FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSA DELICIA GALINDO DE

RODRIGUEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 08-73477

Agency No.

A076-217-735

ROSA DELICIA GALINDO DE

RODRIGUEZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 09-71264

Agency No.

A076-217-735

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 5, 2013—Pasadena, California
2 GALINDO V. HOLDER

 The Honorable Sidney H. Stein, District Judge for the U.S. District *

Court for the Southern District of New York, sitting by designation.

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

Filed July 30, 2013

Before: Stephen S. Trott and William A. Fletcher,

Circuit Judges, and Sidney H. Stein, District Judge.*

Opinion by Judge Stein

SUMMARY

**

Immigration

The panel granted Rosa Galindo de Rodriguez’s petition

for review of the Board of Immigration Appeals’ decision

finding her ineligible for cancellation of removal, but denied

her petition from the denial of her motion to reopen. 

The panel held that the BIA erred in concluding that

Galindo’s residence “after having been admitted in any

status” was not continuous as required by 8 U.S.C.

§ 1229b(a)(2) because she took a thirteen-day trip to Mexico

pursuant to a grant of advance parole. The panel also held

that § 1229b(a)(2) only requires seven years of continuous

residence; it does not require continuous status of any

particular kind, and the lawfulness of her presence in the

United States is immaterial to the continuity of residence.

The panel held, however, that the BIA did not abuse
GALINDO V. HOLDER 3

discretion in denying Galindo’s motion to reopen seeking to

retract her admissions and concessions of removability.

COUNSEL

Philippe M. Dwelshauvers, Fresno, California, for Petitioner.

Jonathan Aaron Robbins (argued), Trial Attorney, Tony

West, Assistant Attorney General, William C. Peachey,

Assistant Director, and Rebecca Hoffberg Phillips, Trial

Attorney, United States Department of Justice, Civil Division,

Office of Immigration Litigation, Washington, D.C., for

Respondent.

OPINION

STEIN, District Judge:

Rosa Delicia Galindo de Rodriguez (“Galindo”) petitions

for review of two final orders of the Board of Immigration

Appeals (“BIA”), the first finding her ineligible for

cancellation of removal and the second denying her motion

to reopen. In her first petition, Galindo contends that the BIA

erred in finding that she had not “resided in the United States

continuously for 7 years after having been admitted in any

status”—a requirement for certain legal permanent residents

(“LPRs”) to be eligible for cancellation of removal. See

Immigration and Nationality Act (“INA”) § 240A(a)(2),

8 U.S.C. § 1229b(a)(2). The BIA found that her thirteen-day

trip to Mexico, pursuant to an authorization of advance

parole, severed the continuity of her United States residence.

That conclusion cannot be squared with the plain text of the
4 GALINDO V. HOLDER

statute, which defines a person’s residence as her “principal,

actual dwelling place.” See INA § 101(a)(33), 8 U.S.C.

§ 1101(a)(33).

Before this Court, the government also argues that she

was required to maintain a lawful admitted status throughout

her seven years of residence. But the provision at issue only

requires seven years of continuous residence; it does not

require continuous status of any particular kind. The

lawfulness of her presence in the United States “after having

been admitted in any status” is immaterial to the continuity of

her residence. See 8 U.S.C. § 1229b(a)(2).

In her second petition, Galindo contends that the BIA

should have reopened the case to allow her to retract her

concession of removability and argue based on intervening

case law that the Immigration Judge (“IJ”) should have

suppressed her initial confession to her alien-smuggling

crime. This petition is meritless. Galindo presents no

authority to support her argument that she may retract her

binding concessions of removability. Accordingly, the Court

grants her first petition, vacates the BIA’s dismissal of her

appeal, and remands to the BIA for further proceedings. We

deny Galindo’s second petition.

I. Background

A. Galindo’s 1990 Admission and Residence in the

United States

Galindo, a Mexican national, entered the United States on

May 12, 1990 by presenting herself for inspection using a

border crossing card. Although the border crossing card

limited her to a brief stay in the vicinity of the United States-
GALINDO V. HOLDER 5

Mexico border, she immediately moved north to the Fresno

area and married Adrian Rodriguez. In 1996, Adrian became

a naturalized United States citizen, the couple had their first

child together, and Galindo applied for an adjustment of

status based on Adrian’s citizenship. Galindo was granted

LPR status on May 24, 2000.

During the seven years after Galindo moved to the United

States in May 1990, she took only one trip outside the

country. The significance of that trip is the focus of this

appeal. Shortly after commencing her application for

adjustment of status in fall 1996, Galindo applied for and

received a grant of advance parole to visit her ailing mother

in Tijuana, Mexico. Advance parole was granted on

December 23, 1996, allowing her to travel to Mexico and

back. Galindo crossed into Mexico on December 24, 1996,

visited her mother, and returned thirteen days later, on

January 5, 1997. Upon her return, Galindo was paroled into

the country to continue her then-pending application for

adjustment of status.

B. Galindo’s Arrest and Removal Proceedings

Approximately nine years later, on November 16, 2005,

Galindo was detained at the San Ysidro border station when

she attempted to use her daughter’s United States birth

certificate to bring an undocumented minor child across the

border. Galindo had agreed to drive the girl from Tijuana to

a location in California in exchange for $500. Galindo and

another individual had picked the girl up in Tijuana and

proceeded to the border. During inspection, the border agent,

suspecting that the birth certificate did not belong to the girl,

took the occupants inside for a secondary inspection. When

questioned, each of the three occupants admitted that the girl
6 GALINDO V. HOLDER

was not Galindo’s daughter, and Galindo admitted that she

had agreed to transport her for pay. Galindo was served with

a notice to appear and detained pending a removal hearing.

After an initial hearing at which an IJ explained her rights

and continued the case to allow her to find an attorney,

Galindo appeared pro se and declined the offer of more time

to find counsel. The IJ then recited the allegations in her

notice to appear, and Galindo admitted that each factual

allegation was true and admitted the charge of removability.

Galindo explained that she wished to apply for cancellation

of removal, and the IJ continued the hearing. By the time the

hearing resumed, Galindo had found pro bono counsel who

obtained another continuance. At the next appearance,

counsel explained that Galindo understood the charges and

that she still admitted the factual allegations and conceded

removability, but was submitting an application for

cancellation of removal.

On March 7, 2007, the IJ held a merits hearing on

Galindo’s application for cancellation and focused on

whether Galindo could demonstrate the required seven years’

continuous residence in the United States after an admission

“in any status.” Specifically, the IJ accepted counsel’s proffer

that Galindo had been lawfully admitted in 1990, but found

that her December 1996 trip ended her continuous residence,

and that her parole into the country in January 1997 could not

qualify as an admission.

C. Galindo’s Appeal to the BIA and Motion to

Reopen

Galindo timely appealed to the BIA, contesting only the

denial of her cancellation application, not the finding of
GALINDO V. HOLDER 7

removability. She contended that she was admitted in 1990

and that, despite short trips to Mexico, she continuously

resided in the country until November 16, 2005, when service

of the notice to appear cut off the accrual of residence time

pursuant to INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).

Alternatively, she argued that her parole into the country on

January 5, 1997, was an “admission” and the start of her

period of continuous residence. The BIA dismissed her

appeal in an unpublished decision dated July 15, 2008,

concluding that she could not demonstrate the required seven

years of continuous residence after having been admitted. The

BIA found that her December 1996 departure broke the

continuity of her residence after her 1990 admission and that

her parole was not a qualifying admission.

Galindo then moved the BIA to reopen her removal

proceedings on the ground that intervening case law, de

Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir.

2008), required the IJ to exclude the record of her

interrogation and thus entitled her to withdraw her concession

of removability. The BIA denied the motion in an

unpublished decision, finding that Galindo had presented no

new evidence to suggest that the government had not

complied with the pertinent regulations regarding her

interrogation at the border, and that in any event, she had

presented no authority to exclude her subsequent factual

admissions and concessions of removability before the IJ.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to INA § 242(a)(1),

8 U.S.C. § 1252(a)(1). We review the BIA’s legal

conclusions de novo, “except to the extent that deference is

owed to its interpretation of the governing statutes and
8 GALINDO V. HOLDER

regulations.” Garcia-Quintero v. Gonzales, 455 F.3d 1006,

1011 (9th Cir. 2006). “The BIA’s decision reviewed here is

unpublished and issued by a single member of the BIA; it

does not carry the force of law, and it is accorded only

Skidmore deference proportional to its thoroughness,

reasoning, consistency, and ability to persuade.” MejiaHernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011). The

BIA’s denial of a motion to reopen is reviewed for abuse of

discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.

2002).

III. Discussion

A. Galindo “resided in the United States continuously

for 7 years after having been admitted in any

status” pursuant to § 1229b(a)(2).

There is no dispute that Galindo was “admitted” with

non-immigrant “status” within the meaning of the statute

when she entered the country in May 1990. See 8 U.S.C.

§ 1229b(a)(2). Instead, the government argues that she ran

afoul of the statute twice in the seven years that followed: (1)

when she violated the terms of her entry and thus ceased to be

lawfully admitted and (2) when she left the country on a

thirteen-day trip to Mexico to visit her mother. In essence, the

government reads the statute to require seven years of

continuous lawful presence—not seven years of residence

after a lawful entry. The statutory scheme simply does not

bear the government’s interpretation.
GALINDO V. HOLDER 9

1. Maintenance of lawful status after the

admission is not required.

An entry must be “lawful” to qualify as an admission.

8 U.S.C. § 1101(a)(13)(A). But, contrary to the government’s

contentions, the admission in any status is a single event,

after which residence must be continuous. As the BIA has

held and as this Court has agreed, an alien accrues continuous

residence time “after having been admitted in any status”

pursuant to 8 U.S.C. § 1229b(a)(2) despite violating the terms

of a border-crossing card. See Guevara v. Holder, 649 F.3d

1086, 1094–95 (9th Cir. 2011) (discussing In re BlancasLara, 23 I. & N. Dec. 458 (BIA 2002)). That an alien remains

in the country unlawfully is immaterial to this requirement

because “Congress in 8 U.S.C. § 1229b(a)(2) did not include

maintenance of status as a prerequisite for relief.” Guevara,

649 F.3d at 1095.

When Congress intends to require seven years of

continuous lawful residence, it does so explicitly. Cf. INA

§ 212(h), 8 U.S.C. § 1182(h) (“lawfully resided continuously

in the United States for a period of not less than 7 years”

(emphasis added)). That Congress required a period of lawful

resident status in the immediately preceding clause of the

very same sentence places the issue beyond dispute. See

8 U.S.C. § 1229b(a)(1) (“lawfully admitted for permanent

residence for not less than 5 years”). In sum, § 1229b(a)(2)

does not require continuity of any status, let alone lawful

status.
10 GALINDO V. HOLDER

2. Galindo’s brief trip to Mexico on advance

parole did not end her period of continuous

residence.

The government’s reliance on Galindo’s thirteen-day trip

to end her period of continuous residence in the United States

is inconsistent with the definition of “residence” in the

statute. “The term ‘residence’ means the place of general

abode; the place of general abode of a person means his

principal, actual dwelling place in fact, without regard to

intent.” 8 U.S.C. § 1101(a)(33). By that or any definition, a

brief visit to family does not change a person’s residence. The

statute does not treat every dwelling in which an alien stays

as a new residence; the text instructs courts to take a wider

view, deeming the “principal, actual dwelling place” and “the

place of general abode” to be the residence. Id. (emphasis

added). The objective circumstances—authorization of parole

already secured and her home in California awaiting her

return while she visited her ailing mother—do not suggest a

change in her residence.

Indeed, this Court applied the same definition of

“residence” in the context of an application for naturalization

and found that an alien with longer and regularized trips to

his former home in Mexico still resided in the United States.

Alcarez-Garcia v. Ashcroft, 293 F.3d 1155, 1157–58 (9th Cir.

2002); see id. at 1157 n.2 (observing that Congress codified

the definition applied in 8 U.S.C. § 1101(a)(33)). There, the

applicant had shown that his father’s residence was in Texas

even though the father was constantly moving around the

state for work and spent three months each year with his

family in Mexico. Id. at 1157–58.
GALINDO V. HOLDER 11

 For the first time at oral argument, the government advanced a new

1

theory: that Galindo’s trip actually ended years after she returned home to

California because, it contends, the legal fiction of her reentry pursuant to

parole was that she remained at the border until the resolution of her thenpending application for LPR status. The government’s proposed rule

would only favor aliens who avoid the consequences of the asserted legal

fiction by leaving and reentering the county surreptitiously instead of

securing advance parole and presenting themselves for inspection at the

The government’s proposed construction impermissibly

converts a requirement that an alien “reside” in the United

States for seven years into a requirement that she be

“physically present” in the country every day for seven years.

Cf. Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir. 1993)

(finding alien had continuously resided in United States

despite one “brief” and one “longer trip to Mexico” because

statute “requires continuous residence in the United States,

not continuous presence here” (emphasis in original)). Such

a rewriting is especially impermissible here because Congress

used the term “physically present” in the same statutory

section to impose more stringent eligibility requirements on

those without LPR status. See 8 U.S.C. § 1229b(b)(1)(A).

Moreover, the very same section goes on to define

“continuous physical presence” in a more flexible manner

than the government would have the Court define

“continuous residence.” “Physical presence” is, as a matter of

statute, continuous despite a trip out of the country lasting up

to ninety days. 8 U.S.C. § 1229b(d)(2). Placed in context, the

government would have the Court hold that, by visiting her

ailing mother briefly, Galindo as a matter of law changed her

residence to Mexico while remaining physically present in

California. That construction cannot be squared with the

definition of “residence” or the context in which that term is

used.1
12 GALINDO V. HOLDER

border. In any event, the government proffers no support for this reading

of the continuous residence requirement, and the Court finds none.

Accordingly, the BIA committed legal error by

concluding based on the undisputed facts that Galindo had

not resided in the United States continuously after her

admission in 1990. The Court grants the petition for review

of the BIA’s dismissal of her appeal, and remands for

consideration of the merits of Galindo’s application for

cancellation of removal.

B. The BIA properly denied Galindo’s motion to

reopen because she cannot retract her concessions

of removability.

Galindo’s motion to reopen—claiming that she can retract

her concessions of removability and her admissions of the

pertinent facts in order to attack the evidentiary bases for her

removal on remand—was meritless, and the BIA properly

denied that motion. Galindo does not contest that she

conceded removability herself and then again through

counsel. Nor does she now claim that she was not, in fact,

removable as charged. She contends only that the law

governing her interrogation might have changed, and that she

should thus be permitted to restart the removal proceedings

with a clean slate.

But Galindo’s concessions of removability before the IJ

are binding and render the asserted change in the law

immaterial; the BIA was thus well within its discretion to

deny her motion to reopen. Galindo contends that she may

withdraw her concessions pursuant to this Court’s decision in

Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003).

There, we concluded that the alien’s concession was not
GALINDO V. HOLDER 13

“dispositive” because the change in the law at issue

potentially changed the meaning of the alien’s concession. Id.

at 886. Here, by contrast, there is no possibility that Galindo

mistakenly conceded removability based on a nowquestionable rule of law. The law governing alien smuggling

has not changed, and she admitted all of the facts of that

crime. Accordingly, the Court denies the petition for review

of the BIA’s denial of her motion to reopen.

IV. Conclusion

The BIA improperly concluded that Galindo’s residence

“after having been admitted in any status” was not continuous

as required by 8 U.S.C. § 1229b(a)(2) because she took a

thirteen-day trip to Mexico pursuant to a grant of advance

parole. We therefore grant Galindo’s petition for review of

the BIA’s dismissal of her appeal and remand. However, the

BIA acted within its discretion in denying her motion to

reopen; the Court denies the petition for review of that order.

Petition for review No. 08-73477 is GRANTED. The

July 15, 2008 order of the BIA is therefore VACATED, and

the case is REMANDED. Petition for review No. 09-71264

is DENIED.