Alanniz v. Barr

• Decision Date: 20 May 2019
• Docket Number: No. 15-72792,15-72792
• Parties: Jose Mauricio ALANNIZ, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

924 F.3d 1061

Jose Mauricio ALANNIZ, Petitioner,

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

No. 15-72792

United States Court of Appeals, Ninth Circuit.

Submitted February 12, 2019^* Pasadena, California

Filed May 20, 2019

Mackenzie W. Mackins, Mackins & Mackins LLP, Sherman Oaks, California, for Petitioner.

M. Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie McKay, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-349

Before: Dorothy W. Nelson and Consuelo M. Callahan, Circuit Judges, and Edward R. Korman,^** District Judge.

CALLAHAN, Circuit Judge:

Jose Alanniz, a native and citizen of Mexico, entered the United States without inspection in 1986, received parole in 1997, and adjusted to lawful permanent resident ("LPR") status in 2000. He was convicted of a crime involving cocaine in 2006. He admitted to being removable, but asserted that he was eligible for cancellation of removal based on continuous residency in the United States for more than seven years. The Board of Immigration Appeals ("BIA") affirmed the Immigration Judge's (IJ) pretermission of his application for cancellation of removal holding that Alanniz's continuous residency did not commence with the 1997 parole, but with his 2000 adjustment to LPR status. We agree and affirm the pretermission of his application for cancellation of removal. However, at the parties' mutual request, we remand Alanniz's asylum application for the fact-finding necessary to determine the viability of Alanniz's proposed social group.

I

Alanniz, a native and citizen of Mexico, was born on March 19, 1982. He claims that his parents brought him into the United States without inspection in 1986. He adjusted his status to LPR in August 2000. At the time of his removal hearing, he was unmarried and had four United States citizen children (born in 2000, 2003, 2005, and 2009). His parents and siblings are either citizens or LPRs.

A parole document dated October 10, 1997, paroled Alanniz "into the country for adjustment of status purposes, ... until October 9, 1998."¹ Although this document was not placed in the certified record of this petition for review, Alanniz's primary contention before us is that the document constitutes an "admission" into the United States for the purpose of beginning the seven years of continuous residence necessary to qualify for discretionary cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(2).

In 2002, Alanniz was convicted of possession of a controlled substance, cocaine, in violation of California law and sentenced to three years probation. Then in 2006, Alanniz was convicted of violating a California criminal statute by being under the influence of cocaine and sentenced to 140 days in jail. Removal proceedings were initiated against Alanniz in 2012 based on his 2002 conviction. At the conclusion of a June 12, 2012 hearing before an IJ, the IJ issued an oral decision sustaining the charge of removability and ordering Alanniz removed to Mexico. Alanniz appealed to the BIA which dismissed his appeal, and he then filed a petition for review with the Ninth Circuit.

While his petition was pending before the Ninth Circuit, Alanniz filed a motion to reopen with the BIA asserting that, in October 2012, a California Superior Court had amended the 2002 criminal complaint against Alanniz so that it no longer identified the controlled substance. The BIA granted reopening, vacated its previous order, and remanded the case to the IJ for further proceedings. We then dismissed Alanniz's petition for review for lack of jurisdiction.

In the reopened proceedings, DHS amended the Notice to Appear substituting Alanniz's 2006 drug conviction for the 2002 conviction. In a January 22, 2014 order, the IJ denied Alanniz's requests for relief. Alanniz admitted that he was removable but sought cancellation of removal, asylum, and relief under the Convention Against Torture ("CAT").

The IJ granted DHS's motion to pretermit Alanniz's application for cancellation of removal. The IJ was not persuaded by Alanniz's argument that his 2002 conviction no longer disqualified him from cancellation of removal, but found that it was "undisputed" that Alanniz had been convicted of a controlled substance related offense in 2006, and that the substance had been cocaine.² Accordingly, to be eligible for cancellation, Alanniz had to show "that he was ‘admitted’ and resid[ed] in the U.S. since at least 1999." However, the IJ found that his initial entry was without inspection, and his "first ‘admission’ was when he adjusted his status to a lawful permanent resident on August 3, 2000."

The IJ proceeded to deny Alanniz's request for asylum noting that, even accepting that he provided credible testimony, Alanniz's concern that "he will be targeted for harm by the drug cartels and other criminals in the country" was a generalized fear of harm by criminals and not harm on account of a protected ground. The IJ also denied relief under the CAT noting that there was "no claim or evidence that the respondent was harmed, much less tortured in the past."

Alanniz's appeal to the BIA was dismissed on August 11, 2015. The BIA agreed with the IJ that Alanniz was statutorily ineligible for cancellation of removal because his 2006 conviction came before he had achieved seven years of continuous presence in the United States. The BIA stated: "A grant of parole pursuant to section 212(d)(5)(A) of the Act ‘shall not be regarded as an admission of the alien.’ "³

The BIA also denied Alanniz's application for asylum noting that he had "defined his particular social group based upon his assertion that members of the group are subject to kidnappings and extortion upon arrival in Mexico." It held that it is "well established" that asylum cannot be based on "fear of harm resulting from general conditions of violence and civil unrest affecting the home country's populace as a whole." Finally, the BIA noted that Alanniz had not challenged the IJ's determination that he was not eligible for protection under the CAT. Alanniz filed a timely petition with this court on September 9, 2015.

II

We review only the BIA's decision except to the extent the decision adopts or relies on the IJ's reasoning, in which case we review both the IJ's and the BIA's decisions. Agyeman v. INS , 296 F.3d 871, 876 (9th Cir. 2002) ; Saldivar v. Sessions , 877 F.3d 812, 814 (9th Cir. 2017). We review the BIA's determination of questions of law de novo, subject to established principles of deference. See Hernandez de Anderson v. Gonzales , 497 F.3d 927, 932, 934 (9th Cir. 2007) (we "review de novo claims of due process violations in immigration proceedings" and "defer to an agency's interpretation of its own regulation when that interpretation is neither clearly erroneous nor inconsistent with the regulation.") (quotation marks omitted).

A. Alanniz has not shown that his 1997 parole constitutes an "admission in any status" as that term is used in 8 U.S.C. § 1229b(a)(2).

Title 8 U.S.C. § 1229b(a) allows the Attorney General to cancel the removal of certain permanent residents who have "resided in the United States continuously for 7 years after having been admitted in any status" and have "not been convicted of any aggravated felony." Section 1229b(d)(1) provides that the "period of continuous residence or continuous physical presence in the United States shall be deemed to end ... when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States...." Alanniz does not contest that his 2006 conviction, specifying the controlled substance for which he was convicted, makes the conviction one that is referred to in § 1182(a) and renders Alanniz removable under § 1227(a)(2). Accordingly, Alanniz's eligibility for cancellation of removal turns on whether he accrued the requisite seven years of continuous residence prior to his violation of California law on February 4, 2006, for being under the influence of cocaine.

Alanniz contends that he meets the residency requirement because his 1997 parole constitutes "admitted in any status" as that term is used in § 1229b. He recognizes that 8 U.S.C. § 1101(a)(13)(A) defines "admission" and "admitted" to mean "the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). But he asserts that in Garcia v. Holder , 659 F.3d 1261 (9th Cir. 2011), and Garcia-Quintero v. Holder , 455 F.3d 1006 (9th Cir. 2006), we gave "admission in any status" a broader meaning.

It is true that in Garcia-Quintero , "we concluded that Garcia-Quintero's acceptance into the Family Unity Program ("FUP") rendered him ‘admitted in any status’ for purposes of eligibility for cancellation of removal," Garcia , 659 F.3d at 1269. But we explained in Guevara v. Holder , 649 F.3d 1086 (9th Cir. 2011), that this was because "the FUP was enacted by Congress to assist a very narrow group of aliens," and we declined to extend "admitted in any status" to all "aliens who receive employment authorization." Id . at 1092–93.

In Garcia , we held that Garcia's parole as a Special Immigrant Juvenile ("SIJ"), like Garcia-Quintero's enrollment in FUP, constituted "admitted in any status" and thus Garcia was eligible for cancellation of removal under § 1229b(a)(2).

659 F.3d at 1272. However, we emphasized that Congress had extended certain protections to the "narrow groups" of FUP participants and SIJ parolees, and that our holding did not extend to broader groups. Id . at 1271. Thus, because our judicial expansion of "admitted in any status" was based on unique features of the FUP and SIJ programs, it is doubtful that they support Alanniz's contention that his 1997 parole constituted an admission.

But that question is only...