Garcia v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE RAUL GARCIA, 

Petitioner, No. 08-73004

v.

 Agency No.

A072-897-225

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

August 30, 2011—Pasadena, California

Filed November 2, 2011

Before: Mary M. Schroeder and Ronald M. Gould,

Circuit Judges, and Richard Seeborg, District Judge.*

Opinion by Judge Gould

*The Honorable Richard Seeborg, United States District Judge for the

Northern District of California, sitting by designation.

19835

19838 GARCIA v. HOLDER

COUNSEL

Kristen Jackson, Public Counsel Law Center, Los Angeles,

California, for the petitioner-appellant.

David H. Wetmore and Robbin Kinmonth Blaya, Office of

Immigration Litigation, Washington, D.C., for the

respondent-appellee.

OPINION

GOULD, Circuit Judge:

Jorge Raul Garcia (“Garcia”) petitions for review of the

Board of Immigration Appeals’s (“BIA”) dismissal of his

appeal of an Immigration Judge’s (“IJ”) decision denying his

application for cancellation of removal. The BIA concluded

that Garcia’s 1992 parole as a Special Immigrant Juvenile,

under 8 U.S.C. § 1255(h), did not qualify as an admission “in

any status” as required by 8 U.S.C. § 1229b(a)(2) and, as a

result, found Garcia statutorily ineligible for cancellation of

removal because he did not establish seven years of continu-

ous physical presence after having been “admitted in any sta-

tus.” We disagree and hold that parole as a Special Immigrant

Juvenile, under 8 U.S.C. § 1255(h), qualifies as an admission

“in any status” for the purposes of 8 U.S.C. § 1229b(a)(2).

We grant Garcia’s petition and remand to the BIA for further

proceedings consistent with our opinion.

I

A

Garcia was born in Mexico in 1984 to Mexican citizen par-

ents. Garcia had a difficult and tragic childhood in Mexico.

His father was incarcerated for murdering his mother, and in

GARCIA v. HOLDER 19839

his youth Garcia suffered a closed head injury, a type of trau-

matic brain injury. Garcia entered the United States without

inspection in 1992 and soon thereafter entered the foster care

system in California. His long-term social worker described

him as “respectful” and “good hearted.” Garcia was diag-

nosed with bi-polar disorder while in foster care. He went to

special education classes in school. He has been diagnosed

with diabetes and assessed as having “low-average” intelli-

gence. Garcia was emancipated from the foster care system in

2004 at the age of 20. He has a U.S. citizen child.

In April 1993, when Garcia was nine years old, the Los

Angeles County Department of Children and Family Services

(“DCFS”) filed a petition with the state juvenile dependency

court on behalf of Garcia because of allegations of severe

physical abuse. On July 15, 1994, the court found Garcia a

dependant child of the court, eligible for long-term foster

care. The court also found “that it would not be in the best

interests of the minor to be returned to his/her country of citi-

zenship or the country of habitual residence of his/her par-

ents.” The court ordered that the DCFS “make the necessary

application for special immigrant status as a permanent resi-

dent for [Garcia].”1 That month, DCFS’s Special Immigrant

Status Unit filed an immigration application on Garcia’s

behalf. The application included, inter alia, an I-360 Petition

for classification as a special immigrant and an I-485 Applica-

tion for adjustment to permanent resident status, based on

Garcia’s being an undocumented foster child/Special Immi-

grant Juvenile.

1

Under 8 U.S.C. § 1101(a)(27)(J), an immigrant is eligible for Special

Immigrant Juvenile Status if: (i) he has been declared dependent on a juve-

nile court and has been deemed eligible for long-term foster care due to

abuse, neglect, or abandonment; (ii) it has been determined in administra-

tive or judicial proceedings that it would not be in the child’s best interest

to be returned to his country of nationality or residence; and (iii) the Sec-

retary of Homeland Security expressly consents to the dependency order

serving as a precondition to the grant of special immigrant status. Garcia

was eligible for the Special Immigrant Juvenile Status.

19840 GARCIA v. HOLDER

On February 28, 2000, the immigration authorities

approved Garcia’s I-360 Petition and I-485 Application and

gave him Legal Permanent Resident (“LPR”) status. It took

more than five years for Garcia’s LPR status to be approved.

A likely source for that delay may have been his missing birth

certificate which was added to Garcia’s file in April 1999.

Garcia’s I-181 Memorandum of Creation of Record of Lawful

Permanent Residence, reflecting his approval for LPR status,

lists “92” in the field “Year Adm[itted] to U.S. or Year of

Change to present [Non-Immigrant] Class.”

B

Garcia was arrested on November 13, 2005, for stealing a

bicycle in Long Beach, California. The city prosecutor

charged him with a misdemeanor for grand theft of property

worth over $400, to which Garcia pleaded nolo contendere.

See Cal. Penal Code § 487(a) (2005). Garcia was found guilty

and received a suspended sentence of three years of summary

probation and twenty days in county jail. On December 28,

2005, Garcia was arrested for shoplifting from a Target store

in Manhattan Beach, California. Garcia was charged with

petty theft with prior convictions, and with giving false infor-

mation to a police officer. See Cal. Penal Code §§ 666,

148.9(a) (2005). He pleaded guilty to the theft charge, for

which he received a suspended sentence of three years of for-

mal probation and almost one year in county jail. The false

information charge was dismissed.

Relying on these two convictions, in October 2006, the

Department of Homeland Security (“DHS”) issued a Notice

to Appear (“NTA”) charging that Garcia was removable, pur-

suant to 8 U.S.C. § 1227(a)(2)(A)(ii), for having, after admis-

sion, been convicted of two crimes involving moral turpitude

not arising out of a single scheme of criminal misconduct.

Garcia admitted to the allegations in the NTA, conceded

removability, and sought cancellation of removal.

GARCIA v. HOLDER 19841

An LPR is eligible for cancellation of removal if: (1) he has

been “lawfully admitted for permanent residence for not less

than 5 years”; (2) he “has resided in the United States contin-

uously for 7 years after having been admitted in any status”;

and (3) he “has not been convicted of any aggravated felony.”

8 U.S.C. § 1229b(a). DHS opposed cancellation of removal

on the ground that Garcia lacked the required seven years of

continuous residence. Under the government’s interpretation,

the seven-year period ran from when Garcia received LPR

status in 2000. Nearly six years had lapsed between when the

California juvenile dependency court ordered DCFS’s Special

Immigrant Status Unit to file an immigration petition for Gar-

cia in 1994, and when immigration authorities ultimately

approved the petition. The government’s interpretation did not

credit any of that lapsed time, leaving Garcia narrowly short

of the required seven years when he was convicted for the

second theft offense in January 2006.

Garcia argued that he met the seven-year duration require-

ment on two separate grounds. First, Garcia contended that,

under § 1255(h), he was deemed paroled into the United

States—which counted as an admission “in any status” under

§ 1229b(a)(2)—upon the filing of his Special Immigrant Juve-

nile Status (“SIJS”)-based immigration application in 1994,

more than seven years before his second conviction. Second,

he contended that his “admission” for permanent resident sta-

tus could be imputed as of the date on which he became a

ward of the State of California, his legal guardian, in the same

way that such admission is imputed from a parent under

Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir.

2005) (holding that “for purposes of satisfying the seven-

years of continuous residence ‘after having been admitted in

any status’ required for cancellation of removal under 8

U.S.C. § 1229b(a), a parent’s admission for permanent resi-

dent status is imputed to the parent’s unemancipated minor

children residing with the parent”). The IJ rejected these argu-

ments and denied cancellation of removal solely on the basis

19842 GARCIA v. HOLDER

that Garcia did not have the required seven years of continu-

ous residence.

The BIA affirmed. It reasoned that § 1255(h) provided that

a Special Immigrant Juvenile is deemed to have been “pa-

roled” into the United States for the purpose of adjustment of

status, but that, under the plain language of § 1255(a), which

permits the Attorney General to adjust the status of individu-

als who have been “inspected and admitted or paroled,” being

“paroled” into the United States is not the same as being “ad-

mitted.” It also declined to extend the holding of our prece-

dent in Cuevas-Gaspar to cover the legal guardianship

between the State and its ward, concluding that such a rela-

tionship is materially distinguishable from that between par-

ents and children. The BIA dismissed Garcia’s appeal, and

Garcia was removed to Mexico. Garcia petitions for a review

of the BIA’s decision.

II

The issues on review are (1) whether Garcia’s SIJS-based

parole for adjustment of status under § 1255(h) constitutes an

admission “in any status” for purposes of eligibility for can-

cellation of removal under § 1229b(a)(2), and (2) whether

Garcia should be imputed lawful admission from his legal

guardian, the State of California. We “review de novo the

BIA’s determination of questions of law, except to the extent

that deference is owed to its interpretation of the governing

statutes and regulations.”2 Garcia-Quintero v. Gonzales, 455

F.3d 1006, 1011 (9th Cir. 2006).

2

The Government incorrectly states that the BIA’s conclusion that Gar-

cia did not establish the necessary seven years of continuous residence is

a factual finding reviewed for substantial evidence. As Garcia correctly

suggests in his reply brief, there are no disputed facts to be reviewed for

substantial evidence; only the legal significance of the undisputed facts is

at issue.

GARCIA v. HOLDER 19843

Where the statute is unambiguous and congressional intent

is clear “both the court and the agency must give effect to the

unambiguously expressed intent of Congress.” Id. at 1012

(quoting Chevron U.S.A. Inc. v. Natural Resources Def.

Council, 467 U.S. 837, 843-44 (1984) (internal quotation

marks omitted)). Where congressional intent is unclear, a

reviewing court must give deference to an agency’s statutory

interpretation provided it is not “arbitrary, capricious, or man-

ifestly contrary to the statute.” Chevron, 467 U.S. at 844.

“Chevron deference, however, does not apply to all statutory

interpretations issued by agencies.” Miranda Alvarado v.

Gonzales, 449 F.3d 915, 921 (9th Cir. 2006). An agency’s

statutory interpretation only “qualifies for Chevron deference

when it appears that Congress delegated authority to the

agency generally to make rules carrying the force of law, and

that the agency interpretation claiming deference was promul-

gated in the exercise of that authority.” United States v. Mead

Corp., 533 U.S. 218, 226-27 (2001).

“It is well-established that Congress delegated to the BIA

the authority to promulgate rules, on behalf of the Attorney

General, that carry the force of law ‘through a process of

case-by-case adjudication.’ ” Garcia-Quintero, 455 F.3d at

1012 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999)). We give Chevron deference to BIA decisions that are

issued under a “lawmaking pretense,” a term borrowed from

the Supreme Court’s decision in Mead, 533 U.S. at 233, capa-

ble of binding third parties. Garcia-Quintero, 455 F.3d at

1012 (citing Miranda Alvarado, 449 F.3d at 922). We have

previously held, however, that BIA “interpretations promul-

gated in a non-precedential manner” do not carry the force of

law and are not subject to Chevron deference. Id. at 1012.

Because the BIA’s decision under review here is a single-

member unpublished decision, we do not give it Chevron def-

erence because the “authority to make rules with force of law

. . . was not invoked.” Mead, 533 U.S. at 237; see also

Garcia-Quintero, 455 F.3d at 1013 (quoting 8 C.F.R.

§ 1003.1(g) for the proposition that “only ‘selected decisions

19844 GARCIA v. HOLDER

of the [BIA] rendered by a three-member panel or by the

[BIA] en banc may be designated to serve as precedents’ ”).

Stated another way, if the BIA wants its decisions to be given

Chevron deference, it must decide with a three-judge panel or

en banc. An unpublished decision of a single board member

is not entitled to Chevron deference.

But that does not end our consideration of whether defer-

ence to the BIA’s decision is appropriate here. For even when

Chevron deference is unwarranted because of the nature of

the decision, we may accord deference under Skidmore v.

Swift & Co., 323 U.S. 134 (1944). Mead, 533 U.S. at 237.

Pursuant to Skidmore, a reviewing court “may properly

resort” to an agency’s interpretations and opinions “for guid-

ance,” as they constitute “a body of experience and informed

judgment.” Skidmore, 323 U.S. at 140. “The weight of such

a judgment in a particular case will depend upon the thor-

oughness evident in its consideration, the validity of its rea-

soning, its consistency with earlier and later pronouncements,

and all those factors which give it power to persuade, if lack-

ing power to control.” Id. Where the BIA’s decision does not

give thorough reasoning, but instead is conclusory or lacks

meaningful analysis, we give that decision only limited defer-

ence. See Guevara v. Holder, 649 F.3d 1086, 1091 (9th Cir.

2011); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101

n.4 (9th Cir. 2011).

With these principles in mind, we consider the BIA’s con-

clusion that parole as a Special Immigrant Juvenile under

§ 1255(h) does not qualify as an admission “in any status” for

the purposes of eligibility for cancellation of removal under

§ 1229b(a).

III

A

The BIA dismissed Garcia’s appeal on the basis that (1)

under the plain language of the Immigration and Nationality

GARCIA v. HOLDER 19845

Act, being “paroled” into the United States is not the same as

being “admitted,” and that (2) Garcia had not otherwise per-

suaded it that his initial parole into the United States qualified

as an admission. This analysis was conclusory and did not

take into account that both we and the BIA have construed

“admitted in any status” as being broader than the statutorily-

defined term “admitted.” Nor did the BIA engage in a mean-

ingful analysis to support its conclusion that SIJS-parolees are

not admitted for the purposes of § 1229b(a)(2). Given its sum-

mary nature, the BIA’s analysis does not merit significant def-

erence. See Vasquez de Alcantar, 645 F.3d at 1101 n.4 (“We

afford little deference under Skidmore to the BIA’s analysis

in the present case, because it did not provide thorough rea-

soning and is conclusory.”). We next address what we con-

sider to be the controlling legal principles.

B

[1] The phrase “admitted in any status” is not defined in

the Immigration and Nationality Act (“INA”). The INA does,

however, define “admission” and “admitted” to mean “the

lawful entry of [an] alien into the United States after inspec-

tion and authorization by an immigration officer.” 8 U.S.C.

§ 1101(a)(13)(A). “This definition is clear and unambiguous

. . . [and] we need not defer to the BIA with regard to the

meaning of this term.” Vasquez de Alcantar, 645 F.3d at

1100. There is no dispute here that Garcia was not admitted

within the meaning of § 1101(a)(13)(A). See 645 F.3d at

1101.

[2] We have previously concluded, however, that “there

are instances where an alien is ‘admitted,’ for the purposes of

§ 1229b(a)(2), without having been inspected and authorized

to enter the United States at the border.” Garcia-Quintero,

455 F.3d at 1016; see also Matter of Rosas-Ramirez, 22 I. &

N. Dec. 616, 618 (BIA 1999) (declining to find “that refer-

ence to the definition of ‘admission’ and ‘admitted’ in

[§ 1101](a)(13)(A) adequately answers the question of the

19846 GARCIA v. HOLDER

intended scope of the term ‘admission’ in section

237(a)(2)(A)(iii)”). “[T]he clause ‘in any status’ has been

interpreted to create alternative methods for aliens, who do

not enter after inspection and authorization, to meet the

‘admitted in any status’ requirement of § 1229b(a)(2).”

Vasquez de Alcantar, 645 F.3d at 1100 (citing Cuevas-

Gaspar, 430 F.3d at 1029); see also, e.g., Garcia-Quintero,

455 F.3d at 1009 (holding that Garcia-Quintero’s “acceptance

into the Family Unity Program render[ed] him ‘admitted in

any status’ for the purposes of cancellation of removal”). This

brings us to the dispositive issue: We must decide whether

SIJS-parolees may be considered as having been “admitted in

any status” within the meaning of § 1229b(a)(2). If so, then

Garcia’s tenure of continuous residency is sufficient for eligi-

bility to be considered for cancellation of removal. If not, then

he is statutorily out of luck and without possible recourse to

cancellation of removal.

1

The Government argues that SIJS-parolees are not “admit-

ted in any status” under § 1229b(a)(2) because the plain lan-

guage of the INA shows that parole is different from

admission. The government points to the language of

§ 1101(a)(13)(B), which provides that “[a]n alien who is

paroled under [§ 1182(d)(5)3] . . . shall not be considered to

3

This section states:

(A) The Attorney General may, except as provided in subpara-

graph (B) or in section 1184(f) of this title, in his discretion

parole into the United States temporarily under such conditions

as he may prescribe only on a case-by-case basis for urgent

humanitarian reasons or significant public benefit any alien

applying for admission to the United States, but such parole of

such alien shall not be regarded as an admission of the alien and

when the purposes of such parole shall, in the opinion of the

Attorney General, have been served the alien shall forthwith

return or be returned to the custody from which he was paroled

GARCIA v. HOLDER 19847

have been admitted,” to support its argument that no parolee

may qualify as being “admitted in any status.”

The government’s position is correct to a degree, but is not

persuasive because it does not take into account all of the per-

tinent statutory language. Garcia was “deemed . . . to have

been paroled” under § 1255(h)(1), not paroled under

§ 1182(d)(5). Circuit and BIA precedent establish that, in the

immigration context, not all paroles are treated equally. The

definition, scope, and the consequences of parole may vary

based on the wording and placement of a particular statutory

provision. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111,

1116 (9th Cir. 2007) (holding that “conditional parolees”

under § 1226(a) are not “paroled into the United States”

within the meaning of § 1182(d)(5)(A)); Matter of Castillo-

Padilla, 25 I. & N. Dec. 257, 258 (BIA 2010) (holding that

“conditional parole” under § 1226(a)(2)(B) is a “distinct and

different procedure” from “parole” under § 1182(d)(5)(A)).

[3] Parole under § 1255(h)(1) is different from parole

under § 1182(d)(5). The plain language of § 1255(h) does not

indicate that SIJS-parolees shall be considered paroled under

§ 1182(d)(5), nor that SIJS-parolees shall receive a parole

card pursuant to § 1182(d)(5), as required by regulation. 8

C.F.R. § 235.1(h)(2); see Ortega-Cervantes, 501 F.3d at 1116

(finding “no indication that the government intended to parole

Ortega-Cervantes into the United States pursuant to

§ 1182(d)(5)(A)” where the government did not “make[ ] its

and thereafter his case shall continue to be dealt with in the same

manner as that of any other applicant for admission to the United

States.

(B) The Attorney General may not parole into the United

States an alien who is a refugee unless the Attorney General

determines that compelling reasons in the public interest with

respect to that particular alien require that the alien be paroled

into the United States rather than be admitted as a refugee under

section 1157 of this title.

19848 GARCIA v. HOLDER

intention clear, for example, by expressly referencing

§ 1182(d)(5)(A) and by issuing an I-94 card.”). That the INA

provides that those paroled under § 1182(d)(5) “shall not be

considered to have been admitted,” then, does not speak

clearly, if at all, to whether Garcia as a SIJS-parolee may be

considered to have been “admitted in any status” under

§ 1229b(a).

[4] Congress did not include SIJS-parolees in its express

preclusion of § 1182(d)(5) parolees from admission eligibil-

ity. Under the doctrine of expressio unius est exclusio

alterius, the statute’s express preclusion of parolees under

§ 1182(d)(5) from admission, while remaining silent on the

admission status of other parolees, could indicate that Con-

gress intended not to preclude non-specified parolees from

being considered to be admitted. See Washington v. Chu, 558

F.3d 1036, 1044 (9th Cir. 2009) (“[W]here Congress includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” (quoting Beach v. Fed. Bank, 523

U.S. 410, 418-19 (1998) (internal quotation marks omitted)

(emphasis omitted))). In this light, the precedents provided by

the Government to show that parolees are more widely barred

from being considered to have been admitted are unpersuasive

because they stem from cases specifically involving parole

under § 1182(d)(5) or from former phrases within the immi-

gration code; none of them explicitly discusses SIJS-based

parole, and so none is very helpful on the issue presented to

us.

[5] We conclude then that SIJS-based parolees are not

expressly barred by Congress from being considered to have

been “admitted in any status,” and we next examine whether

SIJS-based parole qualifies as one of the “alternative methods

for aliens . . . to meet the ‘admitted in any status’ require-

ment” for cancellation of removal. Vasquez de Alcantar, 645

F.3d at 1101.

GARCIA v. HOLDER 19849

2

Garcia contends that his SIJS-based parole is soundly anal-

ogous to the DHS action in Garcia-Quintero that we held

conferred admission “in any status” for the purposes of can-

cellation of removal. He contends that case law and legislative

purpose support a conclusion that his SIJS-based parole was

also an admission “in any status.”

[6] In Garcia-Quintero, we concluded that Garcia-

Quintero’s acceptance into the Family Unity Program

(“FUP”) rendered him “admitted in any status” for purposes

of eligibility for cancellation of removal under § 1229b(a)(2).

455 F.3d at 1009. We reasoned that acceptance into the pro-

gram gave unique benefits for a narrow group of aliens,

including protection from deportation and authorization to

work, and was “designed to help families stay together while

the beneficiaries adjust to LPR status.” Id. at 1009-10. Evalu-

ating extant BIA precedent on the meaning of “in any status,”

we there concluded that the “limited benefits and protections”

of the FUP gave its beneficiaries a status. Id. at 1018. We

took note that the section of the FUP regulations governing

travel outside of the United States included the terms “status”

and “admitted.” Id.

Since then we have twice considered aliens’ requests to

extend the holding of Garcia-Quintero to other situations, and

our opinions declining to do so have refined the criteria neces-

sary to conclude that a DHS action creates an alternative

method for an alien to meet the “admitted in any status”

requirement. In Vasquez de Alcantar, we held that neither the

filing nor the approval of an alien’s Form I-130 Petition for

Alien Relative, which allows him to apply for adjustment of

status, creates an alternative method of admission. 645 F.3d

at 1102. We also rejected the analogy between I-130 petitions

and acceptance into the FUP. Id. at 1103-4. We stressed, first,

that FUP beneficiaries are distinct from I-130 visa petition

beneficiaries because FUP participants “are provided congres-

19850 GARCIA v. HOLDER

sionally mandated benefits,” including protection from depor-

tation and employment authorization, and “must meet

additional requirements for eligibility.” Id. at 1104. We

observed, second, that the FUP had exclusions from eligibility

inapplicable to I-130 beneficiaries. Id. at 1105. We noted,

third, that the FUP regulations gave beneficiaries under the

program an “immigration status” by authorizing travel outside

the United States, whereas “admission status connected to

advanced parole for other adjustment of status applicants is

specifically precluded by 8 U.S.C. § 1182(d)(5)(A).” Id.

Fourth, we considered it relevant that Congress had clarified

the extra protection afforded to FUP beneficiaries in subse-

quent statutory enactments. Id. at 1106. Based on these fac-

tors, we concluded that, by enacting the FUP, Congress

“provided mandatory protections and benefits to a distinct

group of aliens while they await adjustment of status.” Id.

However, the case law, statutes, and regulations governing

Form I-130 petitioners “d[id] not support a holding that bene-

ficiaries of approved I-130 visa petitions should be given

admission status.” Id.

In an opinion filed the same day as Vasquez de Alcantar,

we similarly concluded that employment authorization does

not create an alternative method for an alien to meet the “ad-

mitted in any status” requirement. Guevara, 649 F.3d at 1094.

In so holding, we reasoned that “the FUP was enacted by

Congress to assist a very narrow group of aliens” and set forth

heightened eligibility requirements. Id. at 1093. We noted that

the program’s purpose was “to prevent the separation of fami-

lies and to provide a means by which a qualifying family

member . . . could eventually apply for permanent residence

status.” Id. We clarified that Garcia-Quintero “was not based

upon the fact that FUP participants were allowed to work . . .

[but] instead focused on the aliens’ acceptance into the FUP.”

Id. at 1093-94. Employment authorization was more provi-

sional for Guevara than for FUP participants. Guevara

received authorization pending his application for adjustment

of status. See 8 C.F.R. § 274a.12(c)(9). Unlike other provi-

GARCIA v. HOLDER 19851

sions conferring authorization incident to preexisting status,

§ 274a.12(c) applies to aliens who “may or may not have any

legal status.” 649 F.3d at 1092. Employment authorization for

aliens in that residual category could be “terminated or

revoked at any time” for certain reasons. Id. We concluded

that there was no support “for concluding that Congress

intended to make a whole class of aliens (not inspected or

authorized) ‘admitted’ by the mere grant of an employment

authorization.” Id.

[7] Under the principles established in Garcia-Quintero

and the cases that have followed it, we perceive that SIJS-

based parolees are similarly situated to FUP participants and

qualify as having been “admitted in any status.” As is the case

for FUP participants, SIJS-parolees are a narrow class of juve-

nile aliens who must meet heightened eligibility requirements

to apply to be classified as a Special Immigrant Juvenile, and

SIJS-based parole affords particular benefits. To qualify for

SIJS, an alien must be declared to be a court dependant eligi-

ble for long-term foster care due to abuse, neglect, or aban-

donment, and a judge or administrative body must find that it

is not in the juvenile’s best interest to return to his country of

nationality. § 1101(a)(27)(J). The Secretary of Homeland

Security must also consent to the grant of SIJS. Id. Like FUP

beneficiaries, SIJS-based parolees gain special benefits set by

Congress. These include the permission to remain in the coun-

try pending the outcome of their adjustment of status applica-

tion, employment authorization, exemption from certain

inadmissibility grounds applicable to other aliens, and, under

amendments made after Garcia’s LPR application was pro-

cessed, expeditious adjudication of their LPR application. See

Miscellaneous and Technical Immigration and Naturalization

Amendments of 1991, Pub. L. No. 102-232, § 302, 105 Stat.

1733, 1744-45 (codified at § 1255(h)(2)(B)) (waiving certain

admissibility requirements); William Wilberforce Trafficking

Victims Protection Reauthorization Act of 2008, Pub. L. No.

110-457, § 235(d)(1)-(3), 122 Stat. 5044, 5079-80 (codified at

§§ 1101, 1255) (providing, inter alia, that the DHS must adju-

19852 GARCIA v. HOLDER

dicate SIJS applications “not later than 180 days after the date

on which the application is filed”).

[8] These special eligibility requirements and benefits

show a congressional intent to assist a limited group of abused

children to remain safely in the country with a means to apply

for LPR status. Such an intent, while not identical to that

involved in Garcia-Quintero, is analogous to Congress’s goal,

in enacting the FUP, of “prevent[ing] the separation of fami-

lies and [providing] a means by which a qualifying family

member . . . c[an] eventually apply for permanent residence

status.” Guevara, 649 F.3d at 1093 (discussing rationale

behind Garcia-Quintero’s holding). A Special Immigrant

Juvenile like Garcia does not have the same family to be kept

together that was involved in Garcia-Quintero, because the

state and foster homes are his family. But he was given simi-

lar special recognition and opportunity to make contacts in

this country, and for that reason should not be wrenched away

without adequate process. That Congress has subsequently

mandated expeditious adjudication of SIJS applications may

be viewed as a clarification by Congress that it does in fact

desire extra protection for SIJS-eligible minors. The Vasquez

de Alcantar court noted that similar subsequent statutory

enactments to the FUP were relevant to the holding in Garcia-

Quintero. 645 F.3d at 1106.

Congress’s extension of certain protections to FUP partici-

pants and SIJS parolees gives those narrow groups of aliens

strong claims to remain in this country. Our decisions in

Vasquez de Alcantar and Garcia emphasized that the much

broader groups of aliens who have filed I-130 petitions or

sought employment authorization are entitled only to a chance

to seek admission. Those groups have much weaker claims to

remain in this country. An I-130 petitioner seeks admission

and legal status, but is not entitled to it. Even an approved I-

130 petition is only an intermediate and contingent step

toward admission. See Vasquez de Alcantar, 645 F.3d at 1103

(citing Unites States v. Elrawy, 448 F.3d 309, 313-14 (9th Cir.

GARCIA v. HOLDER 19853

2006); Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.

2005)). Aliens seeking employment authorization under 8

C.F.R. § 274a.12(c) pending adjustment of status enjoy simi-

larly provisional benefits. Immigration authorities have dis-

cretion to grant or deny authorization, and may revoke an

earlier authorization for certain reasons not applicable here.

See Guevara, 649 F.3d at 1092 (citations omitted). Congress’s

decision to permit certain undocumented aliens to seek adjust-

ment of status “only confers the right to apply.” Id. at 1093.

For these groups of aliens, the completion of an intermediate

step toward admission does not render them “admitted in any

status.”

Subtle differences between the FUP and SIJS regulations

do not undermine our conclusion that SIJS-based parole is an

alternative method of admission. Our decision in Garcia-

Quintero had found it important that the FUP regulations gov-

erning travel outside the United States used the terms “status”

and “admitted” together. 455 F.3d at 1018. The regulations,

which permitted an FUP beneficiary to be readmitted with the

same status upon re-entry after travel abroad, confirmed our

conclusion that “acceptance into the FUP confers some type

of immigration status.” Id.; see 8 C.F.R. § 236.16. The regula-

tions and provisions governing SIJS-based parole, by contrast,

do not mention “status” and “admission” together. See 8

C.F.R. § 204.11 (referring only to “special immigrant status”

and “special immigrant juvenile status”).

It is not surprising that the SIJS regulations do not mention

admission, as the FUP regulations do. The FUP regulations

permit beneficiaries to travel abroad without penalty, although

they must seek prior authorization. That policy furthers the

FUP’s goal of keeping families together in this country, while

allowing them to maintain ties to familial and social networks

in their countries of origin. By contrast, SIJS-based parolees’

claims to remain in this country derive from their status as

juvenile dependants of the court and their lack of viable fam-

ily ties. Cf. 8 C.F.R. § 204.11(a). Such parolees are unlikely

19854 GARCIA v. HOLDER

to have occasion to travel abroad while their applications are

pending and they remain dependants of the court. There

would be no need for regulations governing the status they

would enjoy upon re-entry after travel abroad. While we

found the FUP regulations’ text persuasive in reaching our

holding in Garcia-Quintero, we did not think it as materially

significant as statutory text, legislative intent, and case law.

See 455 F.3d at 1018-19. The absence of analogous provi-

sions in the SIJS regulations does not persuade us that Con-

gress intended to deny SIJS-based parolees eligibility for

cancellation of removal.

[9] Because SIJS-based parole is analogous to one of the

“alternative methods for aliens . . . to meet the ‘admitted in

any status’ requirement” for cancellation of removal, we hold

that the grant of SIJS-based parole qualifies as an admission

“in any status” for cancellation of removal purposes. See

Vasquez de Alcantar, 645 F.3d at 1100. On this basis Garcia

has accrued the required seven years of continuous presence

after being “admitted in any status,” and he is eligible for can-

cellation of removal.4 We grant the petition for review and

remand to the BIA for further proceedings consistent with this

opinion.

PETITION GRANTED.

4

Because we conclude that Garcia was, upon his designation as a SIJS-

parolee, “admitted in any status” for the purposes of § 1229b(a)(2), we

need not and do not reach the question of whether under Cuevas-Gaspar

Garcia should be imputed lawful admission from his legal guardian, the

State of California.