Lezama-Garcia v. Holder , 666 F.3d 518 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ANTONIO LEZAMA-GARCIA, 
Petitioner, No. 06-74703
v.
 Agency No.
A75-479-222
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 5, 2010*
Pasadena, California
Filed November 30, 2011
Before: Alfred T. Goodwin and Johnnie B. Rawlinson,
Circuit Judges, and J. Michael Seabright,** District Judge.
Opinion by Judge Seabright;
Dissent by Judge Rawlinson
*The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
20457
20460 LEZAMA-GARCIA v. HOLDER
COUNSEL
Raul Montes, Montes, Montes & Montes, Chula Vista, Cali-
fornia, for petitioner Carlos Antonio Lezama-Garcia.
Scott Rempell, United States Department of Justice, Washing-
ton D.C., for respondent Attorney General Eric H. Holder Jr.
OPINION
SEABRIGHT, District Judge:
Carlos Antonio Lezama-Garcia (“Lezama”), a native and
citizen of Nicaragua, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) dismissing his appeal
of an immigration judge’s (“IJ”) order of removal. The IJ
determined that, under 8 C.F.R. § 245.13(k)(1), Lezama had
LEZAMA-GARCIA v. HOLDER 20461
abandoned his pending application for adjustment of status
under Section 202 of the Nicaraguan Adjustment and Central
American Relief Act1 (“NACARA”) as of the moment he
drove from the United States into Mexico — even if his
unplanned departure was not desired and he immediately
turned around and attempted to return. As a result, the IJ
ordered Lezama to be removed as an inadmissible arriving
alien.
We conclude that deeming Lezama’s NACARA application
abandoned was contrary to the regulation, and ordering
removal conflicted with NACARA itself. We therefore grant
the petition and remand for further proceedings.2
I. BACKGROUND
Lezama entered the United States without inspection from
Nicaragua. He has remained in this country continuously
since at least April 1993 (other than the March 2004 incident
in question here where he drove into Mexico).3 He was sub-
ject to an order of removal, having had a prior asylum appli-
cation denied in absentia in 1997. In March of 2000,4
1
Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997) (codified as
amended in statutory notes following 8 U.S.C. § 1255).
2
The BIA also affirmed the IJ’s denial of Lezama’s applications for asy-
lum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). We uphold those aspects of the BIA’s decision in a sep-
arate memorandum disposition filed concurrently with this opinion.
3
Several documents in the administrative record indicate that Lezama
entered in March or April 1993, although an earlier asylum application
suggests that he first entered in April 1991. In any event, the record is
undisputed that he was present in the United States continuously from
April 1993 until March 25, 2004.
4
The exact date of his NACARA § 202 application is unclear — a U.S.
Citizenship and Immigration Services document indicates it was filed on
March 31, 2000, although Lezama had stated it was filed on March 27,
2000. A different document refers to a “receipt date” of May 16, 2000.
The application date is important because NACARA requires an applica-
tion to have been filed before April 1, 2000. NACARA § 202(a)(1)(A).
20462 LEZAMA-GARCIA v. HOLDER
however, he applied for relief under NACARA § 202 — a
provision excusing both his prior entry without inspection and
the pending 1997 order of removal — to adjust his status to
that of an alien lawfully admitted for permanent residence.
NACARA is powerful legislation for an alien like Lezama
who has no criminal record. Enacted in 1997 in response to
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, 110 Stat. 3009 (1996) (“IIRIRA”), among other
measures, “NACARA § 202 created a new ‘adjustment of sta-
tus’ process for qualified nationals of Nicaragua and Cuba.”
Masnauskas v. Gonzales, 432 F.3d 1067, 1070 (9th Cir.
2005).
NACARA [§ 202] mandated that the Attorney Gen-
eral legalize the status of Nicaraguan and Cuban
nationals unlawfully present in the United States if
they (1) had been physically present in the United
States for a continuous period beginning no later
than December 1, 1995 through the date of the appli-
cation for relief; (2) applied for adjustment of status
before April 1, 2000; (3) were otherwise eligible to
receive an immigrant visa; and (4) were otherwise
admissible to the United States for permanent resi-
dence.
Frech v. U.S. Attorney Gen., 491 F.3d 1277, 1279 (11th Cir.
2007).5 That is, if a NACARA § 202 applicant is eligible, the
status of the alien “shall be adjusted by the Attorney General
to that of an alien lawfully admitted for permanent resi-
dence[.]” NACARA § 202(a)(1) (emphasis added). Further,
while an application is pending, a NACARA § 202 applicant
is entitled to a stay of removal, and a grant of work authoriza-
tion. Id. §§ 202(c)(1) & (2).
5
Congress subsequently repealed the third condition (“otherwise avail-
able to receive an immigrant visa”). NACARA — Technical Corrections
§ 1(a)(2), Pub. L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997).
LEZAMA-GARCIA v. HOLDER 20463
Lezama appears to have met the eligibility requirements for
§ 202(a) relief. Although not entirely clear, his application
was apparently filed before April 1, 2000. He was physically
present in the United States before December 1, 1995, and
such presence continued uninterrupted until the date he
applied. See id. § 202(b)(1).6 He appears to have been “other-
wise admissible” as he had no criminal history. The legacy
Immigration and Naturalization Service (“INS”) had com-
pleted “preliminary processing” of his application, but
Lezama was awaiting an interview in 2004. Meanwhile,
Lezama had NACARA work authorization, and the prior
removal order was stayed.
On March 25, 2004, Lezama was driving a company truck
from Long Beach, California, to a company office in San Diego.7
He could not locate his destination, and found himself in traf-
fic on the “I-5” freeway going toward the Mexico border near
San Ysidro, California. As he neared the border, he was
unable to locate an exit and tried to move out of traffic, but
a police officer motioned for him to keep going. He drove into
Mexico, immediately turned around to come back to the
United States, but was turned away. Specifically, Lezama
describes the circumstances of his unplanned departure from
the United States, in part, as follows:
6
NACARA § 202(b)(1) provides:
The benefits provided by [§ 202(a)] shall apply to any alien who
is a national of Nicaragua or Cuba and who has been physically
present in the United States for a continuous period, beginning
not later than December 1, 1995, and ending not earlier than the
date the application for adjustment under such subsection is filed,
except an alien shall not be considered to have failed to maintain
continuous physical presence by reason of an absence, or
absences, from the United States for any periods in the aggregate
not exceeding 180 days.
7
This factual description of the March 25, 2004 incident is taken from
Lezama’s translated verified declaration, which the government did not
dispute and which the IJ accepted as accurate.
20464 LEZAMA-GARCIA v. HOLDER
I was not familiar with the area of San Diego, having
been there only once before in my life. I arrived in
San Diego at about 6:15 a.m. that morning. I was on
Interstate Highway 5 south; however, I could not
locate the appropriate offramp to the company
office. I continued driving south on 5 and before I
knew it I was in the area of San Ysidro, California
near the United States/Mexican border. As I got
close to the border I was looking for a way to turn
the truck around in order to head back north. I
worked my way out of the traffic toward the side of
freeway 5 and slowed down looking for a place to
stop; however, there was a police officer in the area
who yelled in my direction saying, “Let’s go, let’s
go,” while motioning with his hand for me to con-
tinue south. I figured that there must be a place fur-
ther south on the American side of the border where
I could make a Uturn [sic] or exit in order to head
back north on 5. So I proceeded slowly south on 5
looking for a U-turn or an exit; however, before I
knew it I was in the flow of traffic being funneled
through the exit to Mexico, unable to stop. The next
thing I knew I had unintentionally crossed the United
States/Mexican border into Mexico.
When he turned around, Lezama was refused admission at the
San Ysidro Port of Entry because he lacked a valid entry doc-
ument. Desperate, he tried again four days later at the Otay
Mesa Port of Entry, with someone else’s identification, and
was detained.
Lezama was subsequently charged in a Notice to Appear
with being an “arriving alien” subject to removal under 8
U.S.C. § 1182(a)(7)(A)(i)(I) because he lacked valid entry
documents when applying for admission. Lezama filed a
motion to terminate removal proceedings, contending he was
not an “arriving alien.”8 He argued that, because he did not
8
An “arriving alien” is defined by regulation in pertinent part as “an
applicant for admission coming or attempting to come into the United
States at a port-of-entry.” 8 C.F.R. § 1001.1(q).
LEZAMA-GARCIA v. HOLDER 20465
intend to depart the United States, he was not making an
“entry” into the country when he returned. The IJ acknowl-
edged Lezama’s inadvertent departure but, given the pending
removal order against him, the IJ denied the motion to termi-
nate. The IJ reasoned:
[i]f the only problem we had here was the fact that
Mr. Lezama left the United States inadvertently, that
would be something obviously that has to be consid-
ered [but] the problem was there was an in absentia
deportation order pending at the time that he inad-
vertently went across the border. And so he self-
deported himself.
A different IJ later also concluded that Lezama had aban-
doned his pending NACARA § 202 application “as of the
moment of his departure.” The IJ relied on 8 C.F.R.
§ 245.13(k) — part of NACARA’s implementing regulations
— which provides in part:
Unless the applicant files an advance parole request
prior to departing from the United States, and the
Service approves such request, his or her application
for adjustment of status under section 202 of Public
Law 105-100 is deemed to be abandoned as of the
moment of his or her departure.
The IJ reasoned that “[t]he regulation does not speak in
terms of a[n] ‘inadvertent’ or ‘involuntary’ departure . . . it
simply declares that any alien who departs the United States
without advanced parole (as [Lezama] did) abandons his
application for NACARA adjustment.” The IJ was “unwilling
to graft onto the regulation[’s] language a ‘voluntary depar-
ture’ proviso.” Accordingly, the IJ ordered Lezama removed
after finding him inadmissible under § 1182(a)(7)(A)(i)(I).
The BIA affirmed and adopted the IJ’s decision in an
unpublished, one-judge, per curiam order. As for NACARA,
the BIA’s reasoning (in full) was as follows:
20466 LEZAMA-GARCIA v. HOLDER
We adopt and affirm the decision of the Immigration
Judge with the following additions. See Matter of
Burbano, 20 I&N Dec. 872, 874 (BIA 1994) ([paren-
thetical omitted]). We agree that [Lezama’s] depar-
ture from the United States, while his application for
adjustment of status was pending, effected the aban-
donment of his application for adjustment of status
pursuant to NACARA. See section 245 of the Act, at
Note 9; see also 8 C.F.R. § 1245.13(k)(1). Thus,
[Lezama’s] application for adjustment of status, pur-
suant to the NACARA, was properly denied.
Lezama then filed this timely petition for review. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a).
II. STANDARDS OF REVIEW
A. We Review Both the IJ and BIA Decisions
Where the BIA adopts and affirms the IJ’s decision by cit-
ing Matter of Burbano, it is adopting the IJ’s decision in its
entirety. See Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th
Cir. 2005) (en banc). And where the BIA conducts its own
review of the evidence and law, the court’s “review is limited
to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957
(9th Cir. 2006) (internal quotation marks omitted).
Here, the BIA cited Matter of Burbano and stated that it
made “the following additions.” It is not clear whether the
BIA’s “additions” refer to NACARA or only to asylum, but
as to NACARA it appears the BIA “provided its own review
of the evidence and the law” and so “we review both the IJ
and the BIA’s decision.” Joseph v. Holder, 600 F.3d 1235,
1239-40 (9th Cir. 2010).
LEZAMA-GARCIA v. HOLDER 20467
B. We Give “Skidmore Deference” to Nonprecedential
BIA Decisions Interpreting Statutory Provisions
“We review de novo the BIA’s determination of questions
of law, except to the extent that deference is owed to its inter-
pretation of the governing statutes and regulations.” Garcia-
Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006).
“We apply Chevron deference to the Board’s interpretations
of ambiguous immigration statutes, if the Board’s decision is
a published decision.” Guevara v. Holder, 649 F.3d 1086,
1089 (9th Cir. 2011). Where — as here — a BIA decision
interpreting a statute is “unpublished and issued by a single
member of the BIA[,] it does not carry the force of law, and
[ ] is accorded only Skidmore [v. Swift & Co., 323 U.S. 134
(1944)] deference proportional to its thoroughness, reasoning,
consistency, and ability to persuade.” Mejia-Hernandez v.
Holder, 633 F.3d 818, 822 (9th Cir. 2011) (citing Garcia-
Quintero, 455 F.3d at 1012-15).
Under Skidmore, “we defer to the BIA’s determination only
to the extent that it has power to persuade.” Saavedra-
Figueroa v. Holder, 625 F.3d 621, 625 (9th Cir. 2010); see
also Edu v. Holder, 624 F.3d 1137, 1143 (9th Cir. 2010) (rea-
soning that “[t]he weight accorded to an administrative judg-
ment in a particular case will depend upon [among other
factors] the thoroughness evident in its consideration”) (quot-
ing United States v. Mead Corp., 533 U.S. 218, 228 (2001)
(some editorial marks omitted)).
C. We Give “Substantial Deference” to an Agency’s
Reasonable Interpretations of its Ambiguous
Regulations
In contrast, an agency’s interpretation of its regulations is
given “substantial deference,” which differs slightly from the
traditional “Chevron deference” given to agency interpreta-
tions of statutes. See, e.g., Lal v. INS, 255 F.3d 998, 1004 n.3
(9th Cir. 2001) (“Because this case involves the interpretation
20468 LEZAMA-GARCIA v. HOLDER
by the BIA of its own regulation (and not the language of a
statute) we look to the line of cases including Shalala v.
Guernsey Memorial Hospital, 514 U.S. 87 (1995), Thomas
Jefferson University v. Shalala, 512 U.S. 504 (1994), and
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945),
and not the line of cases involving interpretations by agencies
of Congressional legislation, including Chevron v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).”).
“When the meaning of regulatory language is ambiguous,
the agency’s interpretation of the regulation controls ‘so long
as it is “reasonable,” that is, so long as the interpretation sen-
sibly conforms to the purpose and wording of the regula-
tions.’ ” Lal, 255 F.3d at 1004 (quoting Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144,
150-51 (1991)). The court defers “unless an ‘alternative read-
ing is compelled by the regulation’s plain language or by
other indications of the Secretary’s intent at the time of the
regulation’s promulgation.’ ” Thomas Jefferson Univ., 512
U.S. at 512 (quoting Gardebring v. Jenkins, 485 U.S. 415,
430 (1988)). Stated another way, agency interpretations of its
ambiguous regulations are “controlling unless plainly errone-
ous or inconsistent with the regulation” or there is other “rea-
son to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter in ques-
tion.” Auer v. Robbins, 519 U.S. 452, 461, 462 (1997) (inter-
nal quotation marks and citation omitted). Such agency
interpretations can be controlling even if advanced for the
first time in a legal brief. Talk Am., Inc. v. Mich. Bell Tel. Co.,
131 S. Ct. 2254, 2260 (2011) (citing Chase Bank USA, N.A.
v. McCoy, 131 S. Ct. 871, 880-81 (2011)).
III. DISCUSSION
A. Inadmissibility and NACARA
Lezama contends that his departure on March 25, 2004 was
“unintentional,” “involuntary,” or “inadvertent.” He did not
LEZAMA-GARCIA v. HOLDER 20469
plan to leave the United States, had no purpose to enter Mex-
ico, and did not want to or intend to abandon his pending
NACARA § 202 application. And indeed the government
does not dispute the circumstances of Lezama’s departure.
Rather, the question is whether his intent makes any differ-
ence. The government’s position — as the IJ and BIA con-
cluded — is that Lezama’s subjective intent is irrelevant.
Lezama raises his “unintentional” state-of-mind argument
in two contexts: (1) in challenging the determination that he
was an “inadmissible” “arriving alien” and therefore remov-
able, and (2) in challenging the conclusion that he abandoned
his pending NACARA § 202 application for adjustment of
status. He argues that because he did not “intend” to depart,
he did not abandon his application when he drove into Mexico
and was not “seeking entry” when he turned around to come
back. See generally Rosenberg v. Fleuti, 374 U.S. 449, 462
(1963) (reasoning that “innocent, casual, and brief” departures
by a resident alien are ‘unintended’ and do not interrupt resi-
dence so as to subject an alien to potential consequences of
an ‘entry’ on return).
Lezama’s argument, however, relies on concepts of “entry”
and “voluntariness” that were superceded by IIRIRA, effec-
tive April 1, 1997. See, e.g., Camins v. Gonzales, 500 F.3d
872, 876-79 (9th Cir. 2007) (detailing the history and applica-
tion of the “Fleuti doctrine,” and explaining how IIRIRA
abolished the doctrine, at least in part). Nevertheless, the con-
cepts are still relevant as some aspects have survived, and are
important in understanding the meaning of the current legal
structure. Thus, before analyzing the effect, if any, of Leza-
ma’s intent under existing law, we briefly review the prior
regime.
1. IIRIRA Changed the Concept of “Entry” to
“Admission”
Prior to passage of IIRIRA, aliens coming to the United
States seeking “entry” were subject to “exclusion” proceed-
20470 LEZAMA-GARCIA v. HOLDER
ings, whereas aliens already present in the United States were
subject to “deportation” proceedings. See Hing Sum v.
Holder, 602 F.3d 1092, 1099-1100 (9th Cir. 2010). Those
physically present in the country — including those having
entered illegally without inspection — had advantages over
those seeking “entry.” See, e.g., Landon v. Plasencia, 459
U.S. 21, 26 (1982) (“[A] deportation hearing has a number of
substantive rights not available to the alien who is denied
admission in an exclusion proceeding[.]”). “This so called
‘entry doctrine’ resulted in an anomaly.” Hing Sum, 602 F.3d
at 1100. “[N]on-citizens who had entered without inspection
could take advantage of the greater procedural and substantive
rights afforded in deportation proceedings, while non-citizens
who presented themselves at a port of entry for inspection
were subjected to more summary exclusion proceedings.” Id.
The Immigration and Nationality Act (“INA”) had defined
“entry” as follows:
The term “entry” means any coming of an alien into
the United States, from a foreign port or place or
from an outlying possession, whether voluntarily or
otherwise, except that an alien having a lawful per-
manent residence in the United States shall not be
regarded as making an entry into the United States
for the purposes of the immigration laws if the alien
proves to the satisfaction of the Attorney General
that his departure to a foreign port or place or to an
outlying possession was not intended or reasonably
to be expected by him or his presence in a foreign
port or place or in an outlying possession was not
voluntary[.]
8 U.S.C. § 1101(a)(13) (repealed 1996) (emphasis added). In
interpreting whether a departure was “intended” and “volun-
tary,” Fleuti held that only “meaningfully interruptive” depar-
tures from the United States subject a resident alien to the
INA’s entry requirements. 374 U.S. at 462. Accordingly, law-
LEZAMA-GARCIA v. HOLDER 20471
ful resident aliens who made an “innocent, casual, and brief”
trip outside the United States — such as what Lezama appears
to have made — did not “intend” to “depart,” were not seek-
ing “entry” into the United States, and thus were generally not
subject to “exclusion” proceedings.
Although § 1101(a)(13)’s exception for unintended, invol-
untary (“innocent, casual, and brief”) departures was limited
to aliens “having a lawful permanent residence in the United
States,” we recognized that the exception could apply in other
situations, where Congress so provided. See Aguilera-Medina
v. INS, 137 F.3d 1401, 1404 (9th Cir. 1998) (holding that “the
Fleuti doctrine extends to lawful temporary residents in the
[Special Agricultural Workers] program on the same terms as
to lawful permanent residents”); Mendoza v. INS, 16 F.3d
335, 337 (9th Cir. 1994) (“Barring a congressional mandate,
such as 8 U.S.C. §§ 1254(b)(2) and 1255a(a)(3)(B), the Fleuti
doctrine applies only to lawful permanent resident aliens.”).
Effective April 1, 1997, however, IIRIRA replaced “entry”
with a new concept — “admission.” Section 1101(a)(13) now
uses the term “admission” to include a “lawful entry” as fol-
lows:
(A) The terms “admission” and “admitted” mean,
with respect to an alien, the lawful entry of the alien
into the United States after inspection and authoriza-
tion by an immigration officer.
....
(C) An alien lawfully admitted for permanent resi-
dence in the United States shall not be regarded as
seeking an admission into the United States for pur-
poses of the immigration laws unless the alien —
(i) has abandoned or relinquished that sta-
tus,
20472 LEZAMA-GARCIA v. HOLDER
(ii) has been absent from the United States
for a continuous period in excess of 180
days,
(iii) has engaged in illegal activity after
having departed the United States,
(iv) has departed from the United States
while under legal process seeking removal
of the alien from the United States, includ-
ing removal proceedings under this chapter
and extradition proceedings,
(v) has committed an offense identified in
section 1182(a)(2) of this title, unless since
such offense the alien has been granted
relief under section 1182(h) or 1229b(a) of
this title, or
(vi) is attempting to enter at a time or place
other than as designated by immigration
officers or has not been admitted to the
United States after inspection and authori-
zation by an immigration officer.
Congress “eliminated the key terms ‘entry’ and ‘intended’
from [§ 1101(a)(13)] and replaced the former statute with a
comprehensive scheme for determining the classification of
returning aliens.” Camins, 500 F.3d at 879 (quoting Tineo v.
Ashcroft, 350 F.3d 382, 391 (3d Cir. 2003)). Eliminating
“entry” and “intended” — which formed the central basis for
the reasoning in Fleuti — also effectively “abrogated the
Fleuti doctrine” (at least in the admissibility context). Id. at
878-80 (citing Matter of Collado-Munoz, 21 I. & N. Dec.
1061, 1065 (BIA 1998) (en banc)). The new § 1101(a)(13) is
“a complete makeover of [§ 1101(a)(13)] . . . specifically
intended to supplant the subjective intent inquiry that was a
feature of the old law.” Id. at 879 (quoting Tineo, 350 F.3d at
LEZAMA-GARCIA v. HOLDER 20473
393). IIRIRA also replaced deportation and exclusion pro-
ceedings with more general “removal” proceedings. Hing
Sum, 602 F.3d at 1100. In short, “ ‘admission’ now deter-
mines whether a non-citizen is subject to grounds of deporta-
bility or inadmissibility within the context of a removal
proceeding.” Id.
Notably, IIRIRA replaced Fleuti’s subjective intent stan-
dard (for lawful permanent residents) with an objective 180-
day period of allowed absence from the United States, regard-
less of intent. See 8 U.S.C. § 1101(a)(13)(C)(ii). “The final
version of [§ 1101(a)(13)] . . . pays homage to Fleuti by pre-
sumptively treating all trips abroad lasting 180 days or fewer
as inconsequential to permanent resident status.” Tineo, 350
F.3d at 394. It “fully recognizes the increase in cross-border
travel and the notion that innocent, casual, and brief trips
abroad should not interrupt an alien’s permanent residency.”
Id. Although generally abrogated, “an aspect of Fleuti is pre-
served.” Id.
“Congress amended section [1101(a)(13)] of the [INA]
simply to eliminate that aspect of the ‘entry doctrine’ that per-
mitted aliens who had entered without inspection to have
greater procedural and substantive rights in deportation pro-
ceedings than those who had presented themselves for inspec-
tion at a port of entry and had been placed in exclusion
proceedings.” In re Quilantan, 25 I. & N. Dec. 285, 291 (BIA
2010) (citations omitted). This intent is evident in the mean-
ing of the term “lawful entry” in § 1101(a)(13)(A) (defining
“ ‘admission’ and ‘admitted’ [to] mean . . . the lawful entry
of the alien into the United States”). “Lawful entry” refers to
an entry “involving ‘inspection and admission by an immigra-
tion officer,’ as opposed to those ‘unlawful’ entries involving
‘actual and intentional evasion of inspection at the nearest
inspection point.’ ” Hing Sum, 602 F.3d at 1101 (quoting
Matter of Pierre, 14 I. & N. Dec. 467, 468 (1973)).
IIRIRA, then, was directed in part at aliens (like Lezama)
who had entered the United States without inspection. After
20474 LEZAMA-GARCIA v. HOLDER
IIRIRA, if such aliens depart and attempt to reenter, they will
be “arriving aliens” and will be “inadmissible.”
Here enters the importance of NACARA — for certain
aliens, NACARA essentially gave back some of what IIRIRA
took away.
2. Applicants for Adjustment of Status under NACARA
§ 202
Congress “enacted NACARA in 1997 to ameliorate some
of the harsher effects of IIRIRA for nationals of certain coun-
tries [— primarily Nicaragua and Cuba].” Masnauskas, 432
F.3d at 1070.
NACARA . . . was intended to favor aliens who had
taken unusual risks in escaping from oppressive gov-
ernments or whose countries had been ravaged by
war. The enactment of NACARA was a rational dip-
lomatic decision to encourage such aliens to remain
in the United States. Nicaraguan aliens were a partic-
ular concern of Congress because of United States’
involvement in the civil war in Nicaragua, the large
number of Nicaraguan asylum-seekers in the 1980s,
and a history of special programs for Nicaraguan
aliens under the Carter and Reagan administrations.
Id. at 1071 (citations omitted). As explained by one of its
sponsors,
[NACARA] incorporates an agreement . . . between
House and Senate negotiators to correct provisions
in last year’s immigration law [IIRIRA]. These pro-
visions . . . would have had the effect of changing
the rules in the middle of the game for thousands of
Central Americans and others who came to the
United States because their lives and families had
LEZAMA-GARCIA v. HOLDER 20475
been torn apart by war and oppression and are seek-
ing permanent residency here.
. . . . Nicaraguans who were in the United States
prior to January 1, 1995 will be permitted to adjust
to permanent residence — and get green cards — if
they have maintained a continuous presence here.
The same right will be extended to their Nicaraguan
spouses and children.
143 Cong. Rec. S12261 (daily ed. Nov. 9, 1997) (statement
of Sen. Abraham), available at 1997 WL 693186.9 Senators
explained that
The purpose of this Act is to ensure that nationals of
certain specified countries . . . are accorded a fair
and equitable opportunity to demonstrate that, under
the legal standards established by this Act, they
should be permitted to remain, and pursue permanent
resident status, in the United States.
In recognition of the hardship that those eligible
for relief suffered in fleeing their homelands . . . the
Congress directs the Department of Justice and the
Immigration and Naturalization Service to adjudicate
applications for relief under this Act expeditiously
and humanely.
143 Cong. Rec. S12266 (daily ed. Nov. 9, 1997) (Explanatory
Memorandum Regarding NACARA submitted by Senators
Mack, Graham, Abraham, Kennedy, and Durbin), available at
1997 WL 693186.
9
The intent is also demonstrated by a parallel provision, NACARA
§ 203, which reinstated certain changes IIRIRA had made to suspension
of deportation qualifications that had an unfairly retroactive effect for
some aliens. See, e.g., Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1096
(9th Cir. 2005); Masnauskas, 432 F.3d at 1070.
20476 LEZAMA-GARCIA v. HOLDER
[1] “NACARA grants similarly situated immigrants from
Cuba and Nicaragua the opportunity to become lawful perma-
nent residents independent of the Attorney General’s favor-
able discretion.” Eli Coffino, Long Road to Residency: The
Legal History of Salvadoran & Guatemalan Immigration to
the United States with a Focus on NACARA, 14 Cardozo J.
Int’l & Comp. L. 177, 178 (2006) (emphasis added). “[Sec-
tion 202] of NACARA is as close to a free pass for American
residence as the INS grants.” Id. at 192 (citing Patrick E.
Caldwell, NACARA: Minotaur or Midas?, 53 SMU L. Rev.
1559, 1573 (2000)).
[2] With this intent, Congress promulgated NACARA
§ 202. As summarized earlier, § 202(a) provides that aliens
who (1) applied before April 1, 2000, (2) had maintained a
“continuous physical presence” in the United States before
applying, and (3) were “otherwise admissible,” shall have
their status adjusted to a lawful permanent resident. Section
202(a) specifically excuses some statutory grounds of inad-
missibility, stating that “in determining . . . admissibility the
grounds for inadmissibility specified in [8 U.S.C.
§§ 1182(a)(4), (5), (6)(A), (7)(A), and (9)(B)] shall not
apply.” One of these excused grounds is § 1182(a)(6)(A)10 —
including aliens (like Lezama) who had entered without
inspection. In effect, then, NACARA § 202 reinstated an
aspect of the pre-IIRIRA “entry doctrine” for eligible aliens.
[3] NACARA § 202 also partially codified another aspect
of the pre-IIRIRA “Fleuti doctrine.” Just as IIRIRA in 8
U.S.C. § 1101(a)(13)(C)(ii) “pays homage to Fleuti by pre-
sumptively treating all trips abroad lasting 180 days or fewer
as inconsequential to permanent resident status,” Tineo, 350
F.3d at 394, NACARA § 202 also “pays homage to Fleuti” by
10
Section 1182(a)(6)(A)(i) provides:
An alien present in the United States without being admitted or
paroled, or who arrives in the United States at any time or place
other than as designated by the Attorney General, is inadmissible.
LEZAMA-GARCIA v. HOLDER 20477
allowing an alien up to 180 days outside the country prior to
applying, while still having maintained the necessary “contin-
uous physical presence” to qualify to seek relief. In this
regard, § 202(b) provides:
Aliens eligible for adjustment of status. —
(1) In general. — The benefits provided by subsec-
tion (a) [of this note] shall apply to any alien who is
a national of Nicaragua or Cuba and who has been
physically present in the United States for a continu-
ous period, beginning not later than December 1,
1995, and ending not earlier than the date the appli-
cation for adjustment under such subsection is filed,
except an alien shall not be considered to have failed
to maintain continuous physical presence by reason
of an absence, or absences, from the United States
for any periods in the aggregate not exceeding 180
days.
(Emphasis added.)
[4] And, as stated above, NACARA § 202(c) authorizes a
stay of any pending removal order:
(1) In general. — The Attorney General shall pro-
vide by regulation for an alien subject to a final order
of deportation or removal to seek a stay of such
order based on the filing of an application under sub-
section (a) [of this note].
(2) During certain proceedings. — Notwithstanding
any provision of the Immigration and Nationality
Act [8 U.S.C. § 1101 et seq.], the Attorney General
shall not order any alien to be removed from the
United States, if the alien is in exclusion, deporta-
tion, or removal proceedings under any provision of
such Act and has applied for adjustment of status
20478 LEZAMA-GARCIA v. HOLDER
under subsection (a) [of this note], except where the
Attorney General has rendered a final administrative
determination to deny the application.
That is, if an application is pending, the Attorney General11
“shall not order any alien to be removed.” NACARA
§ 202(c)(2).
With these principles established, we now examine whether
Lezama abandoned his NACARA § 202 application for
adjustment of status when he drove into Mexico.
B. Abandonment and 8 C.F.R. § 245.13(k)(1)
1. The IJ’s Reading Is Inconsistent with the
Regulation’s Plain Language and Context
The IJ concluded that Lezama abandoned his application
“as of the moment” he departed the United States without
seeking prior permission in the form of advance parole. The
applicable regulation, 8 C.F.R. § 245.13(k)(1), provides in full:12
(k) Parole authorization for purposes of travel —
(1) Travel from and return to the United States while
the application for adjustment of status is pending. If
an applicant for benefits under section 202 of Pub.
11
NACARA’s reference to the “Attorney General” now refers to the
Secretary of Homeland Security as well. See Homeland Security Act of
2002, Pub. L. No. 107-296, § 1517, 116 Stat. 2135, 2311 (codified at 6
U.S.C. § 557). See, e.g., Diouf v. Napolitano, 634 F.3d 1081, 1085 n.5 (9th
Cir. 2011) (“[W]e refer to the Attorney General rather than the Secretary
of Homeland Security to maintain conformity with the language of the
statutes themselves.”).
12
Section 245.13(k)(1) is the Department of Homeland Security regula-
tion; it is identical to 8 C.F.R. § 1245.13(k)(1), which is the provision gov-
erning the Executive Office for Immigration Review. See, e.g., Bona v.
Gonzales, 425 F.3d 663, 665 n.1 (9th Cir. 2005).
LEZAMA-GARCIA v. HOLDER 20479
Lans. Ch. 105-100 desires to travel outside, and return to,
the United States while the application for adjust-
ment of status is pending, he or she must file a
request for advance parole authorization on an
Application for Travel Document (Form I-131), with
fee as set forth in § 103.7(b)(1) of this chapter and
in accordance with the instructions on the form. If
the alien is either in deportation or removal proceed-
ings, or subject to a final order of deportation or
removal, the Form I-131 must be submitted to the
Assistant Commissioner for International Affairs;
otherwise the Form I-131 must be submitted to the
director of the Texas Service Center, who shall have
jurisdiction over such applications. Unless the appli-
cant files an advance parole request prior to depart-
ing from the United States, and the Service approves
such request, his or her application for adjustment of
status under section 202 of Public Law 105-100 is
deemed to be abandoned as of the moment of his or
her departure. Parole may only be authorized pursu-
ant to the authority contained in, and the standards
prescribed in, section 212(d)(5) of the Act [8 U.S.C.
§ 1182(d)(5) regarding parole into the United States
for humanitarian reasons].
Id. (emphases added).
In deeming Lezama’s application abandoned, the IJ relied
specifically on the emphasized third sentence of the regulation
(“Unless the applicant files an advance parole request prior to
departing from the United States . . . his or her application . . .
is deemed to be abandoned as of the moment of his or her
departure.”). The BIA’s per curiam order simply agreed with
the IJ on this point, with no further analysis.
[5] This reading, however, ignores the first sentence of the
regulation, and as a result fails to read the entire regulation in
20480 LEZAMA-GARCIA v. HOLDER
context.13 Section 245.13(k)(1) begins with a clear limitation:
“[i]f [a NACARA § 202 applicant] desires to travel outside,
and return to, the United States . . . .” (Emphasis added). Read
in context, the rest of the regulation is likewise limited to and
applies only if an applicant fails to obtain advance parole and
that applicant had “desired” to travel outside and return to the
United States. The regulation requires prior approval if an
applicant plans to travel outside the United States — but one
cannot gain prior approval for an accident.
[6] The regulation as a whole simply does not address the
situation where a NACARA § 202 applicant never “desired
to” (i.e., never “planned to” or “intended to” or “had a pur-
pose to”) travel outside the United States. As a result, the con-
sequence of failing to obtain advance parole (abandonment)
does not apply to an “undesired” or inadvertent departure.
Effectively, abandonment occurs only for a desired departure
absent advance parole.
[7] In their decisions, neither the IJ nor the BIA mentions
the conditional limiting language. The IJ relied exclusively on
the third sentence of the regulation without considering the
overriding limitation. But the regulation must be read as a
whole. By ignoring the “desired” requirement, the IJ necessar-
ily misinterpreted the meaning of the regulation’s third sen-
tence. Cf. Singh v. Holder, 649 F.3d 1161, 1167 (9th Cir.
2011) (en banc) (reasoning that the third clause of the statute
at issue was “linked by its language and context directly to”
the first clause). Thus, the BIA’s and IJ’s interpretation of
§ 245.13(k)(1) was “unreasonable” and does not “sensibly
13
See Dada v. Mukasey, 554 U.S. 1, 16 (2008) (“In reading a statute we
must not look merely to a particular clause, but consider in connection
with it the whole statute.”) (internal quotation marks omitted); Kucana v.
Holder, 130 S. Ct. 827, 835 (2010) (reiterating that a term in an immigra-
tion statute “must draw its meaning from its context”) (quoting Ardestani
v. INS, 502 U.S. 129, 135 (1991)); Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)
(“[W]e construe language in its context and in light of the terms surround-
ing it.”). This rule of interpretation applies equally to regulations.
LEZAMA-GARCIA v. HOLDER 20481
conform[ ] to the purpose and wording of the regulation[.]”
Lal, 255 F.3d at 1004. It is unreasonable to deem a NACARA
§ 202 application abandoned for failing to do something
(obtain advance parole) that an applicant could not have done
(because the departure was unplanned). Our reading — that
abandonment for lack of advance parole does not apply if
travel was not desired — is “compelled by the regulation’s
plain language.” Id.
Although the BIA may have provided “its own review of
the [regulation],” Joseph, 600 F.3d at 1239, we give its deci-
sion no deference under Auer. Its per curiam order was
decided under 8 C.F.R. § 1003.1(e) by a single-member. Such
a decision is not precedential. See Garcia-Quintero, 455 F.3d
at 1012-13 (“A case must be decided by a three-member panel
if it presents ‘[t]he need to establish a precedent construing
the meaning of laws, regulations, or procedures.’ ”) (citing 8
C.F.R. § 1003.1(e)(6)(ii)). Garcia-Quintero analyzed what
deference we give to such a single-member BIA decision
interpreting a statutory provision, and concluded such deci-
sions are accorded only Skidmore deference in proportion to
their power to persuade. Id. at 1014-15. For a similar reason,
the BIA’s decision here is entitled to no deference under Auer
as an agency interpretation of a regulation. The nature of this
one-member, non-precedential, BIA order — one that does
not explain its reasoning — “does not reflect the agency’s fair
and considered judgment on the matter in question.” 519 U.S.
at 462. See Joseph v. Holder, 579 F.3d 827, 833-35 (7th Cir.
2009) (applying Auer, reasoning in part that an interpretation
in a single-member, non-precedential, BIA decision was
inconsistent with the plain language of a regulation).14
14
The BIA appears to have also considered statutory provisions. It cited
to “section 245 of the Act, at Note 9,” which could refer to NACARA
itself or some other provision of 8 U.S.C. § 1255 regarding abandonment.
Further, 8 U.S.C. § 1101(a)(13) regarding “admission” is also at issue. To
the extent the BIA here was interpreting statutes, we also do not defer
because of the cursory nature of its unpublished, non-precedential, single-
20482 LEZAMA-GARCIA v. HOLDER
We also owe the government’s interpretation no deference
under Chase Bank USA, 131 S. Ct. at 880-81 (indicating that
a court defers to an agency’s interpretation of its own regula-
tion, even if only advanced in a legal brief, unless “plainly
erroneous or inconsistent with the regulation”) (quoting Auer,
519 U.S. at 461). The government, like the BIA and IJ below,
did not address the limiting language (“desired”) in
§ 245.13(k)(1). And its argument (like the IJ’s decision) —
that the third sentence in the regulation plainly deems any
departure without advance parole to be an abandonment —
improperly isolates the sentence untethered from its context.
It is therefore “plainly erroneous” and “inconsistent with the
regulation.” Auer, 519 U.S. at 461.
2. Our Reading Is Consistent With Other Provisions
Our reading limiting abandonment to “desired” departures
is bolstered by, and completely consistent with, other aspects
of the statute and its regulations.
When promulgating NACARA’s regulations, rule-makers
specifically addressed the possibility of travel outside the
United States while an application was pending. In so doing,
rule-makers did not state that any unapproved absence would
member order. See Garcia-Quintero, 455 F.3d at 1012. The BIA simply
stated that Lezama’s departure “effected the abandonment of his applica-
tion,” citing the statute and 8 C.F.R. § 1245.13(k)(1). Indeed, the BIA
erroneously noted that Lezama “does not specifically contest the Immigra-
tion Judge’s denial of his motion to terminate proceedings,” when Lezama
had in fact argued he was not an “arriving alien.” See Edu, 624 F.3d at
1143 (reasoning that “[t]he weight accorded to an administrative judgment
in a particular case will depend upon [among other factors] the thorough-
ness evident in its consideration”). That is, we need not defer because the
BIA’s order has no “power to persuade.” See, e.g., Shin v. Holder, 607
F.3d 1213, 1219 (9th Cir. 2010) (“Because the BIA’s opinion is conclu-
sory and lacks any meaningful analysis, we owe it no [Skidmore] defer-
ence[.]”).
LEZAMA-GARCIA v. HOLDER 20483
automatically result in abandonment. The interim rules con-
tain the following question-and-answer commentary:
Can an Applicant Travel Outside the United States
While the Application Is Pending?
Nothing in NACARA authorizes the Service to
allow an applicant to re-enter the United States with-
out proper documents. If an applicant plans to leave
the United States to go to any other country, includ-
ing Canada or Mexico, before a decision is made on
his or her NACARA adjustment application, the
applicant should contact the Service to request
advance authorization for parole. If an applicant
leaves the United States without such advance autho-
rization, action on his or her NACARA adjustment
application may be terminated and the application
may be denied. An applicant may also experience
difficulty when returning to the United States if he
or she does not have such advance authorization.
Furthermore, any absence from the United States
without an advance parole authorization issued
prior to departure counts toward the 180-day aggre-
gate time period that the applicant is allowed to be
outside the United States.
63 Fed. Reg. 27823 (May 21, 1998) (emphases added), avail-
able at 1998 WL 253314. The commentary speaks in terms
of a “planned” departure and only states that an application
“may be terminated” — not “will be terminated” — if an
applicant does not obtain advanced parole. More importantly,
an application survives a non-authorized departure, although
the non-authorized time counts towards the 180-day limit:
“any absence from the United States without an advance
parole authorization issued prior to departure counts toward
the 180-day aggregate time period that the applicant is
allowed to be outside the United States.” If an unauthorized
departure was intended to result in an automatic abandonment
20484 LEZAMA-GARCIA v. HOLDER
of a NACARA application, then such a departure could not
count towards the 180-day limit. There is no per se abandon-
ment in the regulation.
Moreover, NACARA itself contemplates departures, and
allows up to 180 days outside the United States prior to apply-
ing without interrupting the “continuous physical presence” in
the country necessary to qualify for NACARA relief. See
NACARA § 202(b)(1). Thus, although there is no basis for
resurrecting Fleuti’s “innocent, casual, and brief” exception,
our reading is nevertheless consistent with Congress’ recogni-
tion that some departures from the country should have no
immigration consequences.
And indeed, § 202(b)(1)’s corresponding regulation (8
C.F.R. § 245.13(a)(2)) does not even limit the statutory 180
days of excused absences to the period before applying. Sec-
tion 245.13(a)(2) states that a national of Nicaragua or Cuba
is eligible to apply for adjustment of status under NACARA
§ 202 if the alien
has been physically present in the United States for
a continuous period beginning not later than Decem-
ber 1, 1995, and ending not earlier [than] the date the
application for adjustment is granted, excluding . . .
[a]ny periods of absence from the United States not
exceeding 180 days in the aggregate[.]
(Emphasis added.) Section 245.13(a)(2) thus recognizes that
an alien should also not interrupt a “continuous physical pres-
ence” in the United States after applying, and while the appli-
cation is pending. It includes within the 180-day statutory
period any absences up until the application is actually adjudi-
cated. According to its rule-makers, this regulation clarifies
that “all absences between the last pre-December 2, 1995,
date on which the applicant commenced physical presence
and the date on which the application is approved count
toward the 180-day maximum.” 65 Fed. Reg. 15850 (Mar. 24,
LEZAMA-GARCIA v. HOLDER 20485
2000) (emphasis added). The regulation thus contemplates
departures while an application is pending that do not cause
abandonment of the application.
Last, our reading of § 245.13(k)(1) is also consistent with
Congress’ express intent to “encourage [eligible] aliens to
remain in the United States,” because of a “special diplomatic
concern” for Nicaraguans who arrived before December 1,
1995. Masnauskas, 432 F.3d at 1071. Our reading supports
NACARA’s purpose that “Nicaraguans who were in the
United States prior to January 1, 1995 will be permitted to
adjust to permanent residence — and get green cards — if
they have maintained a continuous presence here.” 143 Cong.
Rec. at S12261. Our reading helps “to ensure that nationals of
[covered countries] are accorded a fair and equitable opportu-
nity to demonstrate that, under the legal standards established
by [NACARA], they should be permitted to remain, and pur-
sue permanent resident status, in the United States.” 143
Cong. Rec. at S12266.
3. Other “Abandonment” Situations Are
Distinguishable
The government, however, points to analogous situations in
immigration law where pending applications for relief are
abandoned upon departure from the United States, regardless
of intent. See Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838
(9th Cir. 2003) (upholding 8 C.F.R. § 1003.4, which deems a
departure from the United States of a person subject to depor-
tation proceedings while an appeal challenging that deporta-
tion is pending to constitute an automatic withdrawal of the
appeal, and rejecting a Fleuti-type exception for “brief,
casual, and innocent” departures); Long v. Gonzales, 420 F.3d
516, 520-21 (5th Cir. 2005) (same). But see Madrigal v.
Holder, 572 F.3d 239, 244 (6th Cir. 2009) (holding that “forc-
ible removal” does not render an appeal automatically with-
drawn under 8 C.F.R. § 1003.4).
20486 LEZAMA-GARCIA v. HOLDER
But these situations are distinguishable — they did not
apply a regulation like § 245.13(k)(1), which limits abandon-
ment to travel that is “desired.” See Aguilera-Ruiz, 348 F.3d
at 839 (concluding that “[u]nder 8 C.F.R. § 1003.4, any vol-
untary departure from the United States following entry of an
order of deportation will be deemed to withdraw a pending
appeal”). See also 8 C.F.R. § 1003.2(d) (deeming a pending
motion to reopen withdrawn upon “any” departure); and 8
C.F.R. § 245.2(a)(4)(ii) (“The departure from the United
States of an applicant who is under exclusion, deportation, or
removal proceedings shall be deemed an abandonment of the
[adjustment of status] application[.]”) (Emphasis added.)
Rule-makers could have chosen not to use the conditional
limiting phrase “if [an applicant] desires to travel” in
§ 245.13(k)(1). The fact that they did must be given some
meaning. Cf. Kucana, 130 S. Ct. at 838 (“[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 pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”) (quoting Nken v. Holder,
556 U.S. ___, ___, 129 S. Ct. 1749, 1759 (2009)); Rodriguez-
Barajas, 624 F.3d at 681 (vacating BIA decision that found
a voluntary departure effected a withdrawal of a pending
habeas petition, reasoning in part that “the presence of limit-
ing language” in 8 C.F.R. § 1003.4 stood in contrast to broad
language “any departure” in § 1003.2(d)).
4. It Is Undisputed That Lezama’s Departure Was Not
“Desired”
The government contends that the IJ did not decide whether
an unintentional departure actually took place. It argues that,
if we “somehow read into the regulation that an unintentional
or mistaken departure does not constitute abandonment” then
we must remand pursuant to INS v. Ventura, 537 U.S. 12, 16-
17 (2002).
LEZAMA-GARCIA v. HOLDER 20487
In proceedings before the IJ, however, the government did
not dispute Lezama’s factual testimony (as set forth in his
translated declaration) regarding how he inadvertently drove
into Mexico. His testimony establishes that he attempted to
avoid crossing the border, but was directed by a police officer
to continue south, only to be caught in the flow of traffic and
“funneled” into Mexico and to be then excluded when he
attempted to reenter. The government accepted those facts
before the IJ, and instead argued that Lezama’s intent was
irrelevant to the abandonment of his NACARA application.
[8] It is well established that “if a party fails to raise an
objection to an issue before judgment, he or she waives the
right to challenge the issue on appeal.” Slaven v. Am. Trading
Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998). Because
the government failed to challenge the factual circumstances
of Lezama’s departure, remand is not warranted. See, e.g.,
Mashiri v. Ashcroft, 383 F.3d 1112, 1123 n.7 (9th Cir. 2004)
(concluding that remand was unnecessary where government
failed to submit evidence challenging factual question);
Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.
2004) (declining to remand where INS failed to present evi-
dence of changed country conditions and did not argue the
point before the IJ or the BIA). It is therefore undisputed that
Lezama did not “desire” to travel outside the United States.
Given our analysis of the plain meaning of the regulation, we
hold that Lezama did not abandon his NACARA § 202 appli-
cation to adjust status.15 The application remains pending.
15
The dissent questions the “legitimacy” of this holding because it “re-
lies on an argument and analysis that has never been advanced by the Peti-
tioner.” Dissent at 20492-93. But Lezama argues — as he did before the
IJ and the BIA — that “[he], a § 202 of NACARA beneficiary, cannot be
deemed to have abandoned his § 245 Application [to adjust status] pursu-
ant to the terms of 8 C.F.R. § 1245.13(k)(1) since he did not intentionally
or voluntarily depart the United States.” Pet’r’s Opening Br. at 12. He
contends he “did not leave the country intentionally or voluntarily; accord-
ingly, pursuant to the reasonable connotation of the word ‘departed’ and
as a ‘necessary implication’ that his acts must be intentional and volun-
20488 LEZAMA-GARCIA v. HOLDER
C. Inconsistency with NACARA — Lezama Cannot Be
Removed
[9] Having established that Lezama’s NACARA § 202
application was not abandoned, it follows that the IJ should
not have ordered him removed. NACARA § 202(c)(2) unam-
biguously provides that
[n]otwithstanding any provision of the Immigration
and Nationality Act, the Attorney General shall not
order any alien to be removed from the United
States, if the alien is in exclusion, deportation, or
removal proceedings under any provision of such
Act and has applied for adjustment of status under
subsection (a) [of this note], except where the Attor-
tary, he cannot be deemed to have left the United States pursuant to 8
C.F.R. § 1245.13(k)(1)[.]” Id. at 13. Thus, Lezama surely “specifically and
distinctly” raises and argues the issue we address here — the meaning and
application of the language of 8 C.F.R. § 245.13(k)(1) as it relates to
NACARA § 202. See Independent Towers of Wash. v. Wash., 350 F.3d
925, 929 (9th Cir. 2003) (“we ‘review only issues which are argued specif-
ically and distinctly in a party’s opening brief.’ ”) (quoting Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)); Mamouzian v.
Ashcroft, 390 F.3d 1129, 1136 (9th Cir. 2004) (“[Petitioner’s] brief may
not be perfectly written, but it is not difficult to discern the point she is
trying to make.”).
While Lezama did not argue the importance of the first clause of the
regulation, he squarely presented us with examining the whole regulation.
That he did not examine the regulation as precisely as we do, or that he
did not research the background of the regulation, does not raise any ques-
tion as to the legitimacy of our holding. See Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before
the court, the court is not limited to the particular legal theories advanced
by the parties, but rather retains the independent power to identify and
apply the proper construction of governing law.”); Aleman v. Glickman,
217 F.3d 1191, 1196 n.3 (9th Cir. 2000) (same). Indeed, “[o]nce the issue
is raised, a court has an obligation to determine what the law is which will
govern the case at hand.” Eldred v. Ashcroft, 255 F.3d 849, 853 (D.C. Cir.
2001) (Sentelle, J., dissenting from the denial of rehearing en banc).
LEZAMA-GARCIA v. HOLDER 20489
ney General has rendered a final administrative
determination to deny the application.
And, as noted above, rule-makers recognized that under
§ 202(c)(2), an applicant who is in removal proceedings may
not be ordered removed “unless and until the application for
adjustment is denied.” 65 Fed. Reg. at 15852. “The alien does
not need to file any request, motion, or other form beyond the
application for adjustment itself in order to benefit from this
automatic provision.” Id.
[10] In short, the Attorney General “shall not order any
alien to be removed” until he has decided the application. By
ordering Lezama removed under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I) — and given that his NACARA § 202
application is still pending — the IJ violated NACARA. The
IJ’s order of removal is therefore “manifestly contrary to” the
statute. Mead, 533 U.S. at 227 (citing Chevron, 467 U.S. at
842-45).
D. Even If Lezama Was an “Inadmissible” “Arriving
Alien,” He Was Nevertheless “Eligible to Seek
Adjustment of Status” under NACARA
The IJ determined that when Lezama left the United States
on March 25, 2004, he had executed his outstanding 1997
removal order — he “self deported” — and was therefore an
inadmissible “arriving alien” subject to removal when he
attempted to reenter the country. We now address what effect
our conclusion that Lezama has not abandoned his NACARA
§ 202 application has on that determination.
Lezama’s exact status presents a “chicken or egg” conun-
drum. Even if he did not abandon his NACARA application,
he did exit the country. That is, the question still remains
whether Lezama “self-deported.” Ultimately, however, we
need not resolve Lezama’s exact status (whether an “arriving
alien” or not) because even if he was an “arriving alien” and
20490 LEZAMA-GARCIA v. HOLDER
was “inadmissible,” he remains eligible to adjust his status
under NACARA.16
Admissibility is determined under 8 U.S.C. § 1182. Section
1182(a), defining “classes of aliens ineligible for visas or
admission,” states that “[e]xcept as otherwise provided in this
chapter, aliens who are inadmissible under the following para-
graphs are ineligible to receive visas and ineligible to be
admitted to the United States.” But § 1182(a) includes several
grounds of inadmissibility that NACARA § 202(a)(1)(B) spe-
cifically excuses — including aliens (1) who were “present
without admission or parole,” i.e., that had previously entered
without inspection, as set forth in § 1182(a)(6)(a), or (2) who
lacked valid travel documents when “applying for admission,”
as set forth in § 1182(a)(7)(A)(i).
The opening clause (“except as otherwise provided”) is a
“savings clause,” recognizing that Congress reserved the right
to specifically allow admission of otherwise inadmissible
aliens. NACARA is such legislation. See Renteria-Ledesma v.
Holder, 615 F.3d 903, 907-08 (8th Cir. 2010) (citing
NACARA as a specific example of where Congress has “oth-
erwise provided” to extend eligibility for adjustment of status
to inadmissible aliens, as recognized in In re Briones, 24 I. &
N. Dec. 355 (BIA 2007)); Padilla-Caldera v. Holder, 637
F.3d 1140, 1151 (10th Cir. 2011) (same); accord Garfias-
Rodriguez v. Holder, 649 F.3d 942, 949 (9th Cir. 2011) (fol-
16
An alien ordinarily affects his or her own removal by departing the
country while an order of deportation or removal is pending. See, e.g.,
Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir. 2006) (“It is well set-
tled that when an alien departs the United States while under a final order
of deportation, he or she executes that order pursuant to the law.”) (cita-
tions omitted). “Deportation orders are self-executing orders, not depen-
dent upon judicial enforcement.” Stone v. INS, 514 U.S. 386, 398 (1995).
Here, however, Lezama’s pending 1997 removal order had been stayed as
provided by NACARA. Given the stay, his 1997 order of removal was at
least in some sense not “pending.” We need not resolve, however, whether
departing under that status changes the ordinary result of “self-removal.”
LEZAMA-GARCIA v. HOLDER 20491
lowing Briones, and recognizing that Congress may extend
eligibility for adjustment of status to inadmissible aliens if
done so unambiguously).
[11] That is, even where an alien is deemed to be an “arriv-
ing alien” and “inadmissible,” the alien may still be eligible
to adjust status. See Bona v. Gonzales, 425 F.3d 663, 669 (9th
Cir. 2005) (invalidating a regulation that rendered an “arriv-
ing alien” placed in removal proceedings ineligible for adjust-
ment of status, where Congress had specifically allowed the
aliens to adjust status if they met other qualifications); Succar
v. Ashcroft, 394 F.3d 8, 26-29 (1st Cir. 2005) (same). That an
alien has departed is not necessarily fatal to the consideration
of a pending application to adjust status. See Marin-Rodriguez
v. Holder, 612 F.3d 591, 593-94 (7th Cir. 2010) (holding that
an alien’s departure, which constituted a “withdrawal” of a
motion, does not deprive the BIA of jurisdiction to reconsider
that decision — reconsideration “does not depend on an
alien’s presence in the country”); Coyt v. Holder, 593 F.3d
902, 906 (9th Cir. 2010) (holding the same, reasoning that “in
passing IIRIRA, Congress anticipated that petitioners would
be able to pursue relief after departing from the United
States.”). Indeed, the Supreme Court has stated that “[a]liens
who are removed may continue to pursue their petitions for
review, and those who prevail can be afforded effective relief
by facilitation of their return, along with restoration of the
immigration status they had upon removal.” Nken, 129 S. Ct.
at 1761.
[12] Accordingly, even assuming Lezama was an “arriving
alien” who was “inadmissible” under either 8 U.S.C.
§ 1182(a)(6)(A) or § 1182(a)(7)(A)(i), he remains eligible to
apply for adjustment of status under NACARA § 202.
IV. CONCLUSION
This case is a prime example that “[t]he maze of immigra-
tion statutes and amendments is notoriously complicated and
20492 LEZAMA-GARCIA v. HOLDER
has been described as ‘second only to the Internal Revenue
Code in complexity.’ ” Singh v. Gonzales, 499 F.3d 969, 980
(9th Cir. 2007) (citation omitted). “Nonetheless, we assume
that Congress is familiar with the intricacies of the overlap-
ping laws and that it meant what it said,” id., when it promul-
gated NACARA.
[13] Because Lezama’s departure was not “desired,” his
NACARA § 202 application was not abandoned under
§ 245.13(k)(1). His application remains pending. Under
NACARA § 202(c)(2), while his application remains pending,
he is not removable. And even if his departure rendered him
an “arriving alien,” he remains eligible for adjustment of sta-
tus. Accordingly, we grant the petition and remand to allow
the government to rule on the pending application to adjust
status under NACARA § 202.
Petition GRANTED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion for the fol-
lowing four reasons, which I discuss in greater detail below:
1. The majority opinion relies on an argument and
analysis that has never been advanced by the
Petitioner.
2. The majority opinion gives absolutely no defer-
ence to the agency’s interpretation of its regula-
tion.
3. The majority opinion relies on prefatory lan-
guage in the regulation and ignores the sub-
stance of the regulation.
LEZAMA-GARCIA v. HOLDER 20493
4. The majority opinion usurps the agency’s
authority by granting the petition without giving
the agency the opportunity to apply the majori-
ty’s novel interpretation of the regulation.
Our precedent has consistently reinforced the premise that
we do not address issues that are not raised in a petitioner’s
opening brief. See Fence Creek Cattle Co. v. USFS, 602 F.3d
1125, 1134 n.6 (9th Cir. 2010); see also ONDA v. Locke, 572
F.3d 610, 614 n.3 (9th Cir. 2009). In his brief to this court, the
petitioner argued in two and one-half pages that he “did not
leave the country intentionally or voluntarily.” Petitioner’s
Opening Brief, pp. 11-13. He essentially sought to equate the
circumstances of his departure to a forced departure. See id.
Never once did the petitioner cite to the prefatory language of
the regulation that has been seized upon by the majority to
make an argument that the petitioner never made. See id. The
majority’s stark departure from our precedent seriously calls
into question the legitimacy of the majority’s holding.
The majority’s departure from our precedent is com-
pounded by the fact that the opinion gives absolutely no def-
erence to the agency’s interpretation of its regulation. The
majority opinion dutifully acknowledges our obligation to
defer to the agency’s interpretation of its regulation, including
those interpretations articulated in litigation briefs. See Major-
ity Opinion, p. 20468. The majority opinion even concedes
that deference is required “unless an alternative reading is
compelled.” Id. at p. 20468 (citation omitted) (emphasis
added). Yet, the majority opinion says one thing and does
another.
As the majority opinion details, the Immigration Judge (IJ)
relied upon the language of 8 C.F.R. § 245.13(k)(1), which
provides in pertinent part that “[u]nless the applicant files an
advance parole request prior to departing from the United
States, and the Service approves such request, his or her appli-
cation for adjustment of status . . . is deemed to be abandoned
20494 LEZAMA-GARCIA v. HOLDER
as of the moment of his or her departure . . . .” The majority
opinion also recognizes that the Board of Immigration
Appeals adopted the IJ’s reliance on the regulation. See
Majority Opinion, p. 20479. This same analysis is reflected in
the brief filed on behalf of the agency. See Brief for Respon-
dent, pp. 24-30.
The IJ, BIA and Department of Justice all relied on the
seismic shift reflected in Congress’s enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA). Prior to the enactment of IIRIRA, continued eligi-
bility for adjustment of status often depended on whether the
alien intentionally departed the United States. See 8 U.S.C.
§ 1101(a)(13) (repealed 1996) (excluding from the definition
of “entry” a return to the United States if the prior departure
“was not intended” or “voluntary”). This statutory provision
spawned a litany of cases addressing whether a particular
departure was “intended” or “voluntary.” See, e.g., Rosenberg
v. Fleuti, 374 U.S. 449, 452-53 (1963) (describing the judicial
evolution of the definition of “entry”). However, following
the enactment of IIRIRA and the repeal of § 1101(a)(13),
intent of the departing alien became irrelevant. See, e.g.,
Camins v. Gonazles, 500 F.3d 872, 878-79 (9th Cir. 2007)
(recognizing that the changes in IIRIRA “were consistent with
a complete makeover of § [1101] (13) specifically intended to
supplant the subjective intent inquiry that was a feature of the
old law . . . .”) (quoting Tineo v. Ashcroft, 350 F.3d 382, 392-
93 (3d Cir. 2003).
In Camins, we also deferred to an en banc decision of the
BIA that specifically interpreted IIRIRA as abrogating the
intent inquiry that was central to the pre-IIRIRA determina-
tion of entry. See id. at 879-80 (deferring to the BIA’s inter-
pretation of IIRIRA as explicated in Matter of Collado-
Munoz, 21 I&N Dec. 1061, 1064-65 (BIA 1998) (en banc)).
The majority completely ignores the prior deference we
have given to the BIA’s holding that the intent of the depart-
LEZAMA-GARCIA v. HOLDER 20495
ing alien is not relevant post-IIRIRA. Instead, the majority
opinion seizes upon prefatory language in IIRIRA that has
never been interpreted by the BIA in conjunction with a peti-
tioner’s admissibility. See Majority Opinion, pp. 20480-81
(emphasizing the first sentence of § 245.13(k)(1) and focusing
on whether the petitioner “desired” to depart the United
States). The majority’s focus returns to the “intent” analysis
that was eliminated by IIRIRA, although purporting to base
its analysis on the “context” of the statutory scheme. See
Majority Opinion, p. 20480. However, the statutory context
points in the other direction. See Camins, 500 F.3d at 878-79
(explaining that the purpose of IIRIRA was to eliminate any
examination of the subjective intent of the departing alien).
The first sentence of § 245.13(k)(1) provides: “If an appli-
cant for benefits under section 202 of Pub. L. 105-100 desires
to travel outside, and return to, the United States while the
application for adjustment of status is pending, he or she must
file a request for advance parole authorization . . .” Grammati-
cally, it is apparent that the “desires to travel” clause is merely
an introduction to the substantive portion of the regulation—
the requirement of obtaining advance parole prior to departing
the country. Indeed, although the parole requirement is
explained in greater detail in the balance of the subsection, no
further mention is made of the “desires to travel” language,
reinforcing its introductory function. In addition, we have
cautioned against reliance on introductory language when
engaging in statutory interpretation. See United States v. Erts-
gaard, 222 F.3d 615, 617-18 (9th Cir. 2000). Our sister cir-
cuits agree. See United States v. Studfin, 240 F.3d 415, 421
n.5 (4th Cir. 2001); see also Davric Maine Corp. v. USPS,
238 F.3d 58, 62 (1st Cir. 2001) (eschewing reliance on intro-
ductory language when the balance of the provision “makes
clear that this reading is not tenable . . . .”). The majority
opinion’s inappropriate reliance on introductory language to
the exclusion of the substantive provisions, lack of deference
to agency interpretation and conflict with IIRIRA’s deliberate
removal of the intent requirements prevent my joinder.
20496 LEZAMA-GARCIA v. HOLDER
Finally, even if the majority opinion’s holding were correct,
it is nevertheless inappropriate to apply this novel interpreta-
tion of the regulation without first giving the BIA the opportu-
nity to consider this case in view of the new interpretation of
the regulation. See Pannu v. Holder, 639 F.3d 1225, 1228 (9th
Cir. 2011) (remanding for the BIA to apply intervening legal
interpretations).
Because the majority departs from our precedent, misinter-
prets the governing regulation, gives no deference to the
agency, and refuses to remand, I respectfully dissent.