Eduardo Enriquez v. William BarrEduardo Enriquez v. William Barr
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Per Curiam Opinion; Concurrence by Judge Murguia
The panel unanimously concludes this case is suitable for decision without oral argument. See
SUMMARY2
Immigration
Denying Eduardo Enriquez‘s petition for review of a decision of the Board of Immigration Appeals, the panel held that Enriquez was not “admitted” within the meaning of the cancellation of removal statute,
In 2000, Enriquez‘s mother self-petitioned under VAWA, filing a Form I-360 Petition for Special Immigrant and listing Enriquez as her dependent child. The petition was approved the same year, and Enriquez was granted deferred action and later received work authorization. In 2008, Enriquez adjusted to lawful permanent resident (LPR) status.
After a conviction in 2012, Enriquez was charged as removable for having committed a crime involving moral turpitude within five years of admission. He conceded removability, an immigration judge denied his application for cancellation of removal, and the BIA affirmed.
For cancellation of removal, as relevant here, a lawful permanent resident must have “resided in the United States continuously for 7 years after having been admitted in any status.”
The panel explained that the court generally defines “admitted” by reference to the Immigration and Nationality Act (INA)‘s statutory definition,
The panel further explained that, in Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per curiam), the court deferred to a BIA decision concluding that participation in the Family Unity Program does not constitute an admission for purposes of cancellation of removal. In Medina-Nunez, as the panel observed, the court also narrowed the definition of “admitted” under
The panel concluded that neither the approval of the Form I-360 in 2000, nor Enriquez‘s subsequent receipt of deferred action and work authorization, satisfies the statutory definition of “admission.” The panel explained that the court has previously held that the approval of a comparable Form I-130 petition does not constitute an admission. Further, the panel concluded that the grant of deferred action and work authorization are benefits similar to, or less substantial than, the benefits contemplated by the Family Unity Program in Medina-Nunez.
Therefore, the panel concluded that Enriquez was not “admitted in any status” until 2008, when he became an LPR, and therefore, he was unable to satisfy the requirement of seven years of continuous residence after admission.
Concurring, Judge Murguia agreed that, under the court‘s precedent, Enriquez could not be deemed “admitted in any status,” but wrote separately to underscore that the case law is inconsistent with the statutory context and undermines VAWA‘s purpose of expanding immigration relief to undocumented immigrants who experience domestic abuse.
COUNSEL
Gabriella Navarro-Busch, Ventura, California, for Petitioner.
Terri J. Scadron, Assistant Director; Corey L. Farrell, Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
PER CURIAM:
Eduardo Enriquez petitions for review of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal and affirming the Immigration Judge‘s (IJ) denial of his application for cancellation of removal. Because we are bound by our decision in Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015) (per curiam), we hold that Enriquez was not “admitted” under
I.
Enriquez is a native and citizen of Mexico who entered the United States without inspection in 1997 at the age of four. In 2000, Enriquez‘s mother self-petitioned under VAWA, filing a Form I-360 Petition for Special Immigrant and listing Enriquez as her dependent child. The Immigration and Naturalization Service (INS) approved the petition and granted Enriquez deferred action as a derivative beneficiary of his mother‘s self-petition. Enriquez received work authorization in 2003, and adjusted to lawful permanent resident (LPR) status in 2008. Four years later, in 2012, Enriquez was convicted of attempting to dissuade a witness in violation of
Enriquez conceded the allegations against him but applied for cancellation of removal under
II.
A.
We have jurisdiction pursuant to
We generally define “admitted” by reference to the Immigration and Nationality Act (INA)‘s statutory definition in
By contrast, in Reza-Murillo the BIA found no comparable “absurd or bizarre results” in applying the statutory definition of “admission” to participation in the Family Unity Program. Id. at 298–99. Participants in the Family Unity Program receive a temporary grant of voluntary departure, limited ability to travel outside of the United States, and work authorization. Id. at 297 n.1, 299 (citing
In 2015, we afforded deference under Brand X3 to the BIA‘s decision in Reza-Murillo, narrowed our definition of “admitted” under
are not “admitted” and thus ineligible for cancellation
B.
Enriquez‘s period of continuous residence stopped accruing when he committed a crime of moral turpitude in 2012. See
Enriquez does not argue that he was admitted in 1997, when he physically entered the United States without inspection. It is also undisputed that Enriquez was admitted when he adjusted his status to LPR in 2008, but he cannot satisfy the seven-year continuous residence requirement
with this date of admission. Instead, Enriquez contends that he was “admitted” through agency approval of his mother‘s Form I-360 VAWA self-petition and his subsequent receipt of deferred action and work authorization in 2003. In light of our controlling precedent, we must reject this argument.
An individual may file a self-petition under VAWA if he has suffered battery or extreme cruelty at the hands of an abusive LPR spouse. See
Neither the approval of the Form I-360 listing Enriquez as a derivative beneficiary, nor his subsequent receipt of deferred action and work authorization, satisfies the statutory definition of “admission” under the INA. We have previously held that the approval of a comparable Form I-130 petition, which authorizes the petitioner to apply for adjustment of status but is not itself an adjustment, does not constitute an admission satisfying the requirements for cancellation of removal. See Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101–02 (9th Cir. 2011). Like the approval of a Form I-130, approval of a Form I-360 Petition for Special Immigrant is not itself an adjustment of status, but is only “one step in the application for adjustment of status.” Id. at 1103. Thus, simple approval of the petition cannot be the equivalent of inspection and authorization to enter and remain in the United States under our precedent. Id.
As a derivative beneficiary of his mother‘s VAWA self-petition, Enriquez also received deferred action and work
C.
Enriquez urges us to stray from
III.
Because Enriquez was not “admitted in any status” under our controlling precedent until 2008, and committed a crime of moral turpitude in 2012, he is unable to satisfy the requirement of seven years of continuous residence after admission for eligibility for cancellation of removal under
PETITION DENIED.
MURGUIA, Circuit Judge, concurring:
I agree that, under our precedent, Enriquez cannot be deemed “admitted in any status” under the cancellation of removal statute,
I.
Enriquez, a twenty-seven-year-old native and citizen of Mexico, is a derivative beneficiary of VAWA—a landmark federal statute enacted to empower battered immigrant women and their dependent children with lawful immigration status to facilitate their escape from domestic violence. See Hernandez v. Ashcroft, 345 F.3d 824, 841 (9th Cir. 2003). Like many VAWA beneficiaries, Enriquez was undocumented for several years before he finally adjusted his status to legal permanent resident (“LPR“). Enriquez physically entered the United States without inspection in 1997, when he was four years old. His childhood in the United States was unfortunately disrupted by his abusive LPR stepfather, who beat Enriquez from a young age, abused Enriquez‘s mother, and sexually assaulted Enriquez‘s sister. To aid her escape from such abuse, Enriquez‘s mother filed a self-petition under VAWA in 2000, listing Enriquez and his sister as derivative beneficiaries. That same year, the government approved the petition. Enriquez in turn received deferred action and work authorization, and he was authorized to apply to adjust his undocumented status to LPR. In 2008—eight years after his mother‘s VAWA self-petition was approved and almost twenty years after he originally entered the country—Enriquez finally became an LPR.4
II.
Congress enacted VAWA “to eliminate barriers to women leaving abusive relationships.” Hernandez, 345 F.3d at 841 (citing H.R. Rep. No. 103-395, at 25 (1994) (noting that the goal of the bill was “to combat violence and crimes against women” and “permit[] battered immigrant women to leave their batterers without fearing deportation.“)). At its core, the Act sought “to eliminate immigration laws preventing battered spouses and children from leaving abusive relationships or from seeking help from law enforcement because they were afraid that they would be deported or that their abusers would withdraw sponsorship for a particular immigration benefit.” Matter of A-M-, 25 I. & N. Dec. 66, 74 (BIA 2009) (citing H.R. Rep. No. 106-939, at 56, 111–12 (2000)).
A critical component of VAWA is the self-petitioning process at issue in Enriquez‘s case. Congress recognized that, prior to VAWA, only United States citizen or LPR spouses were allowed to petition the
The VAWA self-petitioning process is twofold: first, the individual must file a petition (Form I-360); and second, if the petition is approved, the individual may then apply to adjust his or her status to LPR (Form I-485). See
In sum, Congress created a program whereby undocumented survivors of domestic violence are placed on a path toward United States citizenship without having to rely on abusive partners for family-based immigration sponsorship. For all practical purposes, VAWA aims to bring these vulnerable immigrants out of the shadows and into the documented population in an effort to address an underlying factor enabling their victimization: their immigration status.
III.
We are asked to decide in this appeal whether Enriquez was “admitted in any status” under
To qualify for cancellation of removal, an LPR must have: (1) “been an [LPR] for not less than 5 years“; (2) “resided in the United States continuously for 7 years after having been admitted in any status“; and (3) “not been convicted of any aggravated felony.”
Enriquez‘s argument that approval of his mother‘s VAWA self-petition constitutes an “admission” under
It is worth emphasizing that we deferred to this narrow construction by the BIA without much explanation, noting only that:
It [was] reasonable for the BIA to apply the statutory definition of the term “admitted.” Nothing in the statutory text, the BIA‘s cases, or our own cases precludes the BIA from relying on that definition.
Medina-Nunez, 788 F.3d at 1105. Without more, we abrogated our long-standing precedent in Garcia-Quintero v. Gonzales, where we held that the term “admitted” is not limited to a “physical entry and inspection.” 455 F.3d 1006, 1016 (9th Cir. 2006). We then concluded that admission into
the Family Unity Program (“FUP“)—a program which, similar to VAWA, allows undocumented immigrants within our borders to obtain temporary relief from deportation and work authorization while they await adjustment of their immigration status to LPR, see
A strict application of the port-of-entry definition of “admitted” to the cancellation of removal statute is inconsistent with the statutory context and creates a loophole that Congress could not have possibly intended. Although we generally follow an “explicit definition” when Congress provides one, we do not do so when it is “not possible in a particular context.” Negrete-Ramirez, 741 F.3d at 1053 (quoting Stenberg v. Carhart, 530 U.S. 914, 942 (2000)); see, e.g., Ramirez, 852 F.3d at 961 (rejecting statutory definition because “the statutory context so dictates“). Indeed, it is axiomatic that when we construe a statute, our “analysis of the statutory language requires an assessment of the effect of these terms on the meaning of the provision as a whole.” Negrete-Ramirez, 741 F.3d at 1051.
The cancellation of removal statute applicable to LPRs sets forth two separate and distinct requirements related to
the individual‘s “admission.” The applicant must “(1) ha[ve] been ... lawfully admitted for permanent residence for not less than 5 years,” and “(2) ha[ve] resided in the United States continuously for 7 years after having been admitted in any status.”
Indeed, applying the port-of-entry definition to
in the INA, see Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1135 (9th Cir. 2001) (rejecting port-of-entry definition because otherwise the law would create “a loophole in the removal laws for [immigrants] who enter the country without inspection“); see also In Re Rosas-Ramirez, 22 I. & N. Dec. 616, 623 (BIA 1999) (same). Here, too, a departure is necessary to avoid a result contrary to Congress‘s objective “to forestall harsh results” for VAWA recipients. Lopez-Birrueta v. Holder, 633 F.3d 1211, 1216 (9th Cir. 2011) (quoting Hernandez, 345 F.3d at 840); see Kokoszka v. Belford, 417 U.S. 642, 650 (1974) (noting that statutory interpretation involves looking at a provision in the context of the entire scheme, including “statutes on the same subject” and the “objects and policy of the law” (quoting Brown v. Duchesne, 60 U.S. 183, 194 (1856))); Ramirez, 852 F.3d at 963 (interpreting the term “admission” under the adjustment of status statute “consistent with the purpose of [Temporary Protected Status (‘TPS‘)]” and rejecting the port-of-entry definition under
Recognizing “the absurdity of finding long-time [LPRs] who entered without inspection” to be ineligible for relief under the LPR cancellation statute, the BIA in Matter of Reza-Murillo crafted a “compelling” exception to the applicability of the port-of-entry definition: LPRs who entered without inspection may be considered “admitted” as of the day they obtained LPR status. 25 I. & N. Dec. 296, 299–300 (BIA 2010) (relying also on “the unique statutory language” pertaining to LPRs). We have also carved out this exception in our law. See, e.g., Fuentes, 837 F.3d at 967 (“Fuentes, who entered the United States without inspection in 1996, was admitted in 2004, when he was granted [LPR] status.“).
But this “compelling” exception is not much of an exception at all. Limiting the term “admitted” in
In light of this statutory scheme, I would hold that Enriquez was “admitted” and began accruing continuous presence under the LPR cancellation of removal statute when the government inspected and approved his mother‘s VAWA self-petition. The statute demands this result because an approved petition is the step that precedes attaining LPR status in the VAWA context, and for all practical purposes, approval of such petition mirrors an inspection at a physical port-of-entry. A petition is only approved after the government “investigat[es] the facts of [the] case” and “determines that the facts stated in the petition are true.”
petitioners are therefore undoubtedly inspected and authorized by immigration authorities when their petitions are approved, even if they do not physically re-enter the country with inspection. See Ramirez, 852 F.3d at 960 (concluding that TPS beneficiary was “admitted” under adjustment of status statute, in part because “in practice, . . . the application and approval process for securing TPS shares many of the main attributes of the usual ‘admission’ process for nonimmigrants“); but see Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1102–03 (9th Cir. 2011) (holding that a petitioner who entered the country without inspection but whose family-based visa petition was processed and approved was not “admitted” under the cancellation statute).
Finally, it is worth noting that to advance its position in the context of this case, the government does not dispute the BIA‘s conclusion that deferred action is not an admission because it is merely “an informal administrative stay of deportation exercised by the [government] in its discretion.” Compare Dep‘t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1903 (2020).
Even if deferred action alone is not an admission, Enriquez correctly points out that an approved VAWA self-petition confers much more than a favorable exercise of prosecutorial discretion. Through VAWA—as with FUP—Congress categorically conferred a critical immigration benefit to its intended beneficiaries: the ability to adjust their undocumented immigration status to LPR. Under the INA, undocumented persons who entered the country without inspection are generally “inadmissible” and therefore ineligible for adjustment of status to LPR. Compare
IV.
In sum, the BIA‘s exceedingly limited reading of “admission” is unreasonable in light of the entire statutory scheme, particularly in the context of VAWA and its remedial objective. Our acquiescence to this construction has led to an absurd and unjust result that is inconsistent with the realities of our immigration system and congressional intent. But because “[b]inding authority must be followed unless and until overruled by a body competent to do so,” Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1211 (9th Cir. 2016) (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)), I agree that Enriquez‘s petition must be denied in light of our precedent.