Lezama-Garcia v. Holder

• Citation: 11 Cal. Daily Op. Serv. 14343,666 F.3d 518,2011 Daily Journal D.A.R. 17142
• Decision Date: 05 November 2010
• Docket Number: No. 06–74703.,06–74703.
• Parties: Carlos Antonio LEZAMA–GARCIA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

11 Cal. Daily Op. Serv. 14,343

2011 Daily Journal D.A.R. 17,142

666 F.3d 518

Carlos Antonio LEZAMA–GARCIA, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06–74703.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 2010.*Filed Nov. 30, 2011.

Raul Montes, Montes, Montes & Montes, Chula Vista, CA, for petitioner Carlos Antonio Lezama–Garcia.

Scott Rempell, United States Department of Justice, Washington D.C., for respondent Attorney General Eric H. Holder Jr.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75–479–222.Before: ALFRED T. GOODWIN and JOHNNIE B. RAWLINSON, Circuit Judges, and J. MICHAEL SEABRIGHT,^** District Judge.Opinion by Judge SEABRIGHT; Dissent by Judge RAWLINSON.

OPINION

SEABRIGHT, District Judge:

Carlos Antonio Lezama–Garcia (“Lezama”), a native and citizen of Nicaragua, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge's (“IJ”) order of removal. The IJ determined that, under 8 C.F.R. § 245.13(k)(1), Lezama had abandoned his pending application for adjustment of status under Section 202 of the Nicaraguan Adjustment and Central American Relief Act ¹ (“NACARA”) as of the moment he drove from the United States into Mexico—even if his unplanned departure was not desired and he immediately turned around and attempted to return. As a result, the IJ ordered Lezama to be removed as an inadmissible arriving alien.

We conclude that deeming Lezama's NACARA application abandoned was contrary to the regulation, and ordering removal conflicted with NACARA itself. We therefore grant the petition and remand for further proceedings.²

I. BACKGROUND

Lezama entered the United States without inspection from Nicaragua. He has remained in this country continuously since at least April 1993 (other than the March 2004 incident in question here where he drove into Mexico).³ He was subject to an order of removal, having had a prior asylum application denied in absentiain 1997. In March of 2000,⁴ however, he applied for relief under NACARA § 202—a provision excusing both his prior entry without inspection and the pending 1997 order of removal—to adjust his status to that of an alien lawfully admitted for permanent residence.

NACARA is powerful legislation for an alien like Lezama who has no criminal record. Enacted in 1997 in response to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009 (1996) (“IIRIRA”), among other measures, “NACARA § 202 created a new ‘adjustment of status' process for qualified nationals of Nicaragua and Cuba.” Masnauskas v. Gonzales, 432 F.3d 1067, 1070 (9th Cir.2005).

NACARA [§ 202] mandated that the Attorney General legalize the status of Nicaraguan and Cuban nationals unlawfully present in the United States if they (1) had been physically present in the United States for a continuous period beginning no later than December 1, 1995 through the date of the application for relief; (2) applied for adjustment of status before April 1, 2000; (3) were otherwise eligible to receive an immigrant visa; and (4) were otherwise admissible to the United States for permanent residence.

Frech v. U.S. Attorney Gen., 491 F.3d 1277, 1279 (11th Cir.2007). ⁵ That is, if a NACARA § 202 applicant is eligible, the status of the alien “ shall be adjusted by the Attorney General to that of an alien lawfully admitted for permanent residence[.]” NACARA § 202(a)(1) (emphasis added). Further, while an application is pending, a NACARA § 202 applicant is entitled to a stay of removal, and a grant of work authorization. Id. § 202(c)(1) & (2).

Lezama appears to have met the eligibility requirements for § 202(a) relief. Although not entirely clear, his application was apparently filed before April 1, 2000. He was physically present in the United States before December 1, 1995, and such presence continued uninterrupted until the date he applied. See id. § 202(b)(1).⁶ He appears to have been “otherwise admissible” as he had no criminal history. The legacy Immigration and Naturalization Service (“INS”) had completed “preliminary processing” of his application, but Lezama was awaiting an interview in 2004. Meanwhile, Lezama had NACARA work authorization, and the prior removal order was stayed.

On March 25, 2004, Lezama was driving a company truck from Long Beach, California, to a company office in San Diego.⁷ He could not locate his destination, and found himself in traffic on the “I–5” freeway going toward the Mexico border near San Ysidro, California. As he neared the border, he was unable to locate an exit and tried to move out of traffic, but a police officer motioned for him to keep going. He drove into Mexico, immediately turned around to come back to the United States, but was turned away. Specifically, Lezama describes the circumstances of his unplanned departure from the United States, in part, as follows:

I was not familiar with the area of San Diego, having been there only once before in my life. I arrived in San Diego at about 6:15 a.m. that morning. I was on Interstate Highway 5 south; however, I could not locate the appropriate offramp to the company office. I continued driving south on 5 and before I knew it I was in the area of San Ysidro, California near the United States/Mexican border. As I got close to the border I was looking for a way to turn the truck around in order to head back north. I worked my way out of the traffic toward the side of freeway 5 and slowed down looking for a place to stop; however, there was a police officer in the area who yelled in my direction saying, “Let's go, let's go,” while motioning with his hand for me to continue south. I figured that there must be a place further south on the American side of the border where I could make a Uturn [sic] or exit in order to head back north on 5. So I proceeded slowly south on 5 looking for a U-turn or an exit; however, before I knew it I was in the flow of traffic being funneled through the exit to Mexico, unable to stop. The next thing I knew I had unintentionally crossed the United States/Mexican border into Mexico.When he turned around, Lezama was refused admission at the San Ysidro Port of Entry because he lacked a valid entry document. Desperate, he tried again four days later at the Otay Mesa Port of Entry, with someone else's identification, and was detained.

Lezama was subsequently charged in a Notice to Appear with being an “arriving alien” subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because he lacked valid entry documents when applying for admission. Lezama filed a motion to terminate removal proceedings, contending he was not an “arriving alien.” ⁸ He argued that, because he did not intend to depart the United States, he was not making an “entry” into the country when he returned. The IJ acknowledged Lezama's inadvertent departure but, given the pending removal order against him, the IJ denied the motion to terminate. The IJ reasoned:

[i]f the only problem we had here was the fact that Mr. Lezama left the United States inadvertently, that would be something obviously that has to be considered [but] the problem was there was an in absentia deportation order pending at the time that he inadvertently went across the border. And so he self-deported himself.

A different IJ later also concluded that Lezama had abandoned his pending NACARA § 202 application “as of the moment of his departure.” The IJ relied on 8 C.F.R. § 245.13(k)—part of NACARA's implementing regulations—which provides in part:

Unless the applicant files an advance parole request prior to departing from the United States, and the Service approves such request, his or her application for adjustment of status under section 202 of Public Law 105–100 is deemed to be abandoned as of the moment of his or her departure.

The IJ reasoned that “[t]he regulation does not speak in terms of a[n] ‘inadvertent’ or ‘involuntary’ departure ... it simply declares that any alien who departs the United States without advanced parole (as [Lezama] did) abandons his application for NACARA adjustment.” The IJ was “unwilling to graft onto the regulation['s] language a ‘voluntary departure’ proviso.” Accordingly, the IJ ordered Lezama removed after finding him inadmissible under § 1182(a)(7)(A)(i)(I).

The BIA affirmed and adopted the IJ's decision in an unpublished, one-judge, per curiam order. As for NACARA, the BIA's reasoning (in full) was as follows:

We adopt and affirm the decision of the Immigration Judge with the following additions. See Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) ( [parenthetical omitted] ). We agree that [Lezama's] departure from the United States, while his application for adjustment of status was pending, effected the abandonment of his application for adjustment of status pursuant to NACARA. See section 245 of the Act, at Note 9; see also 8 C.F.R. § 1245.13(k)(1). Thus, [Lezama's] application for adjustment of status, pursuant to the NACARA, was properly denied.

Lezama then filed this timely petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252(a).

II. STANDARDS OF REVIEW

A. We Review Both the IJ and BIA Decisions

Where the BIA adopts and affirms the IJ's decision by citing Matter of Burbano, it is adopting the IJ's decision in its entirety. See Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.2005) (en banc). And where the BIA conducts its own review of the evidence and law, the court's “review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks omitted).

Here, the BIA cited Matter of Burbano and stated that it made “the following additions.” It is not clear whether the BIA's “additions” refer to NACARA or only to asylum, but as to NACARA it appears the BIA “provided its own review of the evidence and the law” and so...