969 F.3d 1057 (9th Cir. 2020), 13-72934, Enriquez v. Barr

Docket Nº:13-72934.
Citation:969 F.3d 1057
Opinion Judge:PER CURIAM:
Party Name:Eduardo J. ENRIQUEZ, aka Eduardo Jobanny Enriquez, Petitioner, v. William P. BARR, Attorney General, Respondent.
Attorney: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 Justicé, Washington, D.C.; for Respondent.
Judge Panel:Concurrence by Judge Murguia[*] MURGUIA, Circuit Judge, concurring:
Case Date:August 13, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1057

969 F.3d 1057 (9th Cir. 2020)

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.

August 13, 2020

Submission Deferred April 3, 2020.

Submitted August 6, 2020 Pasadena, California.

Page 1058

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-465-235

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 Justicé, Washington, D.C.; for Respondent.

Concurrence by Judge Murguia[*]

SUMMARY [**]

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, 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).

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." 8 U.S.C. § 1229b(a)(2). The panel explained that Enriquez's period of continuous residence stopped accruing when he committed a crime of moral turpitude in 2012, and therefore, to meet the seven-year residence requirement, he had to show he was "admitted in any status" in 2005 or earlier.

The panel explained that the court generally defines "admitted" by reference to the Immigration and Nationality Act (INA)'s statutory definition, 8 U.S.C. § 1101(a)(13)(A), which requires "lawful entry . . . after inspection and authorization by an immigration officer." However, the panel noted that the court has embraced an alternative construction of the term when the statutory context dictates, and that the BIA has recognized that "compelling reasons" may justify a deviation from the 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 § 1229b(a)(2), absent "compelling reasons," to the INA's statutory definition. Moreover, the panel explained that the court has since extended the reach of Medina-Nunez to hold that petitioners who received comparable discretionary benefits are not "admitted" for purposes of cancellation of removal.

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.

OPINION

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).

Page 1059

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...

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