Samuel Gomez v. Loretta Lynch
2016 U.S. App. LEXIS 14416
| 5th Cir. | 2016Background
- Samuel Gomez, El Salvador citizen, entered the U.S. without inspection in the 1980s, later obtained temporary resident status under the 1986 amnesty and a temporary resident card in 1992.
- Gomez traveled to El Salvador in 1993 and, on return, was processed through a Houston immigration checkpoint; the government later located records confirming that 1993 inspection and admission.
- His TPS expired in 2009; in 2010 he was charged as present without admission and sought adjustment of status under 8 U.S.C. § 1255(a).
- The IJ and BIA held Gomez ineligible for adjustment, concluding either he had never been lawfully admitted or that 8 C.F.R. § 245a.2(u)(4) nullified any admission when his temporary-resident status terminated.
- After this court initially affirmed but then vacated its opinion (the government discovered 1993 admission records), the parties submitted supplemental briefing on whether § 245a.2(u)(4) undoes a factual port-of-entry admission.
Issues
| Issue | Plaintiff's Argument (Gomez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Auer deference applies to the BIA's nonprecedential interpretation of 8 C.F.R. § 245a.2(u)(4) | Agency deserves deference only if interpretation reflects considered judgment; here the BIA has been inconsistent so deference is unwarranted | Auer (or at least Skidmore) deference should apply to the BIA's interpretation | Regulation is ambiguous, but Auer deference is inappropriate because the BIA's prior inconsistent rulings show its current view is not a settled, considered judgment; court reviews de novo |
| Whether the phrase "return such alien to the unlawful status held prior to the adjustment" undoes a factual port-of-entry admission obtained while the alien held temporary resident status | "Return to unlawful status" means only loss of permission to remain and does not erase a historical, factual admission at a port of entry | The regulation renders the admission legally ineffective, i.e., expiration of temporary status nullifies any admission tied to that status | The court holds admission and status are distinct; unlawful status does not include a subcategory of "present without admission," so the regulation does not undo a factual admission |
| Application to Gomez: Is he eligible for adjustment of status / removable as "present without admission"? | He was in fact admitted in 1993; § 245a.2(u)(4) does not negate that admission, so he remains eligible to pursue adjustment | Even if admitted in 1993, the regulation returned him to an unlawful status that renders admission ineffective and supports removal | Because Gomez was factually admitted and the regulation does not erase that fact, the petition for review is granted and the case is remanded |
Key Cases Cited
- Rodriguez-Avalos v. Holder, 788 F.3d 444 (5th Cir. 2015) (standard of review for BIA legal conclusions and discussion of deference)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretation of its own regulations)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (Auer deference unwarranted when agency interpretation conflicts with prior positions)
- Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir. 2006) (applying Auer to informal agency pronouncements)
- United States v. Flores, 404 F.3d 320 (5th Cir. 2005) (unlawful status despite statutory protections can exist)
- Tula Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015) (discussion of the term "status" in immigration law)
- United States v. Hernandez-Arias, 757 F.3d 874 (9th Cir. 2014) (distinguishing deemed admissions by operation of law and holding such deemed admissions expire when the underlying status terminates)