Diaz De Diaz v. Ashcroft , 108 F. App'x 972 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT September 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-60612
BLANCA ESTHELA DIAZ De DIAZ,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A44-098-304)
Before KING, CHIEF JUDGE, and BARKSDALE and PICKERING, Circuit
Judges.
PER CURIAM:*
By granting a period for voluntary departure, the Family Unity
Program, Pub. L. No. 101-649, § 301, 104 Stat. 5029 (1991) (FUP),
permits qualified aliens to remain in the United States and work
while awaiting adjustment to lawful permanent resident status. At
issue is whether voluntary departure status and other benefits
under the FUP constitute an “admission in any status”, making
petitioner eligible for cancellation of removal under 8 U.S.C. §
1229b(a)(2) (requiring, for cancellation of removal eligibility,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
continuous residence in United States for seven years after having
been admitted in any status). FUP’s voluntary departure is not an
“admission”; the petition for review is DENIED.
I.
Blanca Esthela Diaz de Diaz, a citizen of Mexico, entered the
United States illegally in 1986. She was granted voluntary
departure under the Family Fairness Program in 1990, after her
husband became a legal United States resident; in 1991, that
program became the FUP. Diaz’ voluntary departure under FUP was
extended in 1991. On 16 June 1993, Diaz was granted permanent
residence status.
On 17 March 2000, the INS issued Diaz a notice to appear,
advising she was subject to removal under 8 U.S.C. §§
1182(a)(6)(A)(i) and (E)(i) as an alien present in the United
States without being admitted or paroled and as an alien who
knowingly aided another alien to attempt illegal entry into the
United States. The INS later alternatively charged Diaz under 8
U.S.C. § 1227(a)(1)(E) as an alien who, within five years of entry,
knowingly aided another alien to attempt such illegal entry.
Diaz filed an application for cancellation of removal under 8
U.S.C. § 1229b(a). During removal hearings before the immigration
judge (IJ), Diaz admitted to helping smuggle her sister into the
United States from Mexico and conceded deportability under §
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1227(a)(1)(E). The Government withdrew its charge under §
1182(a)(6)(A)(i).
After the IJ determined Diaz was removable under §
1227(a)(1)(E) (alien aiding smuggling of another alien is
removable), Diaz requested cancellation of removal. The IJ
concluded Diaz had not accumulated seven years of continuous
residence after being admitted in any status, as required under §
1227(a)(2) for such cancellation, because: Diaz’ FUP voluntary
departure status was not an “admission”; therefore, the seven-year
period did not begin to run until she became a permanent resident
on 16 June 1993; and the period of continuous residence ended on
the date of her notice to appear, 17 March 2000, approximately
three months short of the requisite seven years, pursuant to 8
U.S.C. § 1229b(d)(1) (period of continuous physical presence ends
when alien served with notice to appear); see also Gonzalez-Torres
v. INS, 213 F.3d 899, 902-03 (5th Cir. 2000).
Diaz appealed the IJ’s order to the Board of Immigration
Appeals (BIA). On the same grounds as relied upon by the IJ, it
dismissed her appeal and ordered her removal.
II.
Generally, we review only the decision of the BIA, not the IJ.
See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
Although the BIA’s conclusions of law are reviewed de novo, its
interpretations of ambiguous provisions of the Immigration and
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Naturalization Act (INA), 8 U.S.C. § 1101 et seq., are owed the
usual Chevron deference. Ruiz-Romero v. Reno, 205 F.3d 837, 838
(5th Cir. 2000) (citing Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984)). The BIA’s findings of
fact are “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary”. 8 U.S.C. § 1252(b)(4)(B).
Diaz contends she is eligible for cancellation of removal
because she is a lawful permanent resident meeting the requirements
under § 1229b(a):
(1) has been an alien 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.
8 U.S.C. § 1229b(a)(1)-(3) (emphasis added). Having been admitted
on 16 June 1993, Diaz has been lawfully admitted for permanent
residence status for more than five years. And, notwithstanding
her charge for smuggling her sister into the United States, she has
not been convicted of any aggravated felony. Therefore, at issue
is whether she has “resided in the United States continuously for
7 years after having been admitted in any status”. Id. Diaz
contends she meets this requirement, claiming that, for purposes of
§ 1229b(a)(2), the grant of FUP benefits in 1990 constituted an
“admission in any status”.
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The FUP acknowledges spouses and children of legalized aliens
as present in the United States and permits them being granted
“voluntary departure” status. Immigration Act of 1990 (IMMACT),
Pub. L. No. 101-649, § 301(a)(1), 104 Stat. 5029; 8 C.F.R. §
236.15. If granted FUP voluntary departure, an alien may receive
work authorization, § 301(a)(2); 8 C.F.R. § 236.15(d), and may
apply for advanced authorization to travel, 8 C.F.R. § 236.16.
This travel authorization includes a provision that, upon return to
the United States, the alien “shall be inspected and admitted in
the same immigration status as the alien had at the time of
departure, and shall be provided the remainder of the voluntary
departure period previously granted under the Family Unity
Program”. Id. (emphasis added).
According to Diaz, it is axiomatic that, if a returning alien
will be admitted in the same status as at departure, then that
alien has already been “admitted in any status”; further, because
the regulations provide that aliens are authorized to travel
“incident to status”, one such status can be FUP voluntary
departure. 8 C.F.R. § 274a.12(a)(13) & (14). Diaz contends her
period of FUP voluntary departure should therefore qualify as an
“admission in any status” and fulfill the balance of the seven
years residence in the United States required by § 1229b(a)(2).
The Government responds that, in the immigration context,
“admission” is a term of art with specific meaning and
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requirements. “The terms ‘admission’ and ‘admitted’ mean, with
respect to an alien, the lawful entry of the alien into the United
States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13). According to the Government,
because the FUP does not provide for an “admission” of an alien
into the United States, the BIA was correct to conclude the time
Diaz spent in the United States under FUP voluntary departure did
not count toward that required for cancellation of removal.
The FUP permits qualified aliens to remain in the United
States and work while awaiting adjustment to lawful permanent
resident status; an alien granted FUP benefits is effectively
granted an extended voluntary departure. See Hernandez v. Reno, 91
F.3d 776, 778 (5th Cir. 1996); 8 C.F.R. 236.15(a) (“[v]oluntary
departure under this section implements the provisions of section
301 of IMMACT ... and authority to grant voluntary departure under
the family unity program derives solely from that section”). On
the other hand, as reflected above, a voluntary departure is not an
admission under the definition in 8 U.S.C. § 1101(a)(13).
Diaz claims that, after approval of FUP benefits, an alien has
effectively been inspected and admitted, if only on a temporary
basis. She provides, however, no evidence or legal authority to
support this claim. Moreover, voluntary departure (or temporary
stay of removal) is not equivalent to admission for temporary
residence.
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The BIA stated: “We do not consider a period during which an
alien is to ‘depart’, even if that period is protracted, to be an
‘admission’ to the United States”. We agree. Diaz, as an alien
given voluntary departure, could not simultaneously be admitted in
any status; in the immigration context, voluntary departure and
admission are mutually exclusive. This is confirmed by the FUP:
(f) CONSTRUCTION. — Nothing in this section
shall be construed as authorizing an alien to
apply for admission to, or to be admitted to,
the United States in order to obtain benefits
under this section.
Section 301(f) of IMMACT, Pub. L. 101-649, 104 Stat. 4978.
Diaz contends this section is confusing at best, but that it
most likely prohibits either permitting an alien to enter the
country merely to obtain FUP benefits or granting admission to an
alien merely so she may obtain FUP benefits. Diaz’ first possible
interpretation is redundant, see § 301(a) (defining eligible alien
as immigrant who resided in United States before 5 May 1988); and
it continues to ignore that “admission” in the immigration context
is a term of art. Her second interpretation also fails, given that
it is FUP voluntary departure status, not admission, that permits
receipt of FUP benefits.
Although Diaz was permitted to work under FUP, she admits she
remained technically deportable as an alien who entered the United
States illegally. Notwithstanding FUP’s barring her removal during
the voluntary departure period beginning in 1990, it did not change
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her illegal presence in the United States. That did not change
until she adjusted her status through admission on 16 June 1993 as
a lawful permanent resident.
Given our deferential standard of review, we hold the BIA
decided correctly that a grant of FUP benefits, including voluntary
departure, does not constitute an “admission in any status”.
Therefore, Diaz fails to demonstrate she resided in the United
States for seven continuous years following admission in any
status, as required for cancellation of removal eligibility. See
§ 1229b(a)(2).
III.
For the foregoing reasons, the petition is
DENIED.
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