Angel Posos-Sanchez v. Merrick Garland
3 F.4th 1176
| 9th Cir. | 2021Background
- Posos, a Mexican national, entered the U.S. without inspection circa 1980 and later received temporary-resident status under IRCA; his temporary card was issued May 4, 1988 and expired November 30, 1990.
- On September 24, 1990, Border Patrol stopped Posos at an interior San Clemente checkpoint; he presented the temporary-resident card and was released, but officials did not grant written or verbal permission to enter.
- INS later denied Posos’s temporary-resident application in 1993; he remained in the U.S. until being removed in 2010 or 2011.
- Posos attempted reentry March 9, 2011, was detained, and DHS served an NTA on May 2, 2011 that omitted the date/time of his removal hearing; later hearing notices supplied that missing information.
- Before the IJ and BIA Posos argued (1) he had been "admitted" in 1990 and could adjust status, and (2) he was eligible for voluntary departure because the defective NTA never stopped his accrual of physical presence. The IJ and BIA denied relief on both grounds.
- The Ninth Circuit affirmed that Posos was not "admitted" for adjustment/removability purposes but reversed the voluntary-departure denial: because the NTA did not comply with §1229(a), it never stopped accrual of physical presence under §1229c(b)(1)(A), making Posos eligible for voluntary departure if other criteria are met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Posos was "admitted" to the U.S. at the 1990 San Clemente checkpoint, making him ineligible for removal/eligible to adjust status | Posos: Border Patrol’s 1990 inspection and release after showing his temporary-resident card constituted an admission | Government (Garland/DHS): No admission because (1) admission requires inspection and authorization at a port of entry and (2) any IRCA-based fiction was later undone by denial of status | Held: No admission. Inspection/release at an interior checkpoint is not an admission under §1101(a)(13)(A); removal and ineligibility to adjust affirmed |
| Whether a deficient NTA (omitting hearing date/time) served May 2, 2011 stopped accrual of physical presence for voluntary departure under §1229c(b)(1)(A) | Posos: The May 2 NTA omitted statutorily required items, so he continued to accrue physical presence and had >1 year when removal ordered | Government: The combination of the NTA and later hearing notices satisfied notice and stopped accrual | Held: The NTA lacked the complete §1229(a) contents and thus did not stop accrual. Under Pereira and Niz-Chavez principles, the single §1229(a) NTA must contain listed information; Posos accrued >1 year and may be eligible for voluntary departure |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (an NTA must comply with §1229(a) to trigger statutory stop-time consequences)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (a §1229(a) notice to appear must be a single document containing the statutory information to effectuate service)
- United States v. Hernandez-Arias, 757 F.3d 874 (9th Cir. 2014) (discussion of the statutory definition of "admission" and IRCA-related admissions)
- Negrete-Ramirez v. Holder, 741 F.3d 1047 (9th Cir. 2014) (explaining that "entry"/"admission" refers to coming from abroad at a port of entry)
- Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc) (interpretation of admission/entry concepts under the INA)
- Gomez v. Lynch, 831 F.3d 652 (5th Cir. 2016) (distinguishing factual admissions during lawful-status periods from IRCA statutory fictions)