Eduardo Enriquez v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO J. ENRIQUEZ, AKA No. 13-72934
Eduardo Jobanny Enriquez,
Petitioner, Agency No.
A095-465-235
v.
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred April 3, 2020
Submitted August 6, 2020 *
Pasadena, California
Filed August 13, 2020
Before: Kim McLane Wardlaw, Mary H. Murguia,
and Eric D. Miller, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Murguia
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ENRIQUEZ V. BARR
SUMMARY **
Immigration
Denying Eduardo Enriquez’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that Enriquez was not “admitted” within the meaning of the
cancellation of removal statute, 8 U.S.C. § 1229b(a)(2),
when he was approved as a derivative beneficiary of his
mother’s self-petition under the Violence Against Women
Act (VAWA).
In 2000, Enriquez’s mother self-petitioned under
VAWA, filing a Form I-360 Petition for Special Immigrant
and listing Enriquez as her dependent child. The petition
was approved the same year, and Enriquez was granted
deferred action and later received work authorization. In
2008, Enriquez adjusted to lawful permanent resident (LPR)
status.
After a conviction in 2012, Enriquez was charged as
removable for having committed a crime involving moral
turpitude within five years of admission. He conceded
removability, an immigration judge denied his application
for cancellation of removal, and the BIA affirmed.
For cancellation of removal, as relevant here, a lawful
permanent resident must have “resided in the United States
continuously for 7 years after having been admitted in any
status.” 8 U.S.C. § 1229b(a)(2). The panel explained that
Enriquez’s period of continuous residence stopped accruing
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ENRIQUEZ V. BARR 3
when he committed a crime of moral turpitude in 2012, and
therefore, to meet the seven-year residence requirement, he
had to show he was “admitted in any status” in 2005 or
earlier.
The panel explained that the court generally defines
“admitted” by reference to the Immigration and Nationality
Act (INA)’s statutory definition, 8 U.S.C. § 1101(a)(13)(A),
which requires “lawful entry . . . after inspection and
authorization by an immigration officer.” However, the
panel noted that the court has embraced an alternative
construction of the term when the statutory context dictates,
and that the BIA has recognized that “compelling reasons”
may justify a deviation from the statutory definition.
The panel further explained that, in Medina-Nunez v.
Lynch, 788 F.3d 1103 (9th Cir. 2015) (per curiam), the court
deferred to a BIA decision concluding that participation in
the Family Unity Program does not constitute an admission
for purposes of cancellation of removal. In Medina-Nunez,
as the panel observed, the court also narrowed the definition
of “admitted” under § 1229b(a)(2), absent “compelling
reasons,” to the INA’s statutory definition. Moreover, the
panel explained that the court has since extended the reach
of Medina-Nunez to hold that petitioners who received
comparable discretionary benefits are not “admitted” for
purposes of cancellation of removal.
The panel concluded that neither the approval of the
Form I-360 in 2000, nor Enriquez’s subsequent receipt of
deferred action and work authorization, satisfies the
statutory definition of “admission.” The panel explained
that the court has previously held that the approval of a
comparable Form I-130 petition does not constitute an
admission. Further, the panel concluded that the grant of
4 ENRIQUEZ V. BARR
deferred action and work authorization are benefits similar
to, or less substantial than, the benefits contemplated by the
Family Unity Program in Medina-Nunez.
Therefore, the panel concluded that Enriquez was not
“admitted in any status” until 2008, when he became an
LPR, and therefore, he was unable to satisfy the requirement
of seven years of continuous residence after admission.
Concurring, Judge Murguia agreed that, under the
court’s precedent, Enriquez could not be deemed “admitted
in any status,” but wrote separately to underscore that the
case law is inconsistent with the statutory context and
undermines VAWA’s purpose of expanding immigration
relief to undocumented immigrants who experience
domestic abuse.
COUNSEL
Gabriella Navarro-Busch, Ventura, California, for
Petitioner.
Terri J. Scadron, Assistant Director; Corey L. Farrell,
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
ENRIQUEZ V. BARR 5
OPINION
PER CURIAM:
Eduardo Enriquez petitions for review of the Board of
Immigration Appeals’ (BIA) decision dismissing his appeal
and affirming the Immigration Judge’s (IJ) denial of his
application for cancellation of removal. Because we are
bound by our decision in Medina-Nunez v. Lynch, 788 F.3d
1103 (9th Cir. 2015) (per curiam), we hold that Enriquez was
not “admitted” under 8 U.S.C. § 1229b(a)(2) when he was
approved as a derivative beneficiary of his mother’s self-
petition under the Violence Against Women Act (VAWA).
We therefore deny his petition for review.
I.
Enriquez is a native and citizen of Mexico who entered
the United States without inspection in 1997 at the age of
four. In 2000, Enriquez’s mother self-petitioned under
VAWA, filing a Form I-360 Petition for Special Immigrant
and listing Enriquez as her dependent child. The
Immigration and Naturalization Service (INS) approved the
petition and granted Enriquez deferred action as a derivative
beneficiary of his mother’s self-petition. Enriquez received
work authorization in 2003, and adjusted to lawful
permanent resident (LPR) status in 2008. Four years later,
in 2012, Enriquez was convicted of attempting to dissuade a
witness in violation of California Penal Code section
136.1(a)(2). The Department of Homeland Security (DHS)
issued him a Notice to Appear, charging him with
removability for committing a crime of moral turpitude
within five years of admission under 8 U.S.C.
§ 1227(a)(2)(A)(i).
6 ENRIQUEZ V. BARR
Enriquez conceded the allegations against him but
applied for cancellation of removal under 8 U.S.C.
§ 1229b(a). In a single-member, unpublished decision, the
BIA affirmed the IJ’s conclusion that Enriquez was not
eligible for cancellation of removal. The BIA explained that
Enriquez had not “resided in the United States continuously
for 7 years after having been admitted in any status,” as
required by 8 U.S.C. § 1229b(a)(2). It reasoned that the
2000 approval of Enriquez’s derivative VAWA petition was
not an “admission” and therefore Enriquez was not
“admitted” until 2008 when he adjusted to LPR status. The
BIA acknowledged that our decision in Garcia-Quintero v.
Gonzales, 455 F.3d 1006, 1009 (9th Cir. 2006), had
previously concluded that participation in the Family Unity
Program (FUP)—a program “designed to help families stay
together while the beneficiaries adjust to LPR status,” id.—
constituted an admission. But the BIA declined to extend
that reasoning to VAWA, reasoning that Garcia-Quintero
conflicted with the BIA’s subsequent decision In re Reza-
Murillo, 25 I. & N. Dec. 296, 297–99 (BIA 2010), which
held that participation in the Family Unity Program was not
an “admission” for purposes of cancellation of removal
because the grant of FUP benefits did not involve “‘entry . . .
after inspection and authorization by an immigration officer’
under Section 101(a)(13)(A) of the Act.” Id. The BIA
dismissed Enriquez’s appeal, and he timely petitioned for
our review.
II.
A.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
“We review the BIA’s determination of questions of law de
novo, subject to established principles of deference.”
Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019).
ENRIQUEZ V. BARR 7
For cancellation of removal, a petitioner must have:
(1) been “lawfully admitted for permanent residence for not
less than 5 years;” (2) “resided in the United States
continuously for 7 years after having been admitted in any
status;” and (3) “not been convicted of any aggravated
felony.” 8 U.S.C. § 1229b(a). We must decide whether
approval of the VAWA self-petition in 2000 is an
“admission” within the meaning of § 1229b(a)(2).
We generally define “admitted” by reference to the
Immigration and Nationality Act (INA)’s statutory
definition in 8 U.S.C. § 1101(a)(13)(A), which requires
“lawful entry . . . after inspection and authorization by an
immigration officer.” See Medina-Nunez, 788 F.3d at 1105.
However, we “have ‘embrace[d] an alternative construction
of the term’ when the statutory context so dictates.” Ramirez
v. Brown, 852 F.3d 954, 961 (9th Cir. 2017) (quoting
Negrete-Ramirez v. Holder, 741 F.3d 1047, 1052 (9th Cir.
2014)). The BIA has likewise recognized that “compelling
reasons” may justify a deviation from the statutory
definition. Reza-Murillo, 25 I. & N. Dec. at 299. For
example, the BIA held in In re Rosas-Ramirez, 22 I. & N.
Dec. 616, 623 (BIA 1999), that adjustment to LPR status
constituted an “admission” even if the adjustment was
preceded by an entry that was unlawful or without
inspection, in part because one who has LPR status has been
“lawfully admitted for permanent residence,” 8 U.S.C.
§ 1101(a)(20). This holding avoided the “absurdity of
treating aliens who entered the United States without
inspection prior to being granted [LPR] status more like
aliens without any valid immigration status than like
permanent resident aliens who entered the United States
after inspection.” Reza-Murillo, 25 I. & N. Dec. at 298
(citing Rosas-Ramirez, 22 I. & N. Dec. at 621–23).
8 ENRIQUEZ V. BARR
By contrast, in Reza-Murillo the BIA found no
comparable “absurd or bizarre results” in applying the
statutory definition of “admission” to participation in the
Family Unity Program. Id. at 298–99. Participants in the
Family Unity Program receive a temporary grant of
voluntary departure, limited ability to travel outside of the
United States, and work authorization. Id. at 297 n.1, 299
(citing 8 C.F.R. §§ 236.15, 236.16). However, unlike LPRs,
they are not considered to have been “lawfully admitted for
permanent residence.” Id. at 298 (citing 8 U.S.C.
§ 1101(a)(20)). The BIA therefore held that the statutory
definition of “admitted” controlled and that participation in
the Family Unity Program is not an admission for
cancellation of removal because the “grant of FUP benefits
did not itself involve [the petitioner’s] ‘entry . . . into the
United States after inspection and authorization by an
immigration officer.’” Id. at 297 (quoting 8 U.S.C.
§ 1101(a)(13)(A)).
In 2015, we afforded deference under Brand X 1 to the
BIA’s decision in Reza-Murillo, narrowed our definition of
“admitted” under § 1229b(a)(2), absent “compelling
reasons,” to the INA’s statutory definition under Section
1101(a)(13)(A), and held that “acceptance into the Family
Unity Program does not constitute an admission for purposes
of § 1229b(a)(2).” Medina-Nunez, 788 F.3d at 1105. We
have since extended the reach of Medina-Nunez to hold that
petitioners who received comparable discretionary benefits
1
In National Cable & Telecommunications Ass’n v. Brand X
Internet Services, 545 U.S. 967, 982 (2005), the Supreme Court held that
a prior judicial construction of a statute controls despite a later agency
interpretation to the contrary that is otherwise entitled to Chevron
deference if the prior construction “follows from the unambiguous terms
of the statute and thus leaves no room for agency discretion.”
ENRIQUEZ V. BARR 9
are not “admitted” and thus ineligible for cancellation of
removal. For example, in Fuentes v. Lynch, 837 F.3d 966,
967–68 (9th Cir. 2016) (per curiam), we held that the
petitioner—a derivative beneficiary of his mother’s asylum
and Nicaraguan Adjustment and Central American Relief
Act (NACARA) applications who received work
authorization—was not “admitted” for cancellation of
removal purposes because he had not satisfied the statutory
definition. We followed suit in Alanniz v. Barr, holding that
the receipt of discretionary parole for the possibility of
adjustment of status was not an admission for cancellation
of removal. 924 F.3d at 1065–67. In both cases, we
reasoned that because the benefits from the administrative
actions at issue were less generous than the Family Unity
Program, and because the statutory and regulatory language
did not require our application of a definition different from
the statutory definition of “admission,” the receipt of those
benefits was not an admission within the meaning of the
cancellation of removal provision. See id. at 1066–67;
Fuentes, 837 F.3d at 968.
B.
Enriquez’s period of continuous residence stopped
accruing when he committed a crime of moral turpitude in
2012. See 8 U.S.C. 1229b(d)(1). Therefore, to meet the
seven-year continuous residence requirement for
cancellation of removal under § 1229b(a), Enriquez must
show he was “admitted in any status” in 2005 or earlier. Id.
§ 1229b(a)(2).
Enriquez does not argue that he was admitted in 1997,
when he physically entered the United States without
inspection. It is also undisputed that Enriquez was admitted
when he adjusted his status to LPR in 2008, but he cannot
satisfy the seven-year continuous residence requirement
10 ENRIQUEZ V. BARR
with this date of admission. Instead, Enriquez contends that
he was “admitted” through agency approval of his mother’s
Form I-360 VAWA self-petition and his subsequent receipt
of deferred action and work authorization in 2003. In light
of our controlling precedent, we must reject this argument.
An individual may file a self-petition under VAWA if he
has suffered battery or extreme cruelty at the hands of an
abusive LPR spouse. See 8 U.S.C. § 1154(a)(1)(B)(ii)(I).
The approval of a Form I-360 VAWA self-petition permits
a battered spouse to apply for adjustment to LPR status, but
is not itself an adjustment of status. See 8 U.S.C. § 1255(a).
When a VAWA self-petition is approved, the self-petitioner
and his dependent children included in the petition become
eligible for deferred action and work authorization. 8 U.S.C.
§§ 1154(a)(1)(D)(i)(IV), (a)(1)(K).
Neither the approval of the Form I-360 listing Enriquez
as a derivative beneficiary, nor his subsequent receipt of
deferred action and work authorization, satisfies the
statutory definition of “admission” under the INA. We have
previously held that the approval of a comparable Form I-
130 petition, which authorizes the petitioner to apply for
adjustment of status but is not itself an adjustment, does not
constitute an admission satisfying the requirements for
cancellation of removal. See Vasquez de Alcantar v. Holder,
645 F.3d 1097, 1101–02 (9th Cir. 2011). Like the approval
of a Form I-130, approval of a Form I-360 Petition for
Special Immigrant is not itself an adjustment of status, but is
only “one step in the application for adjustment of status.”
Id. at 1103. Thus, simple approval of the petition cannot be
the equivalent of inspection and authorization to enter and
remain in the United States under our precedent. Id.As a derivative beneficiary of his mother’s VAWA self-
petition, Enriquez also received deferred action and work
ENRIQUEZ V. BARR 11
authorization. Both benefits are similar to, or less substantial
than, the benefits contemplated by the Family Unity
Program, participation in which we have previously held is
not an “admission.” Medina-Nunez, 788 F.3d at 1105.
Beneficiaries of the Family Unity Program, like successful
VAWA petitioners, are eligible for work authorization.
8 U.S.C. § 274a.12(a)(14). The Family Unity Program also
includes an extendable two-year grant of voluntary departure
and limited freedom to travel outside of the United States.
8 C.F.R. §§ 236.15(c), 236.16. By contrast, VAWA
beneficiaries may be granted deferred action, which provides
“no formal immigration status” and is only a temporary
exercise of administrative discretion “not to pursue
deportation proceedings” against someone who is
“otherwise eligible for removal.” Regents of the Univ. of
Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 487 (9th
Cir. 2018) vacated in part, rev’d in part, 140 S. Ct. 1891(2020). Because the benefits Enriquez received are similar
to, or less substantial than those we have already found
insufficient to constitute an “admission” for cancellation of
removal, see Medina-Nunez, 788 F.3d at 1105, Enriquez was
not “admitted” under § 1229b(a)(2) when he received
deferred action and work authorization under VAWA. See
Alanniz, 924 F.3d at 1066–67 (“Because we have held that
the BIA’s determination that even a specialized parole, such
as acceptance into the FUP program, does not constitute an
admission, Alanniz cannot prevail on his argument that his
1997 parole constitutes an admission.”); Fuentes, 837 F.3d
at 968 (“Because Fuentes enjoyed fewer benefits than FUP
participants, his claim to admission is no greater than—and
in fact is weaker than—persons accepted into the FUP.”).
12 ENRIQUEZ V. BARR
C.
Enriquez urges us to stray from § 1101(a)(13)(A)’s
definition of “admitted” as we did in Ramirez v. Brown,
852 F.3d 954 (9th Cir. 2017). In Ramirez, we held that a
grant of Temporary Protected Status (TPS) was an
“admission” for adjustment of status under 8 U.S.C. § 1255.
Id. at 960–61. Ramirez, however, did not involve
cancellation of removal but the distinct issue of the
relationship between adjustment of status under § 1255 and
the TPS statute under § 1254a. 852 F.3d at 958–59. We
noted that the TPS statute expressly provided that, “for
purposes of adjustment of status under section 1255,” one
who is granted TPS “shall be considered as being in, and
maintaining, lawful status as a nonimmigrant.” Id. at 961
(quoting 8 U.S.C. § 1254a(f)(4)). This statutory language,
we explained, was plainly “inconsistent” with
§ 1101(a)(13)(A)’s “port-of-entry definition” and justified
the use of a different definition of “admitted.” Id. at 961.
But the VAWA statutes and regulations do not contain any
comparable inconsistent language regarding the approval of
a Form I-360 or the grant of deferred action and work
authorization, and Enriquez points to none. Without that
inconsistency, Ramirez does not support a departure from
Medina-Nunez’s holding that § 1101(a)(13)(A) provides the
governing definition of the term “admitted” for cancellation
of removal. See Medina-Nunez, 788 F.3d at 1105.
III.
Because Enriquez was not “admitted in any status” under
our controlling precedent until 2008, and committed a crime
of moral turpitude in 2012, he is unable to satisfy the
requirement of seven years of continuous residence after
admission for eligibility for cancellation of removal under
8 U.S.C. § 1229b(a). Therefore, the BIA properly dismissed
ENRIQUEZ V. BARR 13
his appeal from the IJ’s denial of that relief, and we must
deny his petition for review.
PETITION DENIED.
MURGUIA, Circuit Judge, concurring:
I agree that, under our precedent, Enriquez cannot be
deemed “admitted in any status” under the cancellation of
removal statute, 8 U.S.C. § 1229b(a)(2), when the
government approved his mother’s self-petition pursuant to
the Violence Against Women Act (“VAWA” or the “Act”).
I write separately, however, to underscore that our case law
is inconsistent with the statutory context and undermines
VAWA’s purpose of expanding immigration relief to
undocumented immigrants who experience domestic abuse.
I.
Enriquez, a twenty-seven-year-old native and citizen of
Mexico, is a derivative beneficiary of VAWA—a landmark
federal statute enacted to empower battered immigrant
women and their dependent children with lawful
immigration status to facilitate their escape from domestic
violence. See Hernandez v. Ashcroft, 345 F.3d 824, 841 (9th
Cir. 2003). Like many VAWA beneficiaries, Enriquez was
undocumented for several years before he finally adjusted
his status to legal permanent resident (“LPR”). Enriquez
physically entered the United States without inspection in
1997, when he was four years old. His childhood in the
United States was unfortunately disrupted by his abusive
LPR stepfather, who beat Enriquez from a young age,
abused Enriquez’s mother, and sexually assaulted
Enriquez’s sister. To aid her escape from such abuse,
14 ENRIQUEZ V. BARR
Enriquez’s mother filed a self-petition under VAWA in
2000, listing Enriquez and his sister as derivative
beneficiaries. That same year, the government approved the
petition. Enriquez in turn received deferred action and work
authorization, and he was authorized to apply to adjust his
undocumented status to LPR. In 2008—eight years after his
mother’s VAWA self-petition was approved and almost
twenty years after he originally entered the country—
Enriquez finally became an LPR. 1
II.
Congress enacted VAWA “to eliminate barriers to
women leaving abusive relationships.” Hernandez,
345 F.3d at 841 (citing H.R. Rep. No. 103-395, at 25 (1994)
(noting that the goal of the bill was “to combat violence and
crimes against women” and “permit[] battered immigrant
women to leave their batterers without fearing
deportation.”)). At its core, the Act sought “to eliminate
immigration laws preventing battered spouses and children
from leaving abusive relationships or from seeking help
from law enforcement because they were afraid that they
would be deported or that their abusers would withdraw
sponsorship for a particular immigration benefit.” Matter of
A- M-, 25 I. & N. Dec. 66, 74 (BIA 2009) (citing H.R. Rep.
No. 106-939, at 56, 111–12 (2000)).
1
After his mother’s VAWA self-petition was approved, Enriquez
was forced to wait to adjust his status to LPR due to the limited number
of green cards that Congress has allocated for family-based immigration.
See 8 U.S.C. §§ 1153(a), 1255(a)(3). In other words, Enriquez’s eight-
year delay in adjusting his status resulted from a backlog of immigrant
visas. Had Enriquez been allowed to adjust his status shortly after the
VAWA self-petition was approved in 2000, he likely would have been
able to meet the requirements of the cancellation statute.
ENRIQUEZ V. BARR 15
A critical component of VAWA is the self-petitioning
process at issue in Enriquez’s case. Congress recognized
that, prior to VAWA, only United States citizen or LPR
spouses were allowed to petition the government for an
immigrant spouse, which meant that an abusive “spouse
maintain[ed] full control over the petitioning process” and
could “withdraw the petition at any time for any reason.”
H.R. Rep. 103–395, at 25; see Hernandez, 345 F.3d at 838(noting that Congress recognized that then-existing
“[immigration] law foster[ed] domestic violence” (citing
H.R. Rep. 103–395, at 26)). Therefore, Congress passed
VAWA to allow immigrant battered spouses to “self-
petition” for adjustment of status, in order “to prevent the
citizen or [LPR abusive spouse] from using the petitioning
process as a means to control or abuse [the immigrant]
spouse.” H.R. Rep. 103–395, at 25; see 8 U.S.C.
§§ 1154(a)(1)(A)(iii)(I), (a)(1)(B)(ii)(I).
The VAWA self-petitioning process is twofold: first, the
individual must file a petition (Form I-360); and second, if
the petition is approved, the individual may then apply to
adjust his or her status to LPR (Form I-485). See 8 U.S.C.
§ 1255(a). In other words, approval of the VAWA self-
petition does not by itself adjust the petitioner’s status to
LPR; it merely authorizes the petitioner to apply for
adjustment. Id. To protect this population from deportation
while they await the adjustment of their status to LPR,
Congress authorized undocumented immigrants with
approved VAWA self-petitions—as well as their dependent
children—to obtain deferred action and work authorization.
See id. § 1154(a)(1)(D)(i)(IV), (a)(1)(K). Then, once
VAWA beneficiaries adjust their status to LPRs, they may
apply to become United States citizens, subject to the
naturalization rules and timetables applicable to LPRs. See
generally id. § 1427.
16 ENRIQUEZ V. BARR
In sum, Congress created a program whereby
undocumented survivors of domestic violence are placed on
a path toward United States citizenship without having to
rely on abusive partners for family-based immigration
sponsorship. For all practical purposes, VAWA aims to
bring these vulnerable immigrants out of the shadows and
into the documented population in an effort to address an
underlying factor enabling their victimization: their
immigration status.
III.
We are asked to decide in this appeal whether Enriquez
was “admitted in any status” under 8 U.S.C. § 1229b(a)(2)—
the cancellation of removal statute applicable to LPRs—
when the government approved his mother’s VAWA self-
petition, which conferred a number of immigration benefits
to Enriquez, including the ability to adjust his status to LPR.
To qualify for cancellation of removal, an LPR must
have: (1) “been an [LPR] for not less than 5 years”;
(2) “resided in the United States continuously for 7 years
after having been admitted in any status”; and (3) “not been
convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)
(emphasis added). It is undisputed that Enriquez satisfies the
first and third requirements of § 1229b(a) because he has
been an LPR for at least five years and has not been
convicted of an aggravated felony. It is also undisputed that
Enriquez has continuously resided in the country for at least
seven years. Therefore, the only issue on appeal is whether
Enriquez has resided in the United States continuously for
seven years after being “admitted in any status.” Id.
§ 1229b(a)(2).
Enriquez’s argument that approval of his mother’s
VAWA self-petition constitutes an “admission” under
ENRIQUEZ V. BARR 17
§ 1229b(a)(2) is foreclosed by our precedent. In Medina-
Nunez v. Lynch, we deferred to the BIA’s narrow
interpretation of the statute and adopted the view that the
statutory definition of “admitted” under the Immigration and
Nationality Act (“INA”)—“the lawful entry of the
[petitioner] into the United States after inspection and
authorization by an immigration officer”—controls in this
context. 788 F.3d 1103, 1105 (9th Cir. 2015) (per curiam)
(quoting Reza-Murillo, 25 I. & N. Dec. 296, 297–300 (BIA
2010) (quoting 8 U.S.C. § 1101(a)(13)(A))). Application of
this definition, which is limited to “something akin to
passage into the United States at a designated port of entry,”
Ramirez v. Brown, 852 F.3d 954, 961 (9th Cir. 2017),
forecloses any relief to Enriquez because he entered the
country without inspection. See also Negrete-Ramirez v.
Holder, 741 F.3d 1047, 1051 (9th Cir. 2014) (“The
definition refers expressly to entry into the United States,
denoting by its plain terms passage into the country from
abroad at a port of entry.”).
It is worth emphasizing that we deferred to this narrow
construction by the BIA without much explanation, noting
only that:
It [was] reasonable for the BIA to apply the
statutory definition of the term “admitted.”
Nothing in the statutory text, the BIA’s cases,
or our own cases precludes the BIA from
relying on that definition.
Medina-Nunez, 788 F.3d at 1105. Without more, we
abrogated our long-standing precedent in Garcia-Quintero
v. Gonzales, where we held that the term “admitted” is not
limited to a “physical entry and inspection.” 455 F.3d 1006,
1016 (9th Cir. 2006). We then concluded that admission into
18 ENRIQUEZ V. BARR
the Family Unity Program (“FUP”)—a program which,
similar to VAWA, allows undocumented immigrants within
our borders to obtain temporary relief from deportation and
work authorization while they await adjustment of their
immigration status to LPR, see 8 U.S.C. § 1255a—was not
an “admission” under the cancellation statute. Medina-
Nunez, 788 F.3d at 1105 (overruling Garcia-Quintero,
455 F.3d at 1009 (explaining that FUP was “designed to help
families stay together while the beneficiaries adjust to LPR
status”)). The practical consequence of our precedent is that
LPRs like Enriquez, who physically entered the country
without inspection but who Congress decided could
transition to LPR status through programs such as VAWA
or FUP, cannot be deemed “admitted” when they are
accepted into such programs for purposes of meeting the
seven-year continuous presence requirement of
§ 1229b(a)(2).
A strict application of the port-of-entry definition of
“admitted” to the cancellation of removal statute is
inconsistent with the statutory context and creates a loophole
that Congress could not have possibly intended. Although
we generally follow an “explicit definition” when Congress
provides one, we do not do so when it is “not possible in a
particular context.” Negrete-Ramirez, 741 F.3d at 1053
(quoting Stenberg v. Carhart, 530 U.S. 914, 942 (2000));
see, e.g., Ramirez, 852 F.3d at 961 (rejecting statutory
definition because “the statutory context so dictates”).
Indeed, it is axiomatic that when we construe a statute, our
“analysis of the statutory language requires an assessment of
the effect of these terms on the meaning of the provision as
a whole.” Negrete-Ramirez, 741 F.3d at 1051.
The cancellation of removal statute applicable to LPRs
sets forth two separate and distinct requirements related to
ENRIQUEZ V. BARR 19
the individual’s “admission.” The applicant must
“(1) ha[ve] been . . . lawfully admitted for permanent
residence for not less than 5 years,” and “(2) ha[ve] resided
in the United States continuously for 7 years after having
been admitted in any status.” 8 U.S.C. § 1229b(a)(1)–(2)
(emphases added). Thus, the statute recognizes on its face
that LPRs are approved to become LPRs after they first
reside in the country in some other status. See Garcia-
Quintero, 455 F.3d at 1016 (“Congress designed the dual
requirement of a five-year legal permanent residency and
seven-year continuous residence in any status . . . ‘to clear
up prior confusion and to strike a balance between the
conflicting interpretations . . . by counting a limited period
of time spent in non-permanent status while still requiring at
least five years of permanent resident status.’” (quoting
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1028 (9th Cir.
2005), overruled on other grounds by Holder v. Martinez
Gutierrez, 566 U.S. 583 (2012))).
Indeed, applying the port-of-entry definition to
§ 1229b(a)(2) renders the cancellation statute entirely
unusable for LPRs who, like Enriquez, have continuously
resided in the country for many years but who never
physically entered the country with inspection or
authorization. Therefore, such reading of the term
“admission” creates a giant loophole in the statute to the
detriment of the population of undocumented immigrants
that programs like VAWA and FUP are designed to protect.
Consistent with the well-established principle that we must
avoid interpretations that “produce ‘an absurd and unjust
result which Congress could not have intended,’” United
States v. Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000)
(quoting Clinton v. City of New York, 524 U.S. 417, 429
(1998)), we have previously departed from a strict
application of the port-of-entry definition to avoid loopholes
20 ENRIQUEZ V. BARR
in the INA, see Ocampo-Duran v. Ashcroft, 254 F.3d 1133,
1135 (9th Cir. 2001) (rejecting port-of-entry definition
because otherwise the law would create “a loophole in the
removal laws for [immigrants] who enter the country
without inspection”); see also In Re Rosas-Ramirez, 22 I. &
N. Dec. 616, 623 (BIA 1999) (same). Here, too, a departure
is necessary to avoid a result contrary to Congress’s
objective “to forestall harsh results” for VAWA recipients.
Lopez-Birrueta v. Holder, 633 F.3d 1211, 1216 (9th Cir.
2011) (quoting Hernandez, 345 F.3d at 840); see Kokoszka
v. Belford, 417 U.S. 642, 650 (1974) (noting that statutory
interpretation involves looking at a provision in the context
of the entire scheme, including “statutes on the same
subject” and the “objects and policy of the law” (quoting
Brown v. Duchesne, 60 U.S. 183, 194 (1856))); Ramirez,
852 F.3d at 963 (interpreting the term “admission” under the
adjustment of status statute “consistent with the purpose of
[Temporary Protected Status (‘TPS’)]” and rejecting the
port-of-entry definition under 8 U.S.C. § 1101(a)(13)(A)).
Recognizing “the absurdity of finding long-time [LPRs]
who entered without inspection” to be ineligible for relief
under the LPR cancellation statute, the BIA in Matter of
Reza-Murillo crafted a “compelling” exception to the
applicability of the port-of-entry definition: LPRs who
entered without inspection may be considered “admitted” as
of the day they obtained LPR status. 25 I. & N. Dec. 296,
299–300 (BIA 2010) (relying also on “the unique statutory
language” pertaining to LPRs). We have also carved out this
exception in our law. See, e.g., Fuentes, 837 F.3d at 967
(“Fuentes, who entered the United States without inspection
in 1996, was admitted in 2004, when he was granted [LPR]
status.”).
ENRIQUEZ V. BARR 21
But this “compelling” exception is not much of an
exception at all. Limiting the term “admitted” in
§ 1229b(a)(2) to the date that Enriquez became an LPR
renders § 1229b(a)(1) entirely superfluous, because an LPR
who has continuously resided in the country for seven years
after becoming an LPR will necessarily have been an LPR
for five years. See 8 U.S.C. § 1229b(a)(1)–(2) (requiring the
petitioner to “(1) ha[ve] been . . . lawfully admitted for
permanent residence for not less than 5 years” and
“(2) ha[ve] resided in the United States continuously for
7 years after having been admitted in any status”) (emphases
added). Therefore, the statute demands a more expansive
reading of the term “admitted” under § 1229b(a)(2). See
Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062–63 (9th Cir.
2008) (“It is a well-established principle of statutory
construction that legislative enactments should not be
construed to render their provisions ‘mere surplusage.’”
(quoting Am. Vantage Cos. v. Table Mountain Rancheria,
292 F.3d 1091, 1098 (9th Cir. 2002))).
In light of this statutory scheme, I would hold that
Enriquez was “admitted” and began accruing continuous
presence under the LPR cancellation of removal statute
when the government inspected and approved his mother’s
VAWA self-petition. The statute demands this result
because an approved petition is the step that precedes
attaining LPR status in the VAWA context, and for all
practical purposes, approval of such petition mirrors an
inspection at a physical port-of-entry. A petition is only
approved after the government “investigat[es] the facts of
[the] case” and “determines that the facts stated in the
petition are true.” 8 U.S.C. § 1154(b); see 8 C.F.R.
§ 2042(c)(2)(i) (noting that the agency will determine what
evidence submitted with the petition “is credible and the
weight to be given to that evidence”). VAWA self-
22 ENRIQUEZ V. BARR
petitioners are therefore undoubtedly inspected and
authorized by immigration authorities when their petitions
are approved, even if they do not physically re-enter the
country with inspection. See Ramirez, 852 F.3d at 960
(concluding that TPS beneficiary was “admitted” under
adjustment of status statute, in part because “in practice, . . .
the application and approval process for securing TPS shares
many of the main attributes of the usual ‘admission’ process
for nonimmigrants”); but see Vasquez de Alcantar v. Holder,
645 F.3d 1097, 1102–03 (9th Cir. 2011) (holding that a
petitioner who entered the country without inspection but
whose family-based visa petition was processed and
approved was not “admitted” under the cancellation statute).
Finally, it is worth noting that to advance its position in
the context of this case, the government does not dispute the
BIA’s conclusion that deferred action is not an admission
because it is merely “an informal administrative stay of
deportation exercised by the [government] in its discretion.”
Compare Dep’t of Homeland Sec. v. Regents of the Univ. of
California, 140 S. Ct. 1891, 1903 (2020).
Even if deferred action alone is not an admission,
Enriquez correctly points out that an approved VAWA self-
petition confers much more than a favorable exercise of
prosecutorial discretion. Through VAWA—as with FUP—
Congress categorically conferred a critical immigration
benefit to its intended beneficiaries: the ability to adjust their
undocumented immigration status to LPR. Under the INA,
undocumented persons who entered the country without
inspection are generally “inadmissible” and therefore
ineligible for adjustment of status to LPR. Compare
8 U.S.C. § 1182(a)(6)(A)(i) (unlawful entrants are
inadmissible), with 8 U.S.C. § 1255(a)(2) (admissible
persons are eligible to adjust their status to LPR); but see
ENRIQUEZ V. BARR 23
8 U.S.C. § 1255(i). By passing VAWA, Congress
specifically created a waiver of such an inadmissibility bar
for VAWA self-petitioners and their beneficiaries who
entered the country unlawfully. See 8 U.S.C.
§ 1182(6)(A)(ii)(I) (unlawful-entrant inadmissibility bar
“shall not apply to [a person] who demonstrates that—[he or
she] is a VAWA self-petitioner”). In other words, VAWA
sought to bring approved petitioners who entered the country
unlawfully on equal footing with lawful entrants, in order to
render them eligible for adjustment of status to LPR under
the INA. See 8 U.S.C. § 1255(a). Thus, Congress’s intent
is clear: approved VAWA beneficiaries are similarly
situated to persons inspected and authorized at a port-of-
entry, without having to needlessly re-enter through a
physical border to adjust their status to LPRs.
IV.
In sum, the BIA’s exceedingly limited reading of
“admission” is unreasonable in light of the entire statutory
scheme, particularly in the context of VAWA and its
remedial objective. Our acquiescence to this construction
has led to an absurd and unjust result that is inconsistent with
the realities of our immigration system and congressional
intent. But because “[b]inding authority must be followed
unless and until overruled by a body competent to do so,”
Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1211 (9th Cir.
2016) (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th
Cir. 2001)), I agree that Enriquez’s petition must be denied
in light of our precedent.