Document Info

DocketNumber: 11-60258

Citation Numbers: 455 F. App'x 492

Judges: Benavides, Stewart, Clement

Filed Date: 12/27/2011

Status: Non-Precedential

Modified Date: 11/5/2024

  •      Case: 11-60258     Document: 00511707133         Page: 1     Date Filed: 12/27/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 27, 2011
    No. 11-60258
    Summary Calendar                        Lyle W. Cayce
    Clerk
    FRANCISCO JOSE ROSALES FIGUEROA,
    Petitioner
    v.
    ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A078 010 292
    Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Francisco Jose Rosales-Figueroa, a native and citizen of Guatemala,
    petitions this court to review the decision of the Board of Immigration Appeals
    (BIA) affirming the immigration judge’s (IJ) order of removal and determination
    that Rosales-Figueroa was ineligible for cancellation of removal under 8 U.S.C.
    § 1229b(a) because he failed to demonstrate that he resided in the United States
    continuously for seven years after admission under any status. We generally
    lack jurisdiction to review Rosales-Figueroa’s final order of removal. 8 U.S.C.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 11-60258   Document: 00511707133      Page: 2   Date Filed: 12/27/2011
    No. 11-60258
    § 1227(a)(2)(B)(I); see Balogun v. Ashcroft, 
    270 F.3d 274
    , 277-78 (5th Cir. 2001).
    However, because the determination whether Rosales-Figueroa is ineligible for
    cancellation of removal because he failed to satisfy the residency requirement is
    a question of law, we have jurisdiction to review his petition. See 8 U.S.C.
    § 1252(a)(2)(C). The BIA’s legal determinations are reviewed de novo, and its
    factual findings are reviewed for substantial evidence. See Girma v. INS, 
    283 F.3d 664
    , 666 (5th Cir. 2002).
    An alien who has been granted legal permanent residence may seek the
    relief of cancellation of removal if he has been a lawful permanent resident for
    at least five years, has resided in the United States continuously for seven years
    after having been admitted under any status, and has not been convicted of an
    aggravated felony. § 1229b(a). Here, the only issue is at what point Rosales-
    Figueroa resided in the United States for a continuous period of seven years
    after being admitted in any status. Rosales-Figueroa disputes that he was not
    admitted until his status was adjusted in 2003 to legal permanent resident, and
    asserts that he instead was conferred admission status in 2002, when he was
    granted employment authorization pending the approval of adjustment of status.
    He acknowledges that his conviction in 2009 for possession of methamphetamine
    ended his continuous residence.
    Although Rosales-Figueroa argues that he was admitted in any status
    when he was granted employment authorization, he has proffered no evidence
    showing that he received such authorization or indicating the date on which that
    authorization was granted. Nevertheless, even if Rosales-Figueroa received
    employment authorization in 2002, he has not shown that such authorization
    enables him to satisfy the residency requirement. He has provided no statutory,
    regulatory, or precedential support for his argument that a grant of employment
    authorization should be treated as an admission and has set forth no basis upon
    which we should conclude that “admission in any status” includes employment
    authorization.
    2
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    No. 11-60258
    To the contrary, our case law suggests that employment authorization
    likely does not confer admission status. We have narrowly construed “admitted
    in any status” and generally have not expanded the definition beyond events
    that directly confer or alter an alien’s immigration status. See, e.g., Deus v.
    Holder, 
    591 F.3d 807
    , 810-11 (5th Cir. 2009) (rejecting that, for purposes of the
    residency requirement, a parent’s years of lawful permanent residence may be
    imputed to a minor child). Moreover, we have held in analogous contexts that
    the receipt of employment authorization does not confer legal immigration
    status. See United States v. Lucio, 
    428 F.3d 519
    , 522-26 (5th Cir. 2005) (holding
    that alien who received employment authorization and was permitted to remain
    in the country during pendency of his application to adjust his immigration
    status could be charged with being in the country illegally and unlawfully for
    purposes of 18 U.S.C. § 922(g)(5)(A)); United States v. Flores, 
    404 F.3d 320
    , 326-
    27 (5th Cir. 2005) (concluding that alien who applied for Temporary Protective
    Status under 8 U.S.C. § 1254(a) could be deemed to be illegally or unlawfully in
    the United States even though he could not be deported and had received
    employment authorization); see also Bokhari v. Holder, 
    622 F.3d 357
    , 359-61 (5th
    Cir. 2010) (concluding that employment authorization provided pursuant to 8
    C.F.R. § 274a.12(b)(2) does not confer lawful immigration status).
    The applicable regulations further support that a grant of employment
    authorization does not confer admission status. Rosales-Figueroa appears to
    allege that he received employment authorization pending his application for
    adjustment of status application pursuant to 8 C.F.R. § 274a.12(c)(9). Section
    274(a).12 lists the classes of aliens who are authorized to accept employment; the
    principal classes of aliens are (1) aliens authorized employment incident to
    status; (2) aliens authorized for employment with a specific employer incident
    to status; and (3) aliens who must apply for authorization. Unlike the other
    categories of aliens, aliens who must apply for authorization are not granted
    authorization without restriction based upon their status, i.e., aliens, like
    3
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    No. 11-60258
    Rosales-Figueroa, who must apply for authorization are not admitted or granted
    any status, and their authorization is not incidental to that status.        See
    § 274a.12(a)(1)-(20), (c). Instead, the grant of employment authorization to
    aliens like Rosales-Figueroa is discretionary and may be terminated or revoked
    at any time under the criteria set forth in 8 C.F.R. § 274a.14. § 274a.14(a)-(b).
    Accordingly, the relevant regulations do not provide that aliens such as Rosales-
    Figueroa receive employment authorization because they have been admitted or
    granted status.
    We additionally note that the only circuit court to consider the instant
    issue concluded that the grant of employment authorization does not constitute
    “admission in any status.” See Guevara v. Holder, 
    649 F.3d 1086
    , 1090-95 (9th
    Cir. 2011). Although not precedential, Guevara represents persuasive authority.
    See United States v. Sauseda, 
    596 F.3d 279
    , 282 (5th Cir. 2010). Thus, Rosales-
    Figueroa has failed to establish that the BIA erred in determining that he was
    subject to removal and ineligible for cancellation of removal.
    Rosales-Figueroa further argues that he should have been granted relief
    because removal would cause his father, a legal permanent resident, to suffer an
    exceptional and extremely unusual hardship. He also asserts that he wrongly
    was not granted voluntary departure. Rosales-Figueroa failed to exhaust these
    issues before the BIA, and we therefore lack jurisdiction to review them. See
    Omari v. Holder, 
    562 F.3d 314
    , 318 (5th Cir. 2009).
    Rosales-Figueroa’s petition for review is DENIED.
    4