Cite as 25 I&N Dec. 296 (BIA 2010) Interim Decision #3689
296
Matter of David REZA-Murillo, Respondent
File A070 794 179 – El Paso, Texas
Decided July 30, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A grant of Family Unity Program benefits does not constitute an “admission” to the
United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(13)(A) (2006), for purposes of establishing that an alien has accrued the
requisite 7-year period of continuous residence after having been “admitted in any status”
to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C.
§ 1229b(a)(2) (2006).
FOR RESPONDENT: Rebecca B. Robledo, Esquire, El Paso, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael Pleters, Assistant Chief
Counsel
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated July 10, 2009, an Immigration Judge found the
respondent removable under section 212(a)(2)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an alien who was
convicted of a crime involving moral turpitude. The Immigration Judge also
pretermitted the respondent’s application for cancellation of removal under
section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006), finding that he was
ineligible because he had not resided continuously in the United States for the
requisite 7 years after having been “admitted in any status” under
section 240A(a)(2). The respondent has appealed from that decision. The
appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was granted
lawful permanent resident status on August 14, 2001. In November 2001,
he committed the charged criminal offense, which stopped the accrual of his
time in continuous residence pursuant to section 240A(d)(1) of the Act.Cite as 25 I&N Dec. 296 (BIA 2010) Interim Decision #3689
1 Under the FUP, which was established in 1990, qualifying spouses and children of certain
temporary or permanent resident aliens and certain naturalized United States citizens could
remain and work in the United States under a 2-year grant of “voluntary departure,” which
could be extended. See 8 C.F.R. §§ 236.12, 236.15 (2010); see also Immigration Act
of 1990, Pub. L. No. 101-649, § 301, 104 Stat. 4978, 5029-30.
297
In proceedings before the Immigration Judge, the respondent conceded
removability and applied for cancellation of removal. He argued that the
period during which he “resided in the United States continuously . . . after
having been admitted in any status” under section 240A(a)(2) of the Act did
not begin in 2001 when he became a lawful permanent resident, but rather in
1994 when he was granted benefits under the Family Unity Program (“FUP”).1
However, the Immigration Judge held that a grant of FUP benefits does not
constitute an “admission” to the United States and that the respondent was
therefore ineligible for relief because he was not “admitted” until 2001.
We agree.
II. ANALYSIS
The Act defines the term “admitted” as “the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer.”
Section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006) (emphasis
added); see also Matter of Blancas, 23 I&N Dec. 458 (BIA 2002) (holding that
an alien admitted to the United States as a nonimmigrant at the border has been
“admitted in any status” for purposes of section 240A(a)(2) of the Act).
However, to establish eligibility for FUP benefits, the respondent was
necessarily present in the United States, as required by 8 C.F.R. § 236.12(a)(1)
(2010), which provides, in pertinent part as follows:
An alien who is not a lawful permanent resident is eligible to apply for benefits
under the Family Unity Program if he or she establishes:
(1) That he or she entered the United States before May 5, 1988 . . . or as of
December 1, 1988 . . . and has been continuously residing in the United States since
that date . . . .
Therefore, the respondent’s grant of FUP benefits did not itself involve
his “entry . . . into the United States after inspection and authorization
by an immigration officer” under section 101(a)(13)(A) of the Act.
The grant of FUP benefits may very well have accorded the respondent “any
status,” as the United States Court of Appeals for the Ninth Circuit held
in Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), and
as we suggested in Matter of Rotimi, 24 I&N Dec. 567, 576-77 (BIA 2008).
Nonetheless, with regard to the question whether the grant of FUP benefitsCite as 25 I&N Dec. 296 (BIA 2010) Interim Decision #3689
2 Although the Fifth Circuit’s decision in Martinez v. Mukasey, 519 F.3d 532, 544
(5th Cir. 2008), was not addressed by the Immigration Judge or raised by the parties
(continued…)
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constitutes an “admission,” we find that the Ninth Circuit’s analysis
in Garcia-Quintero, which is not binding authority in this jurisdiction, is not
persuasive. The Ninth Circuit determined that the definition of the term
“admission” in section 101(a)(13)(A) of the Act should not be applied in these
circumstances because: (1) in Matter of Rosas, 22 I&N Dec. 616 (BIA 1999),
we deemed an alien who had adjusted her status to that of a lawful permanent
resident to have been “admitted” for purposes of determining whether she was
convicted of an aggravated felony “after admission”; (2) the Ninth Circuit
imputed a lawful permanent resident “admission” from a parent to a minor
child in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005); and
(3) the Ninth Circuit viewed the strict application of section 101(a)(13)(A)
as contrary to congressional intent. Garcia-Quintero v. Gonzales, 455 F.3d
at 1015-16. We disagree and find that the relevant language of section
101(a)(13)(A) of the Act controls in the context of this case. See generally
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).
Significantly, our decision in Matter of Rosas, 22 I&N Dec. 616, was
supported by the definition of the term “lawfully admitted for permanent
residence” in section 101(a)(20) of the Act, as well as by other provisions
of the Act. It was also predicated on the absurdity of treating aliens who
entered the United States without inspection prior to being granted lawful
permanent resident status more like aliens without any valid immigration
status than like permanent resident aliens who entered the United States after
inspection. Id. at 621-23; see also section 101(a)(20) of the Act. For example,
an alien who adjusted to lawful permanent resident status after entering the
United States without inspection would, if not deemed admitted, remain
susceptible to removal under section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
§ 1182(a)(6)(A)(i) (2006), as an alien present in the United States without
having been admitted or paroled. See Matter of Rosas, 22 I&N Dec. at 621.
Moreover, an alien who resided in the United States for decades as a lawful
permanent resident after initially entering without inspection would
be ineligible for cancellation of removal under section 240A(a) of the Act,
although an alien who accrued just 5 years in lawful permanent resident status
after being inspected upon entry 2 years prior to obtaining that status would
be eligible for relief. Id. at 623. Pursuant to our holding in Matter of Rosas,
an alien who entered without inspection prior to adjusting to lawful permanent
resident status will typically become eligible for cancellation of removal under
section 240A(a) after 7 years of continuous residence following the grant
of that status and is not removable under section 212(a)(6)(A)(i) of the Act.2Cite as 25 I&N Dec. 296 (BIA 2010) Interim Decision #3689
(…continued)
on appeal, we note its conclusion, in the context of an alien’s eligibility for a waiver
of inadmissibility under section 212(h) of the Act, that “post-entry adjustment of status” does
not constitute an “admission.” The application of that analysis, which was, in part, based
on the principle that any lingering ambiguities should be construed in the alien’s favor,
would inure to the respondent’s detriment and would not change the outcome of this case.
299
In contrast to the language of the sections of the Act discussed in Matter
of Rosas, the only mention of the terms “admitted” or “admission” in the FUP
regulations pertains to aliens who travel outside the United States and return
in accordance with a grant of advance authorization, when they must
“be inspected and admitted in the same immigration status [they] had at the
time of departure.” 8 C.F.R. § 236.16 (2010) (emphasis added). Further, FUP
benefits may not be terminated because of an alien’s inadmissibility under
section 212(a)(6)(A)(i) of the Act for being present in the United States
without having been admitted or paroled. See 8 C.F.R. § 236.18(a)(4) (2010).
The Act also does not identify a form of relief unique to FUP beneficiaries,
as it does for aliens granted lawful permanent resident status in the context
of cancellation of removal under section 240A(a) of the Act. Thus, following
the relevant language of section 101(a)(13)(A) by declining to treat a grant
of FUP benefits as an “admission” is consistent with the statutory scheme and
does not create absurd or bizarre results.
Furthermore, we are not persuaded to depart from the relevant language
of the “admission” definition in section 101(a)(13)(A) of the Act with respect
to aliens granted FUP benefits by the holdings of Cuevas-Gaspar v. Gonzales,
430 F.3d 1013, and Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir.
2009), which allow minor children to impute lawful permanent resident status
and residence from their parents, as discussed in prior precedent decisions that
we apply outside the Ninth Circuit. See Matter of Ramirez-Vargas, 24 I&N
Dec. 599, 600-01 (BIA 2008) (declining to follow Cuevas-Gaspar v. Gonzales,
430 F.3d 1013); Matter of Escobar, 24 I&N Dec. 231, 233-35 (BIA 2007)
(same). The Act’s favorable treatment of aliens granted lawful permanent
resident status does not suggest that aliens granted any lesser immigration
status should be deemed to have been “admitted” by virtue of obtaining that
lesser status while present in the United States. Such a conclusion would
effectively redact the words “entry of the alien into the United States after”
from the definition of “admission” in section 101(a)(13)(A) of the Act.
Thus, we decline to deem a grant of FUP benefits to be an “admission.”
See generally Diaz v. Ashcroft, 108 F. App’x 972 (5th Cir. 2004) (unpublished
disposition). Such a conclusion would extend our narrowly tailored holding
in Matter of Rosas, 22 I&N Dec. 616, in the absence of the compelling reasons
presented in that case, which include the unique statutory language pertainingCite as 25 I&N Dec. 296 (BIA 2010) Interim Decision #3689
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to aliens “lawfully admitted for permanent residence” and the absurdity
of finding long-time lawful permanent resident aliens who entered without
inspection prior to being granted that status to be ineligible for cancellation
of removal under section 240A(a) of the Act. Lawful permanent residents who
entered without inspection and were granted FUP benefits will still generally
become eligible for cancellation of removal after 7 years of continuous
residence in lawful permanent resident status, absent an intervening stop-time
event such as the charged crime involving moral turpitude in this case. See
sections 240A(a), (d)(1) of the Act. Accordingly, the respondent’s appeal will
be dismissed.
ORDER: The appeal is dismissed.