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Medina-Nunez v. Lynch

United States Court of Appeals, Ninth Circuit

June 8, 2015

JOSE JUAN MEDINA-NUNEZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent

Argued and Submitted, San Francisco, California April 13, 2015.

On Petition for Review of an Order of the Board of Immigration Appeals. B.I.A. No. A070-736-545.

SUMMARY[**]

Immigration

The panel denied Jose Juan Medina-Nunez's petition for review of the Board of Immigration Appeals' denial of his application for cancellation of removal for failure to meet the statutory residency requirement.

The panel deferred to the BIA's published opinion in Matter of Reza-Murillo, 25 I. & N. Dec. 296 (BIA 2010), to hold that Medina-Nunez's acceptance into the Family Unity Program (" FUP" ) did not constitute an admission into the United States for purposes of cancellation. The panel held that deference was proper despite this court's prior opinion to the contrary in Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) (holding that acceptance into the FUP did constitute an admission), because the holding in Garcia-Quintero did not follow from the unambiguous terms of the statute and thus left no room for the agency's discretion.

Gary A. Watt and Stephen R. Tollafield, Supervising Counsel, Dorothy C. Yamamoto (argued) and Gregory R. Michael, Student Counsel, Hastings Appellate Project, San Francisco, California, for Petitioner.

Rebekah Nahas (argued), Trial Attorney, and Joyce R. Branda, Acting Assisting Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, and Karen L. Melnik, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: Alex Kozinski and Susan P. Graber, Circuit Judges, and Michael A. Ponsor,[*] Senior District Judge.

OPINION

Page 1104

PER CURIAM:

Petitioner Jose Juan Medina-Nunez petitions for review of the Board of Immigration Appeals' (" BIA" ) denial of his application for cancellation of removal under 8 U.S.C. § 1229b(a). The BIA held that Petitioner did not meet the statutory seven-year residency requirement because, under In re Reza-Murillo, 25 I. & N. Dec. 296 (B.I.A. 2010), his acceptance into the Family Unity Program (" FUP" ) did not constitute an admission into the United States for purposes of § 1229b(a)(2). That BIA decision conflicts directly with our decision in Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006). But, applying the rule announced in Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), we defer to the BIA's later published decision in In re Reza-Murillo. We therefore deny the petition.[1]

Petitioner is a native and citizen of Mexico. In 1985, he entered the United States without inspection. In 1996, Petitioner was accepted into the FUP. Persons accepted into the FUP receive significant benefits, including protection from removal, authorization to work in the United States, authorization to travel outside the country, and the option of voluntary departure. See Garcia-Quintero, 455 F.3d at 1009-10 (describing the program in detail). In 2007, Petitioner became a legal permanent resident. He was convicted of various crimes in August 1995, August 2000, March 2004, June 2004, and December 2011. In 2012, the government issued him a notice to appear.

Petitioner then sought cancellation of removal under 8 U.S.C. § 1229b(a) which, among other things, requires the applicant to have resided in the country for " 7 years after having been admitted in any status," id. § 1229b(a)(2) (emphasis added). Petitioner argued that he had been " admitted" in 1996, when he was accepted into the FUP. Citing its published decision directly on point, In re Reza-Murillo, the BIA held that Petitioner's acceptance into the FUP was not an admission for purposes of ยง ...


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