immigration judge and BIA held that neither grant of TPS nor adjustment to LPR were “admissions” of noncitizen seeking to avoid removal under § 1229b(a)
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- immigration judge and BIA held that neither grant of TPS nor adjustment to LPR were “admissions” of noncitizen seeking to avoid removal under § 1229b(a)
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The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2349
MARIA LUISA CHAVEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 12, 2014 Decided: October 8, 2014
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Kristina M. Campbell, Emily C.T. Ngara, UNIVERSITY OF THE
DISTRICT OF COLUMBIA, Washington, D.C., for Petitioner. Stuart
F. Delery, Assistant Attorney General, Civil Division, Terri J.
Scadron, Assistant Director, Anthony W. Norwood, Senior
Litigation Counsel, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maria Luisa Chavez, a native and citizen of El Salvador,
petitions for review of a decision by the Board of Immigration
Appeals (BIA) finding her statutorily ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a). For the
following reasons, we deny her petition.
I.
Chavez entered the United States without inspection in July
1989. In 1992, Chavez was granted Temporary Protective Status
(TPS) because of the ongoing armed conflict in El Salvador. 1
Chavez remained in the United States, eventually adjusting her
status in 2006 to Legal Permanent Resident (LPR). Later in 2006,
after receiving her LPR status, Chavez traveled to El Salvador
to visit family and reentered the United States on November 19.
On December 4, 2007, Chavez was convicted of petit larceny,
in violation of Va. Code § 18.2-96. Due to this conviction,
Immigration and Customs Enforcement placed Chavez in removal
proceedings for committing a crime involving moral turpitude.
See 8 U.S.C. § 1227(a)(2)(A)(i). Chavez moved to cancel removal
1
The TPS program permits aliens to remain in the United
States if their home country is in a state of upheaval due to an
ongoing armed conflict, a natural disaster, or a similar event.
An individual granted TPS is not subject to removal and is
authorized to work in the United States. 8 U.S.C. §
1254a(a),(b).
2
under 8 U.S.C. § 1229b(a), 2 and had her case adjudicated by an
Immigration Judge (IJ). The IJ held that Chavez was statutorily
ineligible for cancellation of removal because she was not
“admitted” until she returned to the country after receiving LPR
status in November 2006. Because the parties agreed that
Chavez’s “stop time” date 3 was October 14, 2007 — the date she
committed the offense underlying her petit larceny conviction —
she had only one year of continuous residence after her
admission. Accordingly, the IJ held she could not show that she
had “resided in the United States continuously for 7 years” and
was statutorily barred from cancelling her removal. 4
Chavez timely appealed to the BIA, which affirmed in a
single-judge order. The BIA found that Chavez had not been
“admitted” until November 2006 and that she thus failed §
1229b(a)(2)’s residence requirement. The BIA specifically
rejected Chavez’s argument that she was “admitted” when she
2
The statute provides for cancellation of removal if the
alien (1) has been lawfully admitted for permanent residence for
not less than 5 years; (2) has resided in the United States
continuously for 7 years after having been admitted in any
status; and (3) has not been convicted of any aggravated felony.
3
The stop time rule of 8 U.S.C. § 1229b(d)(1) provides that
the continuous residence requirement for cancellation of removal
stops on the date of the offense giving rise to removal.
4
The IJ further noted that, if Chavez was not statutorily
ineligible, it would have used its discretion to grant Chavez’s
cancellation request.
3
received TPS in 1992, explaining that “a grant of TPS does not
involve the lawful entry of an alien into the United States” and
is thus “not an admission for purposes” of the statute. (J.A. 4)
(internal quotation marks omitted).
II.
In her petition for review, Chavez argues: (1) that she was
“admitted in any status” when she was granted TPS; and (2) that,
under § 1254a(e), she does not have to show that she was
“admitted” to satisfy the residency requirement. We address each
in turn, reviewing the BIA’s legal conclusions—including
questions of statutory interpretation—de novo. Bracamontes v.
Holder, 675 F.3d 380, 384 (4th Cir. 2012). “When interpreting
statutes we start with the plain language.” U.S. Dep’t of Labor
v. N.C. Growers Ass’n, 377 F.3d 345, 350 (4th Cir. 2004). “It is
well established that when the statute’s language is plain, the
sole function of the courts-at least where the disposition
required by the text is not absurd-is to enforce it according to
its terms.” Lamie v. United States Tr., 540 U.S. 526, 534 (2004)
(internal quotation marks omitted).
Section 1229b(a) provides for “[c]ancellation of removal
for certain permanent residents” if the alien has, inter alia,
“resided in the United States continuously for 7 years after
having been admitted in any status.” 8 U.S.C. § 1229b(a)(2). The
BIA determined that Chavez was ineligible for cancellation of
4
removal under § 1229b(a)(2) because she had not been “admitted
in any status” until November 2006. We agree.
In Bracamontes, we addressed whether, under the Immigration
and Naturalization Act, the terms “admission” and “admitted”
included an adjustment of status. We began by finding the
statutory language unambiguous, noting that “‘[a]dmission’ and
‘admitted’ are defined as ‘with respect to an alien, the lawful
entry of the alien into the United States after inspection and
authorization by an immigration officer.’” Bracamontes, 675 F.3d
at 385 (quoting 8 U.S.C. § 1101(a)(13)(A)). This definition, we
continued, did not include an adjustment of status, because an
adjustment of status involved paperwork, not a physical border
crossing coupled with an inspection. Id. at 385-86. That is,
“both [admission and admitted] contemplate a physical crossing
of the border following the sanction and approval of United
States authorities.” Id. at 385.
Applying Bracamontes, we agree with the BIA that Chavez
cannot show that she was “admitted in any status” until November
2006, when she returned to the United States with LPR status.
Chavez’s grant of TPS in 1992 does not constitute an admission.
TPS is a status granted to residents of certain nations who are
already in the United States but cannot return to their nation.
8 U.S.C. § 1254a(a). An alien cannot be admitted to the United
States with TPS. Id. § 1254a(c)(5). Thus, Chavez’s grant of TPS
5
in 1992 is not an admission under Bracamontes because it did not
involve a physical border crossing coupled with inspection by
immigration officials.
In the alternative, Chavez contends that she does not have
to show that she was “admitted” to trigger the residency
requirement because § 1254a(e) sets forth a separate requirement
for aliens with TPS. Section 1254a(e) explains that the period
of TPS “shall not be counted as a period of physical presence in
the United States for purposes of § 1229b(a) of this title,
unless . . . extreme hardship exists.” 8 U.S.C. § 1254a(e).
Chavez argues that, if TPS is not an admission under §
1229b(a)(2), § 1254a(e) is rendered superfluous—the ability to
count the TPS years upon a showing of extreme hardship is a
hollow one if the alien can never show she was admitted. See
Duncan v. Walker, 533 U.S. 167, 174 (2001) (admonishing that a
court should avoid a statutory interpretation that renders any
“clause, sentence, or word . . . superfluous, void, or
insignificant”) (internal quotation marks omitted).
Unfortunately for Chavez, § 1229b(a) and § 1254a(e) can be
read together. Chavez assumes that, because aliens are only
granted TPS after entering the United States, aliens with TPS
will never be able to establish that they were “admitted in any
status.” Chavez overlooks the fact, however, that aliens can
enter the United States with status, but later be granted TPS
6
once they are in the United States. See Nelson v. Att’y Gen.,
685 F.3d 318, 323 (3d Cir. 2012) (noting “‘in any status’ phrase
could show congressional recognition that an alien may initially
be admitted to the United States in some other status (e.g. on a
student visa)”). For example, a student could enter on an F-1
student visa (a lawful status). That student will be “admitted
in any status,” because he will have used the visa to cross the
border and be inspected and authorized by immigration officials.
The student can then be granted TPS once he is in the United
States. In this example, because the student can show that he
was “admitted in any status,” upon a showing of extreme
hardship, the student could use his time in TPS to satisfy the
residency requirement. Because the statutes can thus be read in
harmony, we reject Chavez’s interpretation of § 1254a(e), which
removes the “admitted in any status” requirement from §
1229b(a)(2). FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000) (explaining that courts should endeavor to
“interpret [each] statute as a symmetrical and coherent
regulatory scheme,” and “fit, if possible, all parts into an
harmonious whole”) (internal quotation marks omitted).
Accordingly, to be eligible for cancellation of removal,
Chavez must show seven years of continuous residence in the
United States after being “admitted in any status.” In this
case, Chavez was admitted in November 2006 and her stop time
7
date is in October 2007, leaving her short of the required seven
years. The BIA correctly found that she was ineligible for
cancellation of removal.
III.
For the foregoing reasons, we deny the petition for review.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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