Lezama-Garcia v. Holder
666 F.3d 518
| 9th Cir. | 2011Background
- Lezama-Gareia, Nicaragua national, in the U.S. since 1993, eligible for NACARA §202 adjustment if conditions met.
- He applied for NACARA §202 relief before April 1, 2000, with continuous U.S. presence and no criminal history.
- In March 2004 he inadvertently drove into Mexico, attempted to return, and was denied entry as an arriving alien.
- NACARA §202(c)(2) stays removal while an adjustment application is pending; the stay is contingent on ongoing eligibility.
- An IJ and the BIA held his NACARA §202 application abandoned under 8 C.F.R. §245.13(k)(l) after departure without advance parole.
- The court grants the petition, remands for proceedings consistent with NACARA §202, holding abandonment does not apply when departure was undesired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether undesired departure abates NACARA §202 status | Lezama argues abandonment requires deliberate departure; absence was involuntary. | Government argues any departure without advance parole triggers abandonment per §245.13(k)(l). | Abandonment not triggered; status remains pending. |
| Proper interpretation of 8 C.F.R. §245.13(k)(l) in context | Desire-to-travel limitation must be read with the regulation's full context. | Regulation unambiguously abandons status upon departure without advance parole. | Regulation read in context limits abandonment to desired travel; not applied to undesired departures. |
| Effect of NACARA §202(c)(2) stay on removal | §202(c)(2) bars removal while NACARA relief is pending. | Removal allowed if status not properly adjudicated or denied. | Attorney General shall not order removal while §202 relief is pending. |
| Whether Lezama remains eligible to adjust status if considered an arriving alien | Even as arriving alien, NACARA eligibility remains under §202(a). | Abandonment would bar adjustment; nonetheless, other grounds may apply. | Even if arriving alien, Lezama remains eligible to apply or adjust under NACARA §202. |
Key Cases Cited
- Masnauskas v. Gonzales, 432 F.3d 1067 (9th Cir. 2005) (NACARA §202 adoption and purpose; eligibility standards discussed)
- Frech v. U.S. Attorney Gen., 491 F.3d 1277 (11th Cir. 2007) (NACARA §202 context and eligibility considerations)
- Aguilera-Medina v. INS, 137 F.3d 1401 (9th Cir. 1998) (Fleuti doctrine extension to certain residents; relevance to absence impact)
- Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) (IIRIRA changes to intent inquiry; deference to BIA interpretation acknowledged)
- Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (Entry/admission framework post-IIRIRA; abandonment implications)