26 I. & N. Dec. 603
BIA2015Background
- Respondent (Mexican national) entered without inspection in 1996; granted Family Unity Program (FUP) benefits in 2002 and adjusted to LPR on April 25, 2005.
- Convicted in 2012 (offense committed June 14, 2011) of possession of methamphetamine under Cal. Health & Safety Code § 11377(a); DHS served NTA charging removability as a controlled-substance conviction.
- Immigration Judge found removability established by conviction record, denied cancellation of removal because respondent had not accrued 7 years of continuous residence "after having been admitted in any status," and denied voluntary departure.
- Respondent argued FUP grant in 2002 constituted an "admission" so continuous-residence began then; alternatively challenged removal and denial of voluntary departure.
- BIA affirmed removability and held that a FUP benefit grant does not constitute an "admission" under INA § 101(a)(13)(A); applied Matter of Reza and declined to follow Ninth Circuit precedent Garcia-Quintero nationwide.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent is removable based on state controlled-substance conviction | Respondent: conviction records do not establish a controlled-substance violation | DHS: minute order and complaint show guilty plea to possession of methamphetamine | Removability affirmed — records establish conviction for controlled-substance offense (removable) |
| Whether grant of FUP in 2002 constitutes an "admission" so continuous residence began in 2002 for § 240A(a)(2) cancellation | Respondent: FUP confers an immigration "status" and thus qualifies as admission (relying on Garcia-Quintero) | DHS/BIA: statutory definition of "admission" limits to lawful entry after inspection; FUP is not an admission | Held for DHS/BIA: FUP does not constitute an "admission"; continuous residence begins at adjustment of status in 2005; Matter of Reza reaffirmed nationwide |
| Whether BIA must follow Ninth Circuit's Garcia-Quintero in this circuit | Respondent: Garcia-Quintero controls in Ninth Circuit and supports FUP = admission | BIA: agency precedent (Matter of Reza) is reasonable and entitled to Chevron deference; Garcia-Quintero not compelled by unambiguous statute | BIA applied Chevron framework and declined to follow Garcia-Quintero, applying its own published precedent nationally |
| Whether respondent was eligible for voluntary departure | Respondent: challenged denial of voluntary departure | DHS: 2012 controlled-substance conviction bars showing 5 years of good moral character, rendering ineligible | Denial affirmed: conviction makes respondent ineligible for voluntary departure under INA § 240B(b)(1)(B) |
Key Cases Cited
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (held a FUP grant constituted being “admitted in any status” for cancellation eligibility)
- Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014) (upheld consideration of charging documents and minute orders to determine conviction elements)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (established two-step framework for judicial review of agency statutory interpretations)
- Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (a prior judicial construction of a statute can be displaced by a permissible agency construction under Chevron in certain circumstances)
- Guevara v. Holder, 649 F.3d 1086 (9th Cir. 2011) (employment authorization pending adjustment does not equal "admission in any status")
- Vasquez de Alcantar v. Holder, 645 F.3d 1097 (9th Cir. 2011) (approval of a visa petition does not constitute an "admission in any status")