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Saldivar v. Sessions

United States Court of Appeals, Ninth Circuit

November 7, 2017

Abraham Villalba Saldivar, AKA Abraham Saldivar, AKA Abraham Villalba, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued August 2, 2016

          Submitted November 1, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-979-428.

          Patrick F. Valdez (argued), Valdez Law Firm, Inglewood, California, for Petitioner.

          Sergio Sarkany (argued), Trial Attorney; Kiley Kane, Senior Litigation Counsel; United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

         SUMMARY[*]

         Immigration

         The panel granted Abraham Villalba Saldivar's petition for review of the Board of Immigration Appeals' decision holding that Saldivar was statutorily ineligible for cancellation of removal for failure to establish seven years continuous residence in the United States after being "admitted in any status, " and vacated and remanded.

         For the purposes of the appeal, the panel assumed that Saldivar was "waved through" at a port of entry, and reaffirmed that an alien is "admitted" when he presents himself for inspection and is waved through a port of entry. The panel held that the term "in any status" plainly encompasses every status recognized by immigration statutes, lawful or unlawful. The panel therefore concluded that Saldivar was statutorily eligible for cancellation of removal because he established continuous residence in the United States for more than seven years after his admission.

         Dissenting, Judge Kozinski wrote that the majority defies structure, precedent and common sense by interpreting immigration status to mean both lawful and unlawful status. Judge Kozinski concluded that the only sensible way to read the term status is to refer to one of several specific lawful categories, and that the majority creates an intra-circuit conflict with Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir. 1973), where the court explained that "mistaken admission conferred no status, permanent resident or otherwise." Further, Judge Kozinski wrote that if any doubt remains about the meaning of status, the court should defer under Chevron to the BIA's interpretation.

          OPINION

          REINHARDT, Circuit Judge

         Abraham Villalba Saldivar ("Saldivar"), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals ("BIA"). In an unpublished, single-member decision, the BIA held that he was statutorily ineligible for cancellation of removal because he could not establish seven years of continuous residence in the United States after having been "admitted in any status." 8 U.S.C. § 1229b(a)(2). Saldivar was "admitted" in 1993 when he was waved across the border after inspection by an immigration officer. Therefore, we must address only whether this "admission" was "in any status." Because the phrase "in any status" plainly encompasses every status recognized by immigration statutes, lawful or unlawful, we hold that Saldivar's procedurally regular admission in 1993 was an admission in any status under § 1229b(a)(2) and grant his petition for review.

         FACTUAL AND PROCEDURAL BACKGROUND

         Saldivar entered the United States in 1993 as a ten-year-old child when he was "waved through inspection" by an officer at the port of entry in San Ysidro, California. In 2001, Saldivar married Desiree Luzano, a United States citizen. The couple has three children, who are also U.S. citizens. On October 11, 2006, Saldivar adjusted his status to lawful permanent resident ("LPR"). About six years later, on September 25 and 26, 2012, he was convicted in California Superior Court of possession of methamphetamine and possession of paraphernalia used for smoking a controlled substance.

         On November 1, 2012, the U.S. Department of Homeland Security served Saldivar with a Notice to Appear, alleging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) as a noncitizen convicted of a controlled substance violation. At Saldivar's hearing, the Immigration Judge ("IJ") found that the charge in the Notice to Appear was proven by clear and convincing evidence, rendering him removable.

         Saldivar applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a). Before conducting a hearing on the application for cancellation of removal, the IJ ordered the parties to submit briefs addressing whether Saldivar was statutorily eligible for that form of relief. Based on the written submissions, and without taking any evidence or testimony as to whether Saldivar was in fact "waved through the border" in 1993, the IJ determined that he was ineligible for cancellation of removal as a matter of law. He reasoned that even if Saldivar had been waved through in 1993, he still could not establish the requisite seven years of continuous residence in the United States after being "admitted in any status" under § 1229b(a)(2). According to the IJ, Saldivar's "procedurally correct inspection and admission" in 1993 could not be considered an admission "in any status" because "mistaken admissions do not confer a status, either permanent or otherwise." Nor could Saldivar rely on his LPR status to satisfy the seven-year continuous residency requirement: his controlled substance violation cut off his period of continuous residence approximately six years after he adjusted his status to LPR.

         The BIA affirmed the IJ's decision. It rejected Saldivar's argument that he was "admitted in any status" in 1993 when he was waved across the border. Relying on In re Blancas-Lara, 23 I. & N. Dec. 458, 460 (BIA 2002), the BIA concluded that an "admission with procedural regularity, " such as being waved through the border by an immigration officer, "is not tantamount to admission 'in any status, ' either immigrant or nonimmigrant." Therefore, it held, Saldivar could not establish continuous residence for seven years after ...


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