455 F.3d 1006 (9th Cir. 2006), 03-73930, Garcia-Quintero v. Gonzales

Docket Nº:03-73930.
Citation:455 F.3d 1006
Party Name:Pedro GARCIA-QUINTERO, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
Case Date:July 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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455 F.3d 1006 (9th Cir. 2006)

Pedro GARCIA-QUINTERO, Petitioner,


Alberto R. GONZALES, Attorney General, Respondent.

No. 03-73930.

United States Court of Appeals, Ninth Circuit.

July 24, 2006

Argued and Submitted May 9, 2006.

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[Copyrighted Material Omitted]

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Gary Finn, Indio, California, for the petitioner-appellant.

Peter D. Keisler, Linda S. Wendtland, and Shelley R. Goad, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent-appellee.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A70-743-609.

Before: Michael Daly Hawkins, Susan P. Graber, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:

Petitioner Pedro Garcia-Quintero petitions for review of the Board of Immigration Appeals's ("BIA" or "Board") order that found him removable for alien smuggling, and ineligible for cancellation of removal due to his failure to accrue seven years of continuous residence in the United States after being "admitted in any status." At the removal hearing, Garcia-Quintero's counsel attempted to assert the Fifth Amendment's right against self-incrimination on behalf of Garcia-Quintero. The immigration judge ("IJ"), however, required Garcia-Quintero to assert his Fifth Amendment right himself, but allowed his attorney to advise him about when to exercise this right. After invoking the Fifth Amendment several times, Garcia-Quintero admitted that he tried to help his goddaughter unlawfully enter the United States. On the basis of this testimony, the IJ ordered Garcia-Quintero removed for having engaged in alien smuggling.

Garcia-Quintero appealed the IJ's ruling to the BIA. In addition to challenging the IJ's procedure for invoking the Fifth Amendment, Garcia-Quintero moved to remand his case so the IJ could consider his application for cancellation of removal. In an unpublished order, the BIA rejected his appeal, and also denied his motion because

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it determined that he failed to satisfy the seven-year continuous residence requirement for cancellation of removal. In its ruling, the BIA concluded that Garcia-Quintero's status as a beneficiary of the Family Unity Program ("FUP") did not render him "admitted in any status" for the purposes of cancellation of removal.

The BIA's decision denying the motion to remand involves an interpretation of the interplay between the FUP and the cancellation of removal statute, 8 U.S.C. § 1229b. As a preliminary matter, we hold that the BIA's unpublished non-precedential decision does not merit Chevron deference. The decision, however, is eligible for some deference under Skid-more. As for the merits of Garcia-Quintero's claim for cancellation of removal, he raises an issue of first impression in this circuit as well as in most of our sister circuits1—whether his acceptance into the Family Unity Program renders him "admitted in any status" for the purposes of cancellation of removal. We hold that it does, and therefore determine that Garcia-Quintero is eligible for cancellation of removal.

Finally, we examine the merits of Garcia-Quintero's claim that the IJ violated his Fifth Amendment rights when the IJ required him to personally invoke his right against self-incrimination, and therefore the removal proceeding should have been terminated. We conclude that on the record here, where the IJ allowed Garcia-Quintero's counsel to advise him when to invoke the privilege, and where Garcia-Quintero had successfully done so in response to several questions, the IJ did not violate his Fifth Amendment rights, and thus the removal proceeding was proper. We therefore grant the petition in part and remand, and deny in part.

I. Background

Garcia-Quintero, a citizen of Mexico, entered the United States unlawfully in 1986, and has resided here for the last twenty years. He is married to a lawful permanent resident ("LPR"), and has four LPR children and several United States citizen grandchildren. He has no criminal record. In 1993, Garcia-Quintero was accepted into the FUP.

The Family Unity Program was created to implement certain provisions of the Immigration Act of 1990, Pub. L. No. 101-649, § 301, 101 Stat. 4978 ("IMMACT 90"), which is set out as a note in 8 U.S.C. § 1255a. The regulations governing the FUP are contained in 8 C.F.R. § 236. The FUP permits qualified alien spouses or unmarried children of legalized aliens, who entered the United States before 1988 and have continuously resided in the United States since that time, to apply for the benefits of the program, which include protection from deportation and authorization to work in the United States.2

As the name implies, the FUP is designed to help families stay together while the beneficiaries adjust to LPR status. FUP beneficiaries are granted a two-year period of protection from deportation, which the regulation terms "voluntary departure."

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8 C.F.R. § 236.15(c). An FUP beneficiary may apply to extend this grant of voluntary departure so long as he remains eligible for the program. 8 C.F.R. § 236.15(e). An FUP beneficiary may also apply to travel outside the United States. 8 C.F.R. § 236.16. Upon return from authorized travel, an FUP beneficiary, provided he remains admissible, is "admitted in the same immigration status as the alien had at the time of departure, and shall be provided the remainder of the voluntary departure period previously granted under the Family Unity Program." Id.

Garcia-Quintero extended his status as an FUP beneficiary in 1995, and became an LPR in 1998. In June 2001, Garcia-Quintero received a Notice to Appear in Removal Proceedings, which charged him with being removable as an alien smuggler because he "knowingly, induced, assisted, abetted, or aided [another] alien to enter or to try to enter the United States in violation of [§ 212(a)(6)(E)(i) of the Immigration and Nationality Act ('INA')]."

At the removal hearing, counsel for the Immigration and Naturalization Service ("INS")3 called Garcia-Quintero, its only witness, to testify. Before the direct examination began, Garcia-Quintero's attorney informed the IJ that he had advised his client "to claim the benefit of his Fifth Amendment right not to incriminate himself . . . if he is asked to testify as to his role in any alien smuggling." The IJ allowed the attorney to confer with and advise Garcia-Quintero, but required Garcia-Quintero to assert his Fifth Amendment right himself. Through an interpreter, Garcia-Quintero answered questions regarding his background, but then invoked his Fifth Amendment right when the Government asked him whether he had traveled to Mexico in June 2001, and whether he had been charged with any criminal violations that year.

After invoking the Fifth Amendment in response to these questions, Garcia-Quintero answered the Government's questions concerning the June incident. He testified that an immigration officer detained him and his goddaughter at the port of entry in Calexico because he tried to help her cross the border into the United States by presenting false documents to the immigration inspector. When the Government completed its examination, Garcia-Quintero's attorney declined to ask him any questions, but stated that it was unfair that he was not permitted to assert the Fifth Amendment on behalf of his client. The attorney, however, also stated that he could not point to anything to show that Garcia-Quintero did not understand that he was incriminating himself by testifying about the June incident. Based upon Garcia-Quintero's testimony, the IJ determined that he knowingly participated in alien smuggling, and was therefore subject to removal.

Garcia-Quintero appealed the IJ's decision to the BIA, arguing that because his counsel was not allowed to assert the Fifth Amendment privilege for him, the IJ forced Garcia-Quintero to incriminate himself in violation of the Fifth Amendment. Moreover, because his testimony was the only evidence the Government presented, Garcia-Quintero argued that his removal hearing should have been terminated given the Fifth Amendment violation. He also requested that his appeal be reviewed by a three-member panel of the BIA.

While the appeal was pending, Garcia-Quintero filed a motion to remand to the

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immigration court so that the IJ could consider his application for cancellation of removal pursuant to 8 U.S.C. § 1229b.4 garcia-Quintero argued that he was eligible for cancellation of removal because, as a consequence of his 1993 acceptance into the FUP, he was "admitted in any status," and therefore he satisfied the residence requirement by having resided continuously in the United States for seven years. Along with his motion, Garcia-Quintero submitted a declaration in which he remorsefully admitted to the conduct underlying the charge of alien smuggling.

In a one-member unpublished order, the BIA dismissed Garcia-Quintero's appeal and denied his motion to remand. The BIA determined that the IJ did not err in requiring Garcia-Quintero to invoke personally his Fifth Amendment right against self-incrimination, on a question-by-question basis, and thus his testimony was properly considered. The BIA further held that Garcia-Quintero failed to establish his prima facie eligibility for cancellation of removal. Because he became an LPR in 1998 and his residency ended in 2001, when he received the Notice to Appear, the BIA concluded that Garcia-Quintero had not resided continuously in the United States for seven years after having been "admitted in any status." In so holding, the BIA rejected Garcia-Quintero's argument that he was first admitted when he was accepted into the FUP in 1993. Garcia-Quintero timely petitioned for review of the BIA's decision.

II. Discussion

A. Judicial Review of the BIA's Decision

Standard of Review

Where, as here, the BIA reviews de novo...

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