Fuentes v. Lynch
| Decision Date | 31 August 2016 |
| Docket Number | No. 13–74056,13–74056 |
| Citation | 837 F.3d 966 |
| Parties | Juan Carlos Fuentes, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kiran Nair, Law Office of Kiran Nair, Orange, California, for Petitioner.
Walter Bocchini, Trial Attorney; Linda S. Wernery, Assistant Director; Stuart F. Delery, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.
Before: Barry G. Silverman, Raymond C. Fisher and Paul J. Watford, Circuit Judges.
Juan Carlos Fuentes petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the decision of the Immigration Judge (IJ) denying his application for cancellation of removal under 8 U.S.C. § 1229b(a)
Reza–Murillo , 25 I. & N. Dec. 296 (BIA 2010), we hold the BIA properly concluded Fuentes was not “admitted in any status” for purposes of cancellation of removal when he was listed as a derivative beneficiary on his mother's asylum and Nicaraguan Adjustment and Central American Relief Act (NACARA) applications and received work authorization in the United States. We dismiss in part and deny in part the petition for review.
To be eligible for cancellation of removal, Fuentes had to establish he “resided in the United States continuously for 7 years after having been admitted in any status .” 8 U.S.C. § 1229b(a)(2)
(emphasis added). Fuentes, who entered the United States without inspection in 1996, was admitted in 2004, when he was granted legal permanent resident (LPR) status. His continuous residence ended in 2009, when he committed a controlled substance offense, so he does not satisfy the seven years of continuous residency requirement.
Fuentes contends he does satisfy the requirement because he should be deemed to have been “admitted in any status” when his mother listed him as a derivative beneficiary on her asylum and NACARA applications and when, as an applicant, he received authorization to work in the United States. He relies principally on Garcia–Quintero v. Gonzales , 455 F.3d 1006, 1009 (9th Cir. 2006)
, holding individuals accepted into the Family Unity Program (FUP) are “admitted in any status” for purposes of § 1229b(a)(2), and Garcia v. Holder , 659 F.3d 1261, 1263 (9th Cir. 2011), holding individuals paroled as Special Immigrant Juveniles under 8 U.S.C. § 1255(h) are “admitted in any status” for purposes of § 1229b(a)(2).
In Medina–Nunez v. Lynch , 788 F.3d 1103, 1105 (9th Cir. 2015)
, however, we afforded Chevron deference to I
n re
Reza–Murillo , 25 I. & N. Dec. 296 (BIA 2010). In Reza–Murillo , the BIA held, contrary to Garcia–Quintero, that individuals accepted into the FUP are not considered “admitted in any status” for purposes of cancellation of removal. See
. The BIA recognized there may be cases in which there are “compelling reasons,” id. , to deem individuals “admitted in any status” notwithstanding their lack of admission under 8 U.S.C. § 1101(a)(13)(A) (), such as with persons granted LPR status, see
In re Rosas–Ramirez , 22 I. & N. Dec. 616 (BIA 1999). See
id. at 299–300. But the Board concluded such reasons did not exist in the case of FUP participants. See id. In Medina–Nunez , 788 F.3d at 1105, we afforded Chevron deference to Reza–Murillo , abrogating Garcia–Quintero, and held acceptance into the FUP does not constitute admission for purposes of § 1229b(a)(2).
Individuals in Fuentes' position, who have been listed as derivative beneficiaries on a parent's asylum and NACARA applications and who have been afforded authorization to work in the United States, have no stronger claim to having been “admitted” into the United States than individuals accepted into the FUP. FUP participants have not merely applied for, but have been accepted into, a special immigration status. See Garcia–Quintero , 455 F.3d at 1009
. They have protection against removal, freedom to travel outside the United States, work authorization under 8 C.F.R. § 274a.12(a)(14) and status recognition under a federal regulation, 8 C.F.R. § 236.16. See
id. at 1009–10, 1017–18. Because Fuentes enjoyed fewer benefits than FUP participants, his claim to admission is no greater than—and in fact is weaker than—persons accepted into the FUP. Thus, under Reza–Murillo and Medina–Nunez, he was not “admitted in any status” before he obtained LPR status in 2004. The BIA therefore properly dismissed Fuentes' appeal from the IJ's denial of his application for cancellation of removal.
Even under our pre-Medina–Nunez case law, which remains controlling precedent to the extent it is consistent with Reza–Murillo , Fuentes' contention that he was “admitted in any status” because he was listed as a derivative beneficiary on his mother's asylum and NACARA applications would be unpersuasive. See, e.g. , Vasquez de Alcantar v. Holder , 645 F.3d 1097, 1103 (9th Cir. 2011)
(); Sudomir v. McMahon , 767 F.2d 1456, 1462 (9th Cir. 1985) (). Nor would his work authorization under 8 C.F.R. § 274a.12(c) establish his admission. See
Guevara v. Holder , 649 F.3d 1086, 1091–92 (9th Cir. 2011) (...
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