Enriquez v. Barr

• Decision Date: 13 August 2020
• Docket Number: No. 13-72934,13-72934
• Citation: 969 F.3d 1057
• Parties: Eduardo J. ENRIQUEZ, aka Eduardo Jobanny Enriquez, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

969 F.3d 1057

Eduardo J. ENRIQUEZ, aka Eduardo Jobanny Enriquez, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 13-72934

United States Court of Appeals, Ninth Circuit.

Submission Deferred April 3, 2020

Submitted August 6, 2020^* Pasadena, California

Filed August 13, 2020

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 8 U.S.C. § 1229b(a)(2) when he was approved as a derivative beneficiary of his mother's self-petition under the Violence Against Women Act (VAWA). We therefore deny his petition for review.

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 California Penal Code section 136.1(a)(2). The Department of Homeland Security (DHS) issued him a Notice to Appear, charging him with removability for committing a crime of moral turpitude within five years of admission under 8 U.S.C. § 1227(a)(2)(A)(i).

Enriquez conceded the allegations against him but applied for cancellation of removal under 8 U.S.C. § 1229b(a). In a single-member, unpublished decision, the BIA affirmed the IJ's conclusion that Enriquez was not eligible for cancellation of removal. The BIA explained that Enriquez had not "resided in the United States continuously for 7 years after having been admitted in any status," as required by 8 U.S.C. § 1229b(a)(2). It reasoned that the 2000 approval of Enriquez's derivative VAWA petition was not an "admission" and therefore Enriquez was not "admitted" until 2008 when he adjusted to LPR status. The BIA acknowledged that our decision in Garcia-Quintero v. Gonzales , 455 F.3d 1006, 1009 (9th Cir. 2006), had previously concluded that participation in the Family Unity Program (FUP)—a program "designed to help families stay together while the beneficiaries adjust to LPR status," id. —constituted an admission. But the BIA declined to extend that reasoning to VAWA, reasoning that Garcia-Quintero conflicted with the BIA's subsequent decision In re Reza-Murillo , 25 I. & N. Dec. 296, 297–99 (BIA 2010), which held that participation in the Family Unity Program was not an "admission" for purposes of cancellation of removal because the grant of FUP benefits did not involve " ‘entry ... after inspection and authorization by an immigration officer’ under Section 101(a)(13)(A) of the Act." Id. The BIA dismissed Enriquez's appeal, and he timely petitioned for our review.

II.

A.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). "We review the BIA's determination of questions of law de novo, subject to established principles of deference." Alanniz v. Barr , 924 F.3d 1061, 1065 (9th Cir. 2019).

For cancellation of removal, a petitioner must have: (1) been "lawfully admitted for permanent residence 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." 8 U.S.C. § 1229b(a). We must decide whether approval of the VAWA self-petition in 2000 is an "admission" within the meaning of § 1229b(a)(2).

We generally define "admitted" by reference to the Immigration and Nationality Act (INA)’s statutory definition in 8 U.S.C. § 1101(a)(13)(A), which requires "lawful entry ... after inspection and authorization by an immigration officer." See Medina-Nunez , 788 F.3d at 1105. However, we "have ‘embrace[d] an alternative construction of the term’ when the statutory context so dictates." Ramirez v. Brown , 852 F.3d 954, 961 (9th Cir. 2017) (quoting Negrete-Ramirez v. Holder , 741 F.3d 1047, 1052 (9th Cir. 2014) ). The BIA has likewise recognized that "compelling reasons" may justify a deviation from the statutory definition. Reza-Murillo , 25 I. & N. Dec. at 299. For example, the BIA held in In re Rosas-Ramirez , 22 I. & N. Dec. 616, 623 (BIA 1999), that adjustment to LPR status constituted an "admission" even if the adjustment was preceded by an entry that was unlawful or without inspection, in part because one who has LPR status has been "lawfully admitted for permanent residence," 8 U.S.C. § 1101(a)(20). This holding avoided the "absurdity of treating aliens who entered the United States without inspection prior to being granted [LPR] status more like aliens without any valid immigration status than like permanent resident aliens who entered the United States after inspection." Reza-Murillo , 25 I. & N. Dec. at 298 (citing Rosas-Ramirez , 22 I. & N. Dec. at 621–23 ).

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 8 C.F.R. §§ 236.15, 236.16 ). However, unlike LPRs, they are not considered to have been "lawfully admitted for permanent residence." Id. at 298 (citing 8 U.S.C. § 1101(a)(20) ). The BIA therefore held that the statutory definition of "admitted" controlled and that participation in the Family Unity Program is not an admission for cancellation of removal because the "grant of FUP benefits did not itself involve [the petitioner's] ‘entry ... into the United States after inspection and authorization by an immigration officer.’ " Id. at 297 (quoting 8 U.S.C. § 1101(a)(13)(A) ).

In 2015, we afforded deference under Brand X¹ to the BIA's decision in Reza-Murillo , narrowed our definition of "admitted" under § 1229b(a)(2), absent "compelling reasons," to the INA's statutory definition under Section 1101(a)(13)(A), and held that "acceptance into the Family Unity Program does not constitute an admission for purposes of § 1229b(a)(2)." Medina-Nunez , 788 F.3d at 1105. We have since extended the reach of Medina-Nunez to hold that petitioners who received comparable discretionary benefits are not "admitted" and thus ineligible for cancellation of removal. For example, in Fuentes v. Lynch , 837 F.3d 966, 967–68 (9th Cir. 2016) (per curiam), we held that the petitioner—a derivative beneficiary of his mother's asylum and Nicaraguan Adjustment and Central American Relief Act (NACARA) applications who received work authorization—was not "admitted" for cancellation of removal purposes because he had not satisfied the statutory definition. We followed suit in Alanniz v. Barr , holding that the receipt of discretionary parole for the possibility of adjustment of status was not an admission for cancellation of removal. 924 F.3d at 1065–67. In both cases, we reasoned that because the benefits from the administrative actions at issue were less generous than the Family Unity Program, and because the statutory and regulatory language did not require our application of a definition different from the statutory definition of "admission," the receipt of those benefits was not an admission within the meaning of the cancellation of removal provision. See id. at 1066–67 ; Fuentes , 837 F.3d at 968.

B.

Enriquez's period of continuous residence stopped accruing when he committed a crime of moral turpitude in 2012. See 8 U.S.C. 1229b(d)(1). Therefore, to meet the seven-year continuous residence requirement for cancellation of removal under § 1229b(a), Enriquez must show he was "admitted in any status" in 2005 or earlier. Id. § 1229b(a)(2).

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 8 U.S.C. § 1154(a)(1)(B)(ii)(I). The approval of a Form I-360 VAWA self-petition permits a battered spouse to apply for adjustment to LPR status, but is not itself an adjustment of status. See 8 U.S.C. § 1255(a). When a VAWA self-petition is approved, the self-petitioner and his dependent children included in the petition become eligible for deferred action and work authorization. 8 U.S.C. §§ 1154(a)(1)(D)(i)(IV), (a)(1)(K).

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...