualifying relative at the time of the IJ’s decision.

In opposing this conclusion, Mendez-Garcia and Rivera-Baltazar contend that the BIA’s interpretation is not reasonable because it is inconsistent with § 1229b(b)(l)(A), which requires a showing that the alien “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.” The petitioners argue that if an application for cancellation of removal were a continuing application, as the BIA concluded, then an alien should continue to accrue physical presence until the application was adjudicated. According to the petitioners, because § 1229b(b)(l)(A) requires the IJ to consider a specified time frame (ending at the application date) for purposes of determining physical presence, the application for cancellation of removal is not a continuing application, and the IJ should likewise determine whether the alien has a qualifying relative at a prior time. This argument fails, because the requirement that an alien show continuous presence in the United States for “10 years immediately preceding the date” of an application for cancellation of removal, § 1229b(b)(l)(A), is distinct from the hardship requirement of § 1229b(b)(l)(D). “[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001) (en banc) (alteration in original). The presence of a timing requirement in § 1229b(b)(l)(A)—and its corresponding absence in § 1229b(b)(l)(D)— does not foreclose the BIA’s interpretation, but rather bolsters it.

Because the BIA offered a reasonable interpretation of § 1229b, the IJ in each case did not err in considering whether Mendez-Garcia and Rivera-Baltazar had a qualifying relative for purposes of the hardship requirement as of the time of the decision on the application for cancellation of removal.

B

Mendez-Garcia and Rivera-Bal-tazar also argue that the BIA’s interpretation of § 1229b(b)(l)(D) does not apply to their cases because their cases are factually distinguishable from Isidro-Zamorano. We reject this argument. When an agency validly interprets a statute, that interpretation carries the “force of law.” See Garcia v. Holder, 659 F.3d 1261, 1266 (9th Cir. 2011). Statutory interpretations offered by an agency through adjudication are not limited to the factual circumstances out of which that adjudication arose. “[A]n agency ‘is not precluded from announcing new principles in an adjudicative proceeding and ... the choice between rulemaking and adjudication lies in the first instance within the [agency’s] discretion.’ ” Miguel-Miguel v. Gonzales, 500 F.3d 941, 950 (9th Cir. 2007) (omission and second alteration in original) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974)). Even assuming that Isidro-Zamorano and the precedents on which it relies are factually distinguishable from the situations here, the BIA’s interpretation of the hardship requirement in § 1229b(b)(1)(D) would nonetheless be binding. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (“[T]he agency remains the authoritative interpreter (within the limits of reason) of [ambiguous] statutes.”).

C

Finally, Mendez-Garcia and Rivera-Baltazar argue that the BIA erred in interpreting the word “child” in § 1229b(b)(l)(D) according to the statutory definition of “child” in § 1101(b)(1), rather than using the dictionary definition of child as “son or daughter.” We disagree. “[W]hen a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.” Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013) (quoting Stenberg v. Carhart, 530 U.S. 914, 942, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000)). Because 8 U.S.C. § 1101(b)(1) includes an “explicit definition” of the term “child,” the statutory definition controls. See, e.g., Moreno-Morante v. Gonzales, 490 F.3d 1172, 1178 (9th Cir. 2007) (“[Cancellation of removal is appropriate only if the detailed statutory definition of ‘child’ is met.”).

IV

Mendez-Garcia and Rivera-Bal-tazar next argue that the decisionmaking processes in their cases violated their due process rights. “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). “A full and fair hearing is one of the due process rights afforded to aliens in deportation proceedings.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). An alien’s right to procedural due process is violated “only if [1] the proceeding was ‘so fundamentally unfair that the alien was prevented from reasonably presenting his case,’ ” and [2] •the alien proves that “the alleged violation prejudiced his or her interests.” Id. (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006)). While aliens are entitled to a procedurally fair hearing, “aliens have no fundamental right to discretionary relief from removal for purposes of due process and equal protection” because such relief is “a privilege created by Congress.” Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Denial of such discretionary relief “cannot violate a substantive interest protected by the Due Process clause.” Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003). Because “[c]ancellation of removal is a form of discretionary relief which does not give rise to a ‘substantive interest protected by the Due Process Clause,’ ” Hyuk Joon Lim v. Holder, 710 F.3d 1074, 1076 (9th Cir. 2013) (quoting Munoz, 339 F.3d at 954), its denial likewise does not deprive an applicant of a constitutionally protected liberty or property interest.

The petitioners argue that their due process rights were violated because the application of Isidro-Zamorano coupled with the failure of the agency to adjudicate their cancellation of removal applications before their sons became 21 was procedurally unfair and deprived them of a substantive interest, their “settled expectations” in receiving relief.- We consider their arguments in turn.

A

The petitioners first argue that the proceedings were proeedurally unfair because they were deprived of the opportunity to have their applications for cancellation of removal adjudicated at a time when they would have had a meaningful opportunity for relief. Mendez-Garcia argues that because he had qualifying relatives at the time he filed his application for cancellation of removal in 2009, the fact that his application was not adjudicated until October 2013 “prevented [him] from reasonably' presenting his relief application.” Similarly, Rivera-Baltazar argues that his son had five years of eligibility as a qualifying relative remaining at the time he applied'for cancellation of removal, and that the lack of “an expedited review” in 2011 on remand from the BIA was “fundamentally unfair” and amounted to an “inequitable process.”

We disagree. First, procedural delays, such as routine processing delays, do not deprive aliens of a substantive liberty or property interest unless the aliens have a “legitimate claim of entitlement” to have their applications adjudicated within a specified time. Ruiz-Diaz v. United States, 703 F.3d 483, 487 (9th Cir. 2012) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). In Ruiz-Diaz, we considered a regulation that barred a category of aliens, including religious workers, from filing an application for adjustment of status under 8 U.S.C. § 1255(a) concurrently with a visa petition from a sponsoring employer. This category of aliens had to wait for approval of their employers’ petitions before they could seek adjustment of status. Because of the delays inherent in acquiring approval of a visa petition, aliens subject to this regulation could be deprived of relief if their visas expired before their adjustment applications were adjudicated. A group of aliens lawfully present in the United States on five-year religious-worker visas brought suit against the government, asserting that the regulation, coupled with the processing delays, violated their due process rights. Id. We acknowledged that the delays “often mean that their five-year visas have expired before” their applications could be considered, which “makes it more difficult for plaintiffs to obtain” the relief they sought. Id. at 487-88. Nonetheless, we held that the aliens could not claim that their due process rights were violated because they had not identified a “‘legitimate claim of entitlement’ to have the petitions approved before their visas expire.” Id. at 487 (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701); see also Mudric v. Attorney Gen., 469 F.3d 94, 99 (3d Cir. 2006) (holding that an eight-year delay in the processing of an alien’s application for asylum did not violate his due process rights “because, [the alien] simply had no due process entitlement to the wholly discretionary benefits of which he and his mother were allegedly deprived, much less a constitutional right to have them doled out as quickly as he desired”). Here, Mendez-Garcia and Rivera Baltazar likewise lack any legitimate claim of entitlement to having their applications adjudicated before their sons turned 21, No statute or regulation requires the government to take action on their applications within a set period, nor does cancellation of removal “give rise to a ‘substantive interest protected by the Due Process Clause.’ ” Hyuk Joon Lim, 710 F.3d at 1076 (quoting Munoz, 339 F.3d at 954). Therefore, the denial of their cancellation of removal applications due to the lack of a qualifying relative at the time of the IJ’s final decision did not deprive them of a substantive right.

Nor did the agency’s delays violate Mendez-Garcia’s and Rivera-Baltazar’s procedural due process rights by preventing them from reasonably presenting their cases at a meaningful time. Cf. Singh v. Reno, 182 F.3d 504 (7th Cir. 1999). In Singh, the Immigration and Naturalization Service (INS) ‘Continued to drag its feet” in setting hearing dates and repeatedly canceled hearing dates over a. four-year period, despite the alien’s diligent efforts to have his hearing recalendared. Id. at 507. Only after Congress enacted a statute that retroactively eliminated any possibility of relief for that alien did the INS set. a hearing date and summarily conclude that he was deportable. Id. at 510. While acknowledging that an alien generally “has no substantive right to have a claim heard at a particular time,” the Seventh Circuit held that under “the very unusual circumstance” when the alien, rather than the agency, pressed for a speedier resolution of his status, the alien had sufficiently raised a claim that his due process rights had been violated to allow him the “exceptional procedure” of “direct review of constitutional claims in the court of appeals.” Id.

Even assuming that extraordinary delays caused by the agency could give rise to a constitutional claim, there were no such “very unusual circumstancefc]” in these cases. Neither Mendez-Garcia nor Rivera-Baltazar contend that the delays in their cases result from anything other than “routine processing times,” Ruiz-Diaz, 703 F.3d at 487, and neither took action to increase the likelihood that their applications would be adjudicated before their sons turned 21, cf. Singh, 182 F.3d at 511 (finding “of crucial significance” that “it was [the alien] who pressed to have the matter resolved”). Indeed, Mendez-Garcia sought to postpone the adjudication of his application three times before his younger U.S. citizen child turned 21. Even when the IJ brought to Mendez-Garcia’s attention the imminence of his child’s twenty-first birthday and offered him the opportunity to submit supplemental briefing on the issue, he did not do so. Similarly, Rivera-Baltazar did not act when we remanded his case to the BIA in-2007; the BIA ultimately took action only after the government (not Rivera-Baltazar) filed a request for decision. Rather than seeking to expedite the adjudication of his application, Rivera-Baltazar sought to postpone it four times before his child turned 21. We conclude that the decisionmaking process here did not violate Mendez-Garcia’s and Rivera-Baltazar’s due'process rights.

B

Mendez-Garcia and Rivera-Baltazar also argue that their due process rights were violated because they had “settled expectations” that they could apply for and receive cancellation of removal, and these settled expectations were upset by the change in the status of their qualifying relatives. In making this argument, Mendez-Garcia and Rivera-Baltazar analogize to INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which considered the retroactive effect of section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. (IIRI-RA), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-587-3009-597.

In order to analyze the strength of this analogy, we briefly summarize the relevant facts and conclusion in St. Cyr. As the Supreme Court explained, section 304 eliminated 8 U.S.C. § 1182(c), which gave the Attorney General broad discretion to waive deportation of aliens who had prior criminal convictions, and replaced it with § 1229b, which accorded much narrower discretion to the Attorney General to cancel removal of certain aliens, but not of aliens who had been convicted of an aggravated felony, see § 1229b(b)(1)(C). Prior to IIRIRA’s effective date, the alien in St. Cyr had pled guilty to sale of a controlled substance. He became deportable as a result of, the conviction, but he also preserved his eligibility for waiver of deportation relief under § 1182(c) by pleading guilty. 533 U.S. at 293, 121 S.Ct. 2271. IIRIRA, which took effect before his application for § 1182(c) relief was adjudicated, id. made his crime an aggravated felony and thus made him statutorily ineligible for cancellation of removal, id. at 297, 121 S.Ct. 2271. The alien argued that because he had pled guilty in reliance on pre-IIRIRA law, applying IIRIRA to deny his application for relief was impermissibly retroactive. Id. at 314-15, 121 S.Ct. 2271. The Supreme Court agreed. Applying the two-step analysis of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Court first held that IIRIRA did not contain an “unambiguous direction” demanding retroactive application, St. Cyr, 533 U.S. at 316, 320, 121 S.Ct. 2271. It then determined that because aliens who had pled guilty “waive[d] several of their constitutional rights” in exchange for preserving their eligibility for § 1182(c) relief, applying IIRIRA retroactively to deny those aliens the possibility of relief for which they had bargained would impermissibly impair “vested rights acquired under existing laws ... in respect to transactions or considerations already past.” Id. at 321-22, 121 S.Ct. 2271.

As this summary makes clear, St. Cyr is not applicable here. Landgraf emphasized that “[t]he Due Process Clause ... protects the interests in fair notice and repose that may be compromised by retroactive legislation,” 511 U.S. at 266, 114 S.Ct. 1483, and St. Cyr accordingly discusses “settled expectations” as they related to retroactive application of IIRIRA, see 533 U.S. at 323-24, 121 S.Ct. 2271, Mendez-Garcia and Rivera-Baltazar do not point to any legislative change; there was no amendment to the cancellation of removal statute or other legislation that could raise due process concerns under Landgraf and St. Cyr. Whereas St. Cyr indicated that it is sometimes impermissible to apply new law to “transactions or considerations already past,” id. at 321, 121 S.Ct. 2271, nothing in St. Cyr suggests that it is impermissible to apply unchanged law to a current factual situation as it has changed or developed over time. Further, St. Cyr made clear that “settled expectations” result only when an alien gives up “valuable legal rights.” Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002) (quoting St. Cyr, 533 U.S. at 321, 121 S.Ct. 2271). Mendez-Garcia and Rivera-Baltazar gave up no such legal rights in applying for cancellation of removal. Cf. id. (finding that alien who had turned herself into the INS “gave up only her ability to continue living illegally and undetected in the United States,” and not any valuable legal rights). Nor can Mendez-Garcia and Rivera-Baltazar claim they lacked notice that their children would grow up. Accordingly, we reject Mendez-Garcia and Rivera-Baltazar's claim that they have a due process right to have their applications adjudicated in light of historical facts.

C

Mendez-Garcia raises one additional argument that his due process rights were violated by the proceedings. According to Mendez-Garcia, the application of the statutory cap on grants of cancellation of removal, § 1229b(e), violated his due process right to a “fundamentally fair proceeding” because it was unfair for the IJ to close his proceedings, despite having everything she needed to make a decision, and such unfairness was prejudicial in that his son ceased being a qualifying relative soon after.

To the extent Mendez-Garcia is challenging Congress’s authority to enact a statutory cap on relief from deportation, we reject the argument. “ ‘[0]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). “Congress has plenary power to regulate immigration and the conditions on which aliens remain in the United States.” Korab v. Fink, 797 F.3d 572, 574 (9th Cir. 2014). When Congress acts in-the immigration context, the resulting legislation need “meet only 'the (unexacting) standard of rationally advancing some legitimate governmental purpose.’ ” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 788 (9th Cir. 2014) (en banc) (quoting Flores, 507 U.S. at 306, 113 S.Ct. 1439). A statutory cap on grants of cancellation of removal is rational; Congress could have concluded, for example, that immigration benefits should generally be reserved for aliens who are not otherwise removable. Moreover, limiting the number of otherwise-removable aliens who are permitted to remain in the United States is a legitimate governmental purpose, one that the statutory cap rationally advances.

Nor did the application of the cap to Mendez-Garcia violate his due pro-cess rights. In order to assert a due process challenge to such a condition of relief, an alien must establish a “qualifying liberty interest of which he was deprived.” Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th Cir. 2002) (citing Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Mendez-Garcia has no such liberty interest. Discretionary immigration relief gives rise to no “substantive interest protected by the Due Process Clause.” Hyuk Joon Lim, 710 F.3d at 1076. Nor did Congress provide aliens with such an interest. When cancellation of removal was established as a form of relief under IIRIRA, Congress circumscribed its availability not only by specifying the four requirements that an alien must satisfy but also by including the statutory cap. See IIRIRA § 304(a), Pub. L. No. 104-208, 110 Stat. at 3009-594, 3009-596. Thus, “the very liberty interest [Mendez-Garcia] asserts to have been taken away” by the statutory cap, his ability to receive cancellation of removal, “was granted by [the] same statute” that instituted the cap— IIRIRA section 304. Hernandez-Mezquita, 293 F.3d at 1165. Though the statutory cap may have deprived Mendez-Garcia of the ability to receive cancellation of removal relief, the right to receive that relief unrestricted by the cap was “a right he never had.” Id. This due process challenge, too, fails.

PETITIONS DENIED.

WATFORD, Circuit Judge,

concurring:

I join the court’s opinion because it correctly resolves the two cases before us. I write separately to emphasize that, for me at least, the dispositive factor in denying relief on the petitioners’ procedural due process claim is their lack of diligence in pressing for expedited review.

The petitiohers’ due process claim arises from delays in the processing of their applications for cancellation of removal based on hardship to their U.S. citizen children. See 8 U.S.C. § 1229b(b)(l)(D). Delay can be fatal to these applications because, under the rule adopted by the Board of Immigration Appeals (BIA), an applicant loses eligibility for this relief if his child turns 21 before the agency has made a decision on the application. See Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 831 (BIA 2012). The consequences for those who lose their eligibility are severe: An applicant granted cancellation of removal attains the status of a lawful permanent resident, a status he keeps even after his U.S. citizen child turns 21, whereas an applicant denied such relief is subject to removal from the United States and often barred from returning for ten years; See 8 U.S.C. §§ 1182(a)(9)(B)(i)(II), 1229b(b)(l).

As the court acknowledges, an arbitrary and unjustified delay in processing an application for cancellation of removal can serve as the basis for a successful due process claim, provided the applicant has been diligent throughout in urging the agency to reach a decision before his child turns 21. The petitioners before us cannot establish a violation of their due process rights because they were not diligent in pressing for expedited review of their applications. Had they been diligent in doing so, however, they might well have been entitled to prevail.

Take Mario Rivera-Baltazar’s case. The immigration judge who initially ruled on his application denied it on an erroneous legal ground, and our court subsequently remanded the case to the BIA for further proceedings. At that point, Rivera-Balta-zar’s U.S. citizen son was 17 years old, so there was plenty óf time left for his application to be considered. Because the immigration judge did not reach the merits of Rivera-Baltazar’s application during the initial round of proceedings, his case necessarily had to be remanded back to the immigration judge. Yet the BIA sat on his case for three years and did nothing. Unlike my colleagues, I do not think we can characterize that as a routine processing delay (particularly for such a ministerial task), and as far as the record discloses there was absolutely no justification for it.

The problem for Rivera-Baltazar is that he did nothing during that entire three-year period of delay to try to expedite review of his application. As the court notes, it was the government’s action after nearly three years of unexplained delay that finally prompted the BIA to do what it should have done right away: remand the case back to the immigration judge. Had Rivera-Baltazar been diligent in urging the BIA to remand his case forthwith, and had he lost his eligibility for cancellation of removal due to the unjustified delay, what more could be required to assert a meritorious due process claim?

The protections of the Due Process Clause are vital in cases like these because there is enormous potential for arbitrariness and hence unfairness under the rule adopted by the BIA. Under that rule, an applicant’s eligibility for relief can be foreclosed by administrative delays that are wholly outside the applicant’s control and that have nothing to do with the merits of the application. The potential for arbitrariness is heightened in the cancellation of removal context because a person eligible for such relief may not affirmatively apply for it—she may request it only after the government decides to initiate removal proceedings by serving her with a notice to appear. So from the outset the applicant cannot control how old her U.S. citizen child may be at the time’ her application is filed, and she of course has no ability to stop the clock from ticking as her child approaches the age of 21. When an applicant does everything in her power to ensure that the agency can adjudicate her application for cancellation of removal while her U.S. citizen child is still under 21, the agency cannot simply allow the application to languish for years without justification .such that the child ages out before a decision can be rendered.

Due process guarantees “a full and fair hearing” in immigration proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). A hearing for relief surely cannot be considered full and fair if the adjudicator arbitrarily and unjustifiably withholds a decision until a time when the relief is no longer available. See Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999).

      . These petitions are consolidated for purposes of disposition.

      . 8 U.S.C. § 1229b(b) provides, in pertinent part:
      (b) Cancellation of removal and, adjustment of status for certain nonpermanent residents
      (1) In general The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
      (A)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;
      (B) has been a person of good moral character during such period;
      (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
      (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

      . Although § 1229b(b)(l)(B) requires the alien to establish that the alien "has been a person of good moral character during such period,” the BIA has determined that the IJ should determine the issue of good moral character as of the time the IJ renders a decision on the application for cancellation of removal. See Matter of Ortega-Cabrera, 23 I. & N. Dec 793 (BIA 2005). We applied this rule in Castillo-Cruz v. Holder, 581 F.3d 1154 (9th Cir. 2009). But see Aragon-Salazar v. Holder, 769 F.3d 699, 704, 706 n.4 (9th Cir. 2014) (stating that it was not "bound by this unreasoned conclusion” in Castillo-Cruz, and holding that identical language in section 203(1)(A)(iii) of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997), "clearly refers back to the period of time for which continuous physical presence is required”).

      .. In a letter submitted the day before oral argument under Federal Rule of Appellate Procedure 28(j), Mendez-Garcia raised the additional argument that the government’s implementation of the statutory cap violates his equal protection rights because it treats non-detained applicants for cancellation of removal and detained applicants differently. Because Mendez-Garcia did not raise this argument in his opening brief, we deem this issue waived. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011), We accordingly deny Mendez-Garcia's pending motion for leave to exceed the word limit on Rule 28(j) letters as moot.