Posos-Sanchez v. Garland

• Decision Date: 07 July 2021
• Docket Number: No. 17-72002,17-72002
• Citation: 3 F.4th 1176
• Parties: Angel POSOS-SANCHEZ, AKA Elias Avalos Fonseca, AKA Angel Figueroa Martinez, AKA Pedro Soto-Hernandez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

3 F.4th 1176

Angel POSOS-SANCHEZ, AKA Elias Avalos Fonseca, AKA Angel Figueroa Martinez, AKA Pedro Soto-Hernandez, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 17-72002

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2021 Pasadena, California

Filed July 7, 2021

Michael J. Selph (argued), Law Offices of Michael J. Selph, North Hollywood, California, for Petitioner.

Rachel L. Browning (argued), Trial Attorney; Keith I. McManus, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Kim McLane Wardlaw, Ronald M. Gould, and John B. Owens, Circuit Judges.

WARDLAW, Circuit Judge

In September 1990, United States Border Patrol agents stopped Angel Posos-Sanchez at a border patrol checkpoint in San Clemente, California. They examined his immigration papers—which at the time authorized him to work and reside in the United States—and then let him go on his way. This incident became important decades later, when Posos faced removal proceedings. At that time, he applied to adjust his status and contested his removal from the United States because he claimed that the officials in San Clemente had "admitted" him to the United States. See 8 U.S.C. §§ 1101(a)(13)(A), 1182(a)(6)(A)(i), 1255(a).

Posos also applied for voluntary departure at the end of his removal proceedings, so that he could leave the United States on his terms. See id. § 1229c. He made that request even though he had not been physically present within the United States for a year before the Department of Homeland Security (DHS) served him with the operative Notice to Appear (NTA). At the time, he thus appeared ineligible for voluntary departure. See id. § 1229c(b)(1)(A). Yet his NTA did not state the time or date of Posos's removal proceedings—a fact that now sets off alarm bells given the Supreme Court's groundbreaking decisions in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), and Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, ––– L.Ed.2d –––– (2021).

Though Posos lost on both fronts before the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) (collectively "the agency"), we render a mixed verdict here. On the one hand, the agency properly found that immigration officials did not "admit" Posos to the United States when they allowed him to pass through the San Clemente checkpoint in 1990. He is therefore removable and ineligible to adjust his status. On the other hand, the agency erred in finding him ineligible for voluntary departure under § 1229c(b)(1)(A). The missing date-and-time information on Posos's NTA means that DHS never served him with the kind of NTA that § 1229c(b)(1)(A) demands. Accordingly, that NTA did not stop the clock for purposes of computing the time during which he was physically present in the United States under § 1229c(b)(1)(A). And as a result, Posos had racked up five years of physical presence when the IJ ordered him removed, and he was therefore eligible for voluntary departure if he satisfied the other statutory conditions.

We thus deny in part and grant in part Posos's petition and remand for further consideration of his application for voluntary departure.

I.

A.

Posos was born in Zacatepec, Mexico, and at age 17, he set out on foot for the United States. At some point in 1980, he crossed the southern border of the United States without encountering American immigration authorities. He has lived, worked, and built a family here ever since.

During the first decade that Posos lived in the country, Congress passed the Immigration Reform and Control Act (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986), and the amnesty provisions therein, see 8 U.S.C. § 1255a. These amnesty provisions provided a path to permanent resident status for noncitizens who had resided unlawfully and been physically present in the United States since January 1, 1982. See Proyecto San Pablo v. I.N.S. , 189 F.3d 1130, 1134 (9th Cir. 1999). Qualifying noncitizens who wished to take advantage of this system applied "first for lawful temporary resident status, and then, after a one-year wait, for permanent residency." Id.

Posos applied for temporary resident status under this law, but, because of the law's confidentiality provisions, we aren't privy to every detail about that application. See 8 U.S.C. § 1255a(c)(5). Still, we know that, on May 4, 1988, the Immigration and Naturalization Service (INS) issued Posos a temporary resident card (Form I-688) that expired on November 30, 1990. This card stated that Posos could legally "reside and work in U.S. until [the] card expires." Then, on August 24, 1993, the INS informed Posos that his "application for the benefit of temporary resident status must be and is hereby denied." Nothing in the record suggests that Posos ever held either temporary or permanent resident status after August 24, 1993.

Yet his temporary resident card remained valid when immigration officials stopped him at the border patrol checkpoint in San Clemente, California on September 24, 1990. See generally 8 U.S.C. § 1357(a) ; 8 C.F.R. § 287.1(a). Posos lived in Riverside, California at the time, and had traveled to San Diego for recreational purposes. On Posos's way back home, the border patrol agent manning the San Clemente checkpoint stopped Posos and his passengers and asked them about their citizenship status. Posos stated that he was a Mexican citizen and presented the border patrol agent with his valid temporary resident card. As a result, the border patrol agents released Posos on his own recognizance; his passengers, who were undocumented Mexican citizens, voluntarily elected to return to Mexico rather than face deportation proceedings.

After the INS denied his application for temporary resident status in 1993, Posos continued to live and work in the United States. However, in either 2010 or 2011, Immigration and Customs Enforcement removed Posos to Mexico (the record does not explain how or why this removal came about).

Seeking to reunite with his family, Posos tried to reenter the United States at the San Ysidro Port of Entry on March 9, 2011. There, immigration officials stopped the vehicle bringing him into the country and found him hiding in the trunk of the car. Posos admitted to these officials that he lacked the necessary documentation to enter or remain in the United States. They therefore detained him and referred him to the Immigration Court for removal proceedings.¹ Importantly for our purposes here, these immigration officials did not give Posos written, verbal, or nonverbal authorization to enter the United States, and Posos has never received such permission.

B.

On May 2, 2011, DHS filed an NTA, alleging that Posos was removable as a native and citizen of Mexico, who had entered the United States without being admitted or paroled after inspection. This NTA failed to state the date and time of Posos's removal proceedings. Later on, however, DHS sent Posos notices of hearing containing that missing information.

Before the IJ, Posos conceded most of the allegations in the NTA, denying only the allegation that an immigration official had not "admitted" him to the United States. He also applied for affirmative immigration relief, including adjustment of status under 8 U.S.C. § 1255(a), cancellation of removal under 8 U.S.C. § 1229b, and voluntary departure under 8 U.S.C. § 1229c. In filing his application to adjust his status, Posos maintained that immigration officials had "admitted" him to the United States.

Posos offered two theories for his "admission" into the country. First, he argued that he had been admitted when he received temporary resident status. Second, he claimed that immigration officials had admitted him into the United States on September 24, 1990, when the border patrol agents at the San Clemente checkpoint apprehended and released him after he showed them his temporary resident card.

The IJ overseeing Posos's case rejected both arguments, thereby finding Posos removable and ineligible to adjust his status. The IJ further denied Posos's application for cancellation of removal because Posos lacked a qualifying relative, and found Posos ineligible for voluntary departure because he had last entered the United States less than a year before DHS served him with the operative NTA.

On appeal before the BIA, Posos contested the IJ's decision as to his lack of an "admission" to the United States (based solely on the events at the San Clemente checkpoint) and the IJ's finding that he was ineligible for voluntary departure.² Citing Matter of Burbano , 20 I. & N. Dec. 872, 874 (B.I.A. 1994), the BIA adopted and affirmed the IJ's decision, adding only that INS's ultimate decision to deny Posos temporary resident status would have undone any hypothetical admission at the San Clemente checkpoint. Posos timely petitioned for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) and § 1252(a)(2)(D).³ Because the BIA cited Matter of Burbano and also provided its own analysis in this case, we review both the BIA and IJ's decisions. Cordoba v. Barr , 962 F.3d 479, 481 (9th Cir. 2020). We review the agency's legal conclusions de novo and review its factual findings for substantial evidence. Bringas-Rodriguez v. Sessions , 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).

III.

We first examine whether immigration officials "admitted" Posos to the United States at the San Clemente checkpoint on September 24, 1990—as Posos's removability and application to adjust his status both turn on the answer to that question. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1255(a).

A.

The INA generally defines the words "admission" and "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Id. § 1101(a)(13)(A); accord Sanchez v. Mayorkas , ––– U.S. ––––, ––––, 141 S.Ct. 1809, 1811, ––– L.Ed.2d –––– ...