Guevara v. Holder
2011 U.S. App. LEXIS 11174
| 9th Cir. | 2011Background
- Guevara entered the United States without inspection in 1987 and lived with his LPR daughter and US citizen grandchildren.
- He applied for adjustment of status to LPR under 8 U.S.C. § 1255(i) in Oct. 1997 after his I-130 approval and received employment authorization on Jan. 8, 1998.
- Advance parole was denied in Sept. 1999, requiring Guevara to remain in the U.S. pending adjustment.
- Guevara's application for adjustment was approved on Oct. 17, 2000, making him an LPR; removal proceedings began Sept. 17, 2006 for aiding an unlawful entry.
- The IJ found Guevara eligible for cancellation of removal under § 240A based on seven years of continuous residence, counting the 1998–2000 work authorization, treating it as admission.
- BIA reversed, holding that employment authorization is not admission in any status and is not equivalent to FUP; Guevara was not eligible for cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does employment authorization count as 'admission in any status'? | Guevara argues employment authorization equates to admission under Garcia-Quintero. | Holder argues employment authorization is not admission and is not equivalent to FUP. | No; employment authorization does not constitute admission in any status. |
| Is employment authorization equivalent to FUP participation for cancellation eligibility? | Guevara asserts similarity to FUP admission benefits warrants counting as admission. | BIA and majority distinguish employment authorization from FUP, with different eligibility and benefits. | Not equivalent; FUP-like benefits do not render employment authorization an admission. |
| Should the term 'unauthorized alien' inform admission status for purposes of cancellation? | Argues statutory phrase and regulatory language imply status conferred by employment authorization. | Employment authorization does not confer admission status; it merely permits work while pending status. | No; 'unauthorized alien' language does not indicate admission. |
Key Cases Cited
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (admission in any status for FUP beneficiaries; used as comparative framework)
- Vasquez de Alcantar v. Holder, 645 F.3d 1097 (9th Cir. 2011) (limits and comparisons between FUP and adjustment applicants)
- In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999) (BIA recognizing broader notion of 'admitted' beyond statutory entry)
- Matter of Koljenovic, 25 I. & N. Dec. 219 (BIA 2010) (implications on admission concepts)
- Matter of Blancas-Lara, 23 I. & N. Dec. 458 (BIA 2002) (nonimmigrant with brief lawful entry can count toward seven-year residency)
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (holding FUP beneficiaries are admitted; employment authorization not per se admission)