Vasquez De Alcantar v. Holder
2011 U.S. App. LEXIS 11179
| 9th Cir. | 2011Background
- Vasquez entered the United States without inspection in 1989 and remained continuously for over seven years.
- Her husband, an LPR who later became a citizen, filed an I-130 on her behalf in 1998 to assist her in obtaining LPR status.
- An approved I-130 in 1998 allowed Vasquez to apply for adjustment of status (I-485), and she was granted LPR status in May 2001.
- Vasquez attempted to assist an undocumented minor in 2006, triggering removal proceedings under INA § 212(a)(6)(E)(i).
- At issue is whether Vasquez’s seven-year continuous-residence requirement for cancellation of removal could be met by an approved I-130 petition, i.e., whether she was admitted in any status.
- The BIA held that an approved I-130 plus pending I-485 constitutes a pending admission, not admission in any status; Vasquez did not meet seven years prior to the offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an approved I-130 constitutes admission in any status | Vasquez argues approval of I-130 grants admission in any status. | BIA contends approval does not equal admission; only adjustment approval or FUP may apply. | Approved I-130 does not equal admission in any status. |
| Whether filing for adjustment of status confers admission | Vasquez contends filing/approval of I-485 amounts to admission. | Court holds filing/approval does not change status; admission requires inspection/authorization. | Filing/approval of I-130/I-485 does not confer admission. |
| Whether the Family Unity Program (FUP) framework applies to I-130 beneficiaries | Vasquez argues I-130 beneficiaries are effectively FUP-like and admitted in any status. | Garcia-Quintero distinguishes FUP beneficiaries from I-130 beneficiaries; no admission equivalence. | FUP is not applicable to I-130 beneficiaries; not admitted in any status under I-130 alone. |
Key Cases Cited
- Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (held FUP beneficiaries can be admitted in any status; distinction from I-130 beneficiaries)
- Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (defined admission and authority to interpret ambiguous INA provisions under Chevron)
- Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) (defines 'admitted' as entry after inspection/authorization; dates of admission trigger periods)
- Latu v. United States, 479 F.3d 1153 (9th Cir. 2007) (adjustment of status filing does not change illegal status for other contexts)
- Ngongo v. Ashcroft, 397 F.3d 821 (9th Cir. 2005) (approval of I-130 does not entitle to adjustment or status change)
- Hing Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) (further define 'admitted' under 1101(a)(13)(A) as related to procedural entry)