Molina-Reyna v. Holder

FILED
NOT FOR PUBLICATION SEP 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR RICARDO MOLINA-REYNA, No. 06-75576
Petitioner, Agency No. A070-637-450
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2011
Submission vacated March 1, 2011
Re-submitted September 19, 2011**
Pasadena, California
Before: ALARCÓN, RYMER***, and BYBEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** Judge Rymer concurred in this Memorandum prior to her death.
Oscar Ricardo Molina-Reyna (Molina), a native and citizen of Guatemala,
petitions for review of the BIA’s denial of cancellation of removal. We have
jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition.
The BIA properly concluded that Molina did not qualify for cancellation of
removal under 8 U.S.C. § 1229b(a) because he had not “resided in the United
States for [seven] years after being admitted in any status.” There is no dispute
that Molina does not meet the statutory definition of “admitted,” because he
entered without inspection or authorization. See Guevara v. Holder, __ F.3d __,
2011 WL 2163964, at *3 (9th Cir. June 3, 2011). Molina’s filing of an application
for asylum did not render him “admitted in any status” under § 1229b(a). His
application merely established the future possibility of admission and status. See
Vasquez de Alcantar v. Holder,645 F.3d 1097, 1102 (9th Cir. 2011). That he was
able to reside here pending the adjudication of his application does not mean he
was admitted. Section 1229b(a) requires both residence and admission, and his
residence was merely “tolerated . . . [but] has not been legitimated by any
affirmative act.” See Sudomir v. McMahon, 767 F.2d 1456, 1462 (9th Cir. 1985).
Molina also is not in the same situation as a Family Unity Program (FUP)
participant. See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015 (9th Cir.
2006). Our decision in Garcia-Quintero “focused on the aliens’ acceptance into
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the FUP” because it indicated the participant had met stringent eligibility
requirements and was entitled to certain benefits. Guevara, 2011 WL 2163964, at
*6. Because Molina’s application was never adjudicated, there was never a
determination by the Attorney General that he met any eligibility requirement or
should receive any benefit. The mere grant of employment authorization is
insufficient. See id. This is especially true here, because his authorization was not
“incident to status,” as is the case for FUP participants. See id.; see also 8 U.S.C. §
1158(d)(2); 8 C.F.R. § 274a.12(c)(8).
Lastly, a FUP participant who reenters is “admitted in the same immigration
status” he had prior to departure, see Garcia-Quintero, 455 F.3d at 1018 (emphasis
omitted), which suggests he had some status before reentry. An asylum applicant
reenters under the advanced parole scheme. See 8 C.F.R. §§ 208.8, 212.5. The
granting of advanced parole “shall not be regarded as an admission of the alien.” 8
U.S.C. § 1182(d)(5)(A).
Because Molina could not show residence for seven years after being
admitted in any status, the BIA properly denied cancellation of removal.
DENIED.
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