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Maria Alejandra Vasquez v. Eric H. Holder Jr.

June 3, 2011

MARIA ALEJANDRA VASQUEZ DE ALCANTAR,
PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY
GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-599-388

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

FOR PUBLICATION

OPINION

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;

Concurrence by Judge Fisher

OPINION

An approved Form I-130 Petition for Alien Relative does not confer admission status on an undocumented alien for purposes of showing seven years of continuous residence under 8 U.S.C. § 1229b(a)(2). An approved Form I-130 petition merely provides an undocumented alien (one who entered without inspection or authorization and has not otherwise been admitted) permission to apply for adjustment of status.

I. Factual Background

Maria Alejandra Vasquez de Alcantar ("Vasquez") entered the United States without inspection in 1989. Vasquez later married a legal permanent resident ("LPR"), who thereafter became a United States citizen. After their marriage, Vasquez wanted to receive LPR status in the United States. Therefore, Vasquez's husband filed a Form I-130, Petition for Alien Relative, to establish his marital relationship to Vasquez as a first step in assisting Vasquez to adjust her status to that of an LPR. On August 6, 1998, Vasquez's husband's I-130 visa petition was granted. The approval of the I-130 allowed Vasquez to apply for adjustment of status (Form I-485, Application to Register Permanent Residence or Adjust Status), which she did on June 5, 2000. As is customary with most aliens who are awaiting LPR status, the United States Citizenship and Immigration Services ("USCIS") issued Vasquez employment authorization, which enabled Vasquez to seek employment in the United States.*fn1 On May 17, 2001, she was granted LPR status.

However, on July 12, 2006, Vasquez attempted, by using her daughter's travel documents, to assist an undocumented, unrelated minor to unlawfully enter the United States. On the next day, Vasquez was served with a Notice to Appear in removal proceedings for knowingly assisting an undocumented person to enter the United States in violation of § 212(a)(6)(E)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(E)(i).

After Vasquez's removal proceedings, the Immigration Judge ("IJ") found her removable based upon the charges. Vasquez then applied for cancellation of removal, asserting eligibility because she (1) had been an LPR for more than five years; (2) had resided in the United States for more than seven years after being "admitted in any status;" and (3) had not been convicted of an aggravated felony. The IJ found that Vasquez met all the elements required for cancellation of removal under 8 U.S.C. § 1229b(a). Relevant to this appeal, the IJ specifically found that Vasquez met the seven years of continuous residence requirement by finding Vasquez was "admitted in any status" on the day she became the beneficiary of an approved I-130 petition (August 6, 1998). In reaching that decision, the IJ found a beneficiary of an approved I-130 visa petition was "admitted in any status," by comparing I-130 beneficiaries to beneficiaries of the Family Unity Program, which we held are "admitted in any status" in Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1009 (9th Cir. 2006).

On appeal, the Board of Immigration Appeals ("BIA") disagreed with the IJ. The BIA instead determined that an alien with an approved visa petition (Form I-130) and a pending adjustment of status application (Form I-485) only has a "pending application for admission" and is therefore not "admitted in any status." The BIA found that Vasquez was not "admitted in any status" until May 17, 2001 (the date she was granted LPR status). Vasquez, therefore, did not meet the seven years of continuous residence requirement for cancellation of removal. The BIA limited Garcia-Quintero's applicability to those aliens admitted into the Family Unity Program.

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 Attorney General's interpretations of ambiguous immigration statutes, if the agency'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 to be eligible for cancellation of removal, a legal permanent resident alien (who is inadmissible or deportable) must meet the ...


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