Garcia v. Holder
2011 U.S. App. LEXIS 22093
| 9th Cir. | 2011Background
- Garcia, born in Mexico in 1984, entered the United States illegally in 1992 and entered foster care in California.
- In 1994 the state court ordered placement and recommended filing for Special Immigrant Juvenile Status (SIJS) and the related petition for adjustment of status.
- In 2000 Garcia was approved for SIJS and legal permanent resident status after a lengthy process.
- In 2005–2006 Garcia committed two theft-related offenses, resulting in a Notice to Appear and removal proceedings.
- Garcia sought cancellation of removal, which requires seven years of continuous presence after an admission in any status.
- The BIA held SIJS parole does not count as admission; Garcia was deemed statutorily ineligible for cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does SIJS-based parole count as an admission in any status for §1229b(a)(2)? | Garcia argues SIJS parole is an admission in any status under §1229b(a)(2). | Government argues parole under §1255(h) is not an admission and cannot satisfy seven years. | Yes; SIJS parole qualifies as admission in any status. |
| Should SIJS parole be treated as an admission similar to other DHS actions (e.g., FUP) for purposes of cancellation? | Garcia analogizes to FUP where admission-like status was created by Congress. | DHS argues SIJS parole is not akin to FUP or I-130 and does not create admission. | SIJS parole is analogous to FUP-like admission and counts toward seven years. |
Key Cases Cited
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (acceptance into FUP can render an alien admitted in any status)
- Vasquez de Alcantar v. Holder, 645 F.3d 1097 (9th Cir. 2011) (I-130 petitions and employment authorization do not create admission in any status)
- Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (parental/admission concepts for seven years; limits on imputed admission)
- Guevara v. Holder, 649 F.3d 1086 (9th Cir. 2011) (employment authorization does not create alternative admission)
- Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007) (distinct treatment of conditional parole statutes in immigration context)