Tuesday, July 25, 2006
Court Says Alien Admitted Into Family Unity Program Eligible For Cancellation of Removal
By a MetNews Staff Writer
An alien who has been accepted into the Family Unity Program, and meets other requirements, is eligible for cancellation of removal, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court reversed the Board of Immigration Appeals’ determination that FUP beneficiary status does not render one “admitted in any status,” a requirement for cancellation of removal.
Pedro Garcia-Quintero, a Mexican citizen, illegally entered the United States and has resided here for 20 years. His wife and four children are legal permanent residents and he has several grandchildren who are citizens.
He has no criminal record.
In 1993, Garcia-Quintero was accepted into the Family Unity Program, which provides protection from deportation and the right to work in the United States for qualified alien spouses of certain legalized aliens. The FUP is designed to help families stay together while the beneficiaries adjust to LPR status.
Garcia-Quintero extended his status as an FUP beneficiary in 1995, and became an LPR in 1998. In June 2001, Garcia-Quintero received a notice to appear in removal proceedings, which charged him with aiding his goddaughter to enter the country illegally by presenting false documents to the immigration inspector.
Garcia-Quintero argued that he was eligible for cancellation of removal because he was “admitted in any status” in 1993 when he was admitted into the FUP, and thus, when he received the notice to appear in 2001, he had been living in the country continuously for seven years after being “admitted in any status.”
The immigration judge and the BIA held that Garcia-Quintero did not meet the requirement of continuously residing in the United States for seven years after having been “admitted in any status.”
Noting that the Immigration and Nationality Act defines “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” the BIA held that Garcia-Quintero’s admission into the FUP did not constitute his admission into this country.
But Judge Richard A. Paez, writing for the Ninth Circuit, said he found the BIA’s reasoning “unpersuasive,” noting that the courts have found aliens to have been admitted without meeting the act’s strict definition in other instances.
“The BIA’s analysis suffers fatally from its limited reading of ‘admitted’—a constraint which it has not applied in other decisions,” Paez said.”
Noting that an FUP beneficiary may travel outside the country, and upon returning the regulations interpreting that act provide that the beneficiary “shall be inspected and admitted in the same immigration status as the alien had at the time of departure,” Paez reasoned that the regulation presupposes that FUP beneficiaries have an “immigration status.”
Judge Susan P. Graber, concurring in part and dissenting in part, said it was “reasonable” and “persuasive” for the BIA to rely on the act’s definition of “admitted.”
“I do not suggest that the majority’s interpretation of this ambiguous statute is wholly untenable, and I am sympathetic to the majority’s desire for generosity toward aliens who reside, with their families, within our borders,” Graber said.
“But, in my view, the BIA’s interpretation more faithfully represents the law that Congress decided to enact.”
The case is Garcia-Quinteros v. Gonzales, 03-73930
Copyright 2006, Metropolitan News Company