587 F. App'x 43
4th Cir.2014Background
- Chavez, a native and citizen of El Salvador, entered the United States in July 1989 without inspection.
- In 1992 she was granted Temporary Protective Status (TPS) due to El Salvador's armed conflict and remained in the United States.
- Chavez adjusted status to Legal Permanent Resident (LPR) in 2006 and later traveled to El Salvador and reentered the U.S. on November 19, 2006.
- On December 4, 2007, Chavez was convicted of petit larceny under Virginia law, creating removal proceedings for a crime involving moral turpitude.
- A stop-time rule and the statutory requirement to have resided in the U.S. continuously for 7 years after admission were central to the IJ’s and BIA’s determinations, with the BIA holding Chavez was not admitted until November 2006 when she returned with LPR status, making her ineligible for cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chavez was admitted in any status for purposes of §1229b(a)(2). | Chavez argues she was admitted when TPS was granted in 1992. | The government contends TPS does not constitute an admission. | No; TPS is not an admission for purposes of §1229b(a)(2). |
| Whether §1254a(e) allows counting TPS years toward continuous residence. | Chavez argues TPS years can count if extreme hardship exists. | §1254a(e) harmonizes with §1229b(a)(2)–TPS not an admission unless invoked under the statute. | Statutes read harmoniously; TPS years may not count as admission unless the residency requirement is satisfied. |
Key Cases Cited
- Bracamontes v. Holder, 675 F.3d 380 (4th Cir. 2012) (defined admission as lawful entry after inspection; excludes adjustment of status)
- Nelson v. Att’y Gen., 685 F.3d 318 (3d Cir. 2012) (TPS can be granted after admission in another status; supports harmony of statutes)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. 2000) (instructions to interpret statutes as a coherent regulatory scheme)