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Jose Juan MEDINA-NUNEZ, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent

United States Court of Appeals for the Ninth Circuit2015-06-08No. No. 14-70657
788 F.3d 1103

Summary

Holding. The court denied the petition and upheld the Board of Immigration Appeals' denial of cancellation of removal, holding that acceptance into the Family Unity Program does not constitute an admission under 8 U.S.C. § 1229b(a)(2) and therefore Medina-Nunez did not satisfy the seven-year residency requirement.

Jose Juan Medina-Nunez, a Mexican national who entered the United States without inspection in 1985, was accepted into the Family Unity Program in 1996 and became a lawful permanent resident in 2007. He sought cancellation of removal under federal immigration law, which requires seven years of residence following admission to the country. Medina-Nunez argued that his acceptance into the Family Unity Program constituted an "admission" for purposes of meeting this requirement, but the Board of Immigration Appeals rejected this claim based on its published decision in In re Reza-Murillo.

The court faced a conflict between its own prior ruling in Garcia-Quintero v. Gonzales, which held that Family Unity Program acceptance does constitute an admission, and the later BIA decision reaching the opposite conclusion. Applying Supreme Court precedent from Brand X, the court determined that because its earlier Garcia-Quintero decision did not rest on an unambiguous statutory interpretation leaving no room for agency discretion, it must defer to the BIA's subsequent published decision. The BIA reasonably interpreted "admitted" according to the statute's definition, which requires lawful entry after inspection and authorization—elements not present in Family Unity Program acceptance alone.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether Family Unity Program acceptance constitutes 'admission' under cancellation of removal statute
  • Application of Chevron deference to agency interpretation conflicting with prior circuit precedent
  • Interpretation of 'admitted' under Immigration and Nationality Act

Procedural posture

The petitioner sought review of the Board of Immigration Appeals' decision denying his application for cancellation of removal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

OPINION

PER CURIAM:

Petitioner Jose Juan Medina-Nunez petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for cancellation of removal under 8 U.S.C. § 1229b(a). The BIA held that Petitioner did not meet the statutory seven-year residency requirement because, under In re Reza-Murillo, 25 I. & N. Dec. 296 (B.I.A.2010), his acceptance into the Family Unity Program (“FUP”) did not constitute an admission into the United States for purposes of § 1229b(a)(2). That BIA decision conflicts directly with our decision in Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir.2006). But, applying the rule announced in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), we defer to the BIA’s later published decision in In re Reza-Murillo. We therefore deny the petition.

Petitioner is a native and citizen of Mexico. In 1985, he entered the United States without inspection. In 1996, Petitioner was accepted into the FUP. Persons accepted into the FUP receive significant benefits, including protection from removal, authorization to work in the United States, authorization to travel outside the country, and the option of voluntary departure. See Garcia-Quintero, 455 F.3d at 1009-10 (describing the program in detail). In 2007, Petitioner became a legal permanent resident. He was convicted of various crimes in August 1995, August 2000, March 2004, June 2004, and December 2011. In 2012, the government issued him a notice to appear.

Petitioner then sought cancellation of removal under 8 U.S.C. § 1229b(a) which, among other things, requires the applicant to have resided in the country for “7 years after having been admitted in any status,” id. § 1229b(a)(2) (emphasis. added). Petitioner argued thathe had been “admitted” in 1996, when he was accepted into the FUP. Citing its published decision directly on point, In re Reza-Murillo, the BIA held that Petitioner’s acceptance into the FUP was not an admission for purposes of § 1229b(a)(2). Accordingly, the BIA denied Petitioner’s application for cancellation of removal. Petitioner timely seeks review.

In 2005, we confronted the question whether acceptance into the FUP constitutes an admission for-purposes of cancellation of removal. Garcia-Quintero, 455 F.3d at 1009. We noted that this was “an issue of first impression” because neither we nor the BIA had addressed the issue in a published decision. Id. We held that, because the BIA’s decision in Garcia-Quintero was unpublished, it was not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Garcia-Quintero, 455 F.3d at 1014. Moreover, because the BIA’s reasons were unpersuasive, we “con-duet[ed] a de novo review of the question.” Id. at 1015. Over a dissent, we held that acceptance into the FUP constituted an admission for purposes of § 1229b(a)(2). Id. at 1018-19. In reaching that conclusion, we consulted the text of the statute, the legislative purpose, the legislative history, decisions by the BIA, and a decision by this court, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005). Garcia-Quintero, 455 F.3d at 1015-19.

Five years later, the BIA addressed the same issue again, but this time in a published decision. The BIA held that acceptance into the FUP did not constitute an admission for purposes of § 1229b(a)(2). In re Reza-Murillo, 25 I. & N. Dec. at 297-300. The Immigration and Nationality Act “defines the term ‘admitted’ as ‘the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.’ ” Id. at 297 (quoting 8 U.S.C. § 1101(a)(13)(A)). Acceptance into the FUP does not require entry, inspection, or authorization. Id. “Therefore, the respondent’s grant of FUP benefits did not itself involve his ‘entry ... into the United States after inspection and authorization by an immigration officer’ under section 101(a)(13)(A) of the Act.” Id. (alteration in original) (quoting 8 U.S.C. § 1101(a)(13)(A)). Accordingly, acceptance into the FUP did not mean that the alien had been “admitted” for purposes of § 1229b(a)(2). Id. Looking to its own decisions and to decisions by this court, the BIA explained at length why our decision in Garcia-Quintero was “not persuasive.” Id. at 298-300.

In sum, we confront a conflict between our own precedent and the BIA’s later published precedent to the contrary. The Supreme Court has instructed us on the proper outcome in precisely this situation: “A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982, 125 S.Ct. 2688.

Our prior decision did not “follow[ ] from the unambiguous terms of the statute and thus leave[] no room for agency discretion.” Id. Indeed, as noted above, in addition to interpreting the statutory text, we consulted legislative history, legislative purpose, decisions by the BIA, and our own decision in Cuevas-Gaspar (which since has been overruled by Holder v. Martinez Gutierrez, — U.S. -, 132 S.Ct. 2011, 182 L.Ed.2d 922 (2012)). Garcia-Quintero, 455 F.3d at 1015-19.

We also have no trouble concluding that the BIA’s decision in In re Reza-Murillo is “otherwise entitled to Chevron deference.” Brand X, 545 U.S. at 982, 125 S.Ct. 2688. It is 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.

Pursuant to Brand X we must afford Chevron deference to the BIA’s decision in In re Reza-Murillo holding that acceptance into the Family Unity Program does not constitute an admission for purposes of § 1229b(a)(2). The BIA therefore correctly denied Petitioner’s application for cancellation of removal.

Petition DENIED.

. Petitioner also seeks review of the BIAs determination that he is removable. In an unpublished disposition filed concurrently with this opinion, we conclude that the BIA correctly held that Petitioner is removable.