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Melchor Guevara v. Eric H. Holder Jr.

June 3, 2011


On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-498-425

The opinion of the court was delivered by: N.R. Smith, Circuit Judge:



Argued and Submitted February 2, 2010-Pasadena, California

Before: Mary M. Schroeder, Raymond C. Fisher, and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Dissent by Judge Fisher


The grant of employment authorization, pending the approval of adjustment of status to that of a Legal Permanent Resident (LPR) under 8 U.S.C. § 1255, does not confer admission status on an undocumented alien (one who entered without inspection or authorization and has not otherwise been admitted) for purposes of calculating seven years of continuous residence under 8 U.S.C. § 1229b(a)(2). Employment authorization, under 8 C.F.R. § 274a.12(c), merely allows such alien the right to work while his or her application for adjustment of status is being adjudicated.

I. Factual Background

Melchor Guevara entered the United States without inspection in 1987. After entering the United States, Guevara began living and continues to live with his LPR daughter and his two United States citizen grandchildren.

In October 1997, Guevara filed an application to adjust his status from that of an undocumented alien to an LPR under 8 U.S.C. § 1255(i) (after receiving an approved I-130). After filing his application, Guevara applied for and received his employment authorization in January 8, 1998. While his application for adjustment of status was pending, Guevara requested permission to temporarily leave the United States (i.e., advanced parole, 8 U.S.C. § 1182(d)(5)(A)); the request was denied on September 29, 1999. Thus, Guevara was required to stay in the United States pending the approval of his application for adjustment of status or risk forfeiting his application. On October 17, 2000, he was allowed to adjust his status to an LPR.

On September 17, 2006, Guevara attempted to assist another alien daughter and her child to enter the United States unlawfully. Because of that conduct, Guevara was served (on the same day) with a Notice to Appear in removal proceedings. The government charged him with knowingly assisting undocumented persons to enter the United States in violation of Immigration and Nationality Act (INA) § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i).

During Guevara's removal proceedings, he admitted to assisting his daughter and grandchild to illegally enter the United States. However, he also applied for cancellation of removal. The immigration judge (IJ) found that Guevara was eligible for cancellation of removal under INA § 240A (8 U.S.C. § 1229b). Specifically, the IJ found that Guevara met the seven-year requirement for cancellation of removal, because Guevara was granted the employment authorization on January 8, 1998 and lived in the United States continuously until the initiation of removal proceedings on September 17, 2006. The IJ held that, when the government granted Guevara the opportunity to work in the United States, he was "admitted in any status." In making this decision, the IJ found Guevara's circumstances similar to those of participants in the Family Unity Program (FUP) and therefore applied the reasoning of Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), to Guevara. The IJ also noted that Guevara was denied advanced parole and thus required to remain in the United States.

The government appealed the IJ's ruling to the Board of Immigration Appeals (BIA). The BIA, in an unpublished decision, reversed the IJ's decision. The BIA rejected the IJ's conclusion that receiving an employment authorization document was comparable to being a participant in the FUP. The BIA found that "the holding in Garcia-Quintero, supra, involving an alien who was accepted into the FUP, does not extend to an alien who was simply granted an [employment authorization document]." The BIA further noted "we find the respondent's circumstances are distinct from a FUP beneficiary who is eligible to depart the United States and return pursuant to the FUP concept of 'voluntary departure.' " Instead, the BIA found Guevara ineligible for cancellation of removal, because he had not met his seven years of continuous residence, which it determined began on October 18, 2000,*fn1 the date Guevara's application for adjustment of status was approved.

II. Standard of Review

We review de novo "the BIA's determination of purely legal questions, including the BIA's interpretation of the Immigration and Nationality Act." Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999). We apply Chevron deference to the Board's interpretations of ambiguous immigration statutes, if the Board's decision is a published decision. See Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009). However, we need not defer to the BIA if the statute is unambiguous. See id. at 908; see also INS v. AguirreAguirre, 526 U.S. 415, 424 (1999). We follow "the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute)." Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010) (citing Marmolejo-Campos, 558 F.3d at 909-11).

III. Discussion

[1] In order for Guevara, a legal permanent resident alien (who is inadmissible or deportable), to be eligible for cancellation of removal, he must meet the requirements set forth in 8 U.S.C. § 1229b(a):

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the ...

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