Delia MacIel v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 13 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DELIA MACIEL, AKA Delia Maciel No. 09-73376
Arciga,
Agency No. A073-920-940
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 5, 2013
Pasadena, California
Before: TROTT and W. FLETCHER, Circuit Judges, and STEIN, District Judge.**
Petitioner Delia Maciel seeks review of the BIA’s decision that she is
ineligible for cancellation of removal because she did not establish that she resided
in the country for seven years “after having been admitted in any status.” 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
§ 1229b(a)(2). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the
petition.
Maciel contends she began to accrue time toward the seven-year minimum
when she received advance parole under 8 U.S.C. § 1182(d)(5) on November 30,
1995. However, as the BIA correctly concluded, an “alien who is paroled under
section 1182(d)(5) . . . shall not be considered to have been admitted.” 8 U.S.C. §
1101(a)(13)(B); see also 8 U.S.C. § 1182(d)(5)(A) (parole “shall not be regarded as
an admission of the alien”). As a result, Maciel is not eligible for cancellation of
removal.
Maciel further contends that treating parolees differently than three
categories of aliens who are allowed to count the time they resided in the country
prior to gaining LPR status toward the seven-year requirement violates equal
protection. However, the “line-drawing decisions made by Congress or the
President in the context of immigration and naturalization must be upheld if they
are rationally related to a legitimate government purpose.” Masnauskas v.
Gonzales, 432 F.3d 1067, 1071 (9th Cir. 2005) (internal alteration and quotation
marks omitted). We have considered Maciel’s arguments and conclude that she is
distinct from the categories of aliens she identifies in ways that rationally justify
disparate treatment. Therefore, her equal protection challenge fails.
2
Accordingly, the petition for review is
DENIED.
3