Tovar v. U.S. Attorney Gen.

• Decision Date: 19 July 2011
• Docket Number: No. 10–11314.,10–11314.
• Citation: 23 Fla. L. Weekly Fed. C 129,646 F.3d 1300
• Parties: Israel Medina TOVAR, Petitioner,v.U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

646 F.3d 1300

23 Fla. L. Weekly Fed. C 129

Israel Medina TOVAR, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 10–11314.

United States Court of Appeals, Eleventh Circuit.

July 19, 2011.

Laura H. Hickein, Lisa Morinelli, David Bernal, US Department of Justice—Office of Immigration Litigation, Washington, DC, for Respondent.Petition for Review of a Decision of the Board of Immigration Appeals.Before DUBINA, Chief Judge, HILL and EBEL,^* Circuit Judges.DUBINA, Chief Judge:

Petitioner Israel Medina Tovar (“Medina”) petitions for review of the final order of removal issued by the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge's (“IJ”) finding that Medina was removable as charged and denying his applications for adjustment of status and post-order voluntary departure. This case involves Medina's application for adjustment of status to permanent resident under 8 U.S.C. § 1255, in which he asserted his entitlement to classification as a child under the Child Status Protection Act, Pub.L. No. 107–208, § 1, 116 Stat. 927 (2002) (“CSPA”). Under the CSPA, an alien is eligible for an adjustment of status if he is a child “on the date on which an immigrant visa number becomes available for such alien ..., but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability [.]” 8 U.S.C. § 1153(h)(1)(A). The IJ found that the CSPA did not apply to Medina because he did not timely seek to acquire his lawful permanent residence status. The BIA affirmed, agreeing with the IJ that Medina's request for an immigrant visa with the National Visa Center (“NVC”) did not satisfy the “sought to acquire” lawful permanent resident status requirement under the CSPA.

On appeal, Medina requests that we interpret the phrase “sought to acquire” to mean a clear manifestation of a step toward filing the particular application with an agency of the Department of Homeland Security. Under this interpretation, Medina contends that he did maintain his child status, and the BIA erred in denying his application. We agree with Medina that the term “sought to acquire” in the CSPA is broad enough to encompass substantial steps taken toward the filing of the application for permanent residency either with the NVC or with Homeland Security within the one year period, but conclude under the facts of this case, that Medina's actions do not satisfy this broader interpretation. Medina also challenges the BIA's denial of his request for post-order voluntary departure based on his failure to continuously reside in the United States for one year immediately preceding the date he received the NTA. Because we find no ambiguity in the statutory provision in 8 U.S.C. § 1229c(b)(1)(A), we conclude that the BIA correctly denied Medina's request for post-order voluntary departure.

I. BACKGROUND

A. Facts

Medina is a native and citizen of Mexico who was admitted to the United States after inspection on a V–2 non-immigrant visa issued at the U.S. Embassy Ciudad Juarez, Mexico, on June 18, 2002. After his initial admission to the United States, Medina returned to Mexico twice—once for a three-week stay in February 2004 to attend a Mexican festival, and another time for a three-day stay in June 2004 to visit his mother. He last returned to the United States on June 16, 2004. Thus, the IJ found that Medina last entered the United States without inspection on June 16, 2004.

On January 13, 2005, Medina was personally served with a Notice to Appear (“NTA”) in removal proceedings. Medina applied for adjustment of status to permanent resident under 8 U.S.C. § 1255, asserting classification as a child under the CSPA, and applied for post-hearing voluntary departure. In August 2004, Medina's adjustment of status visa number became available. In July 2005, Medina's father received a letter from the NVC acknowledging that it received Medina's earlier request to remove the petition from the termination process and that a petition had been re-entered into the normal NVC process. The letter also stated that the NVC notified an unspecified representative of Medina of the availability of an immigrant visa on an unspecified date and that the NVC received no contact for more than one year after such notification. The next month, Medina's father received another letter from the NVC instructing him regarding further processing of the immigrant visa case. On October 4, 2007, Medina filed an application for adjustment of status (“I–485”), and he later filed Part I of his immigrant visa application.

B. Procedural History

In May 2008, Medina appeared before the IJ and admitted the allegations in the NTA and conceded his removability. As relief from removal, Medina sought adjustment of status as an unmarried child under the age of 21. In opposition, the government filed a motion to pretermit Medina's application for adjustment of status and asserted that Medina failed to maintain his child status because he did not file his I–485 until November 2007, more than three years after visa availability. The government claimed that Medina's correspondence with the NVC was not a sufficient action to satisfy the requirement of having “sought to acquire” legal permanent resident status because he was in removal proceedings during the time he was corresponding with the NVC. The government also asserted that Medina never returned to Mexico to pursue consular processing of his immigrant visa, which his father filed on his behalf.

The IJ found Medina removable as charged. Noting the two requirements necessary to qualify for the benefit of the CSPA—first, that the respondent be under 21 years of age; and second, that the respondent must have “sought to acquire” the status of a lawful alien within one year of a visa number becoming available—the IJ determined that Medina was 18 years and 10 months old under the CSPA's age calculation formula.¹ Without specifying what the phrase “sought to acquire” includes, the IJ found that under these specific facts, Medina had not sought to acquire legal permanent residence within one year after his visa number became available. First, the IJ noted that Medina did not actually file an I–485 until three years after his visa number became available. Second, the IJ found that the NVC letters do not show Medina's own desire to obtain legal permanent residency; rather, they indicate that Medina's father did not want Medina's eligibility terminated. Third, the IJ commented that Medina had “aged out” when he finally filed his I–485. Thus, the IJ concluded that Medina was not eligible for child classification and could not adjust his status under the CSPA. The IJ also denied Medina's request for post-order voluntary departure.

In affirming the IJ's decision, the BIA concurred in the IJ's conclusion that Medina did not come within the scope of the CSPA because Medina did not apply for a visa within the one-year time period. The BIA noted that the record reflects only that Medina requested, in response to a Consular query to terminate his visa, that such visa not be terminated. The BIA also found that Medina did not timely request adjustment of status because he did not submit his I–485 application until his hearing in 2007, although his visa petition was available in August 2004. In addition, the BIA affirmed the IJ's denial of Medina's request for post-voluntary departure because it found that Medina did not possess one year of continuous presence in the United States preceding the service of the NTA. Accordingly, the BIA dismissed the appeal.

II. STANDARD OF REVIEW

Because the BIA adopted and affirmed the IJ's opinion and reasoning, we review both the BIA's and the IJ's decisions. See Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). We review legal issues de novo, giving deference to the BIA's interpretation of the immigration laws and regulations. See Negusie v. Holder, 555 U.S. 511, ––––, 129 S.Ct. 1159, 1163–64, 173 L.Ed.2d 20 (2009). We will “defer to the BIA's interpretation if it is reasonable.” Farquharson v. U.S. Att'y Gen., 246 F.3d 1317, 1320 (11th Cir.2001). However, we will not defer to the BIA's decision if it does not rely on existing BIA or federal court precedent; rather, we view such decisions as persuasive authority. Quinchia v. U.S. Att'y Gen., 552 F.3d 1255, 1258–59 (11th Cir.2008).

III. DISCUSSION

A. Child Status Protection Act

The CSPA provides age-out protection for derivative child beneficiaries adversely affected by administrative delays in the adjudication of immigrant petitions. Under the CSPA, an alien is eligible for an adjustment of status if he is a child “on the date on which an immigrant visa number becomes available for such alien ..., but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability.” 8 U.S.C. § 1153(h)(1)(A). The CSPA does not change the INA definition of child-an unmarried son or daughter under the age of 21, see 8 U.S.C. § 1101(b)(1) but instead, establishes a formula for determining age which is not based entirely on chronological calculation. Under this calculation, an alien's age is determined by subtracting the time an applicable petition is pending from the alien's age at the time the alien parent's visa number becomes available. See 8 U.S.C. § 1153(h)(1)(A), (B).

There is no dispute that Medina met the age requirement under this provision. The dispute in this case centers on the meaning of the “sought to acquire” provision. Our circuit has not addressed this issue, and the BIA has not issued a published opinion explaining the requirements under the statutory provision.²

In one unpublished decision, the BIA has specifically concluded that Congress's use of the term “sought to acquire” lawful permanent residence is broad enough to include substantial steps taken toward the filing of the relevant application during...