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Matter of Mario A. FAJARDO ESPINOZA, Respondent

Decided June 8, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A grant of Family Unity Program benefits does not constitute an “admission” to the 

United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 

8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued 

the requisite 7 years of continuous residence after having been “admitted in any status” to 

be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. 

§ 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed. 

Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed.

FOR RESPONDENT: Martin Zaehringer, Esquire, Ventura, California

BEFORE: Board Panel: PAULEY and GREER, Board Members; O’HERRON, 

Temporary Board Member.

PAULEY, Board Member:

In a decision dated May 7, 2013, an Immigration Judge found the 

respondent removable under section 237(a)(2)(B)(i) of the Immigration and 

Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), as an alien convicted 

of a controlled substance violation, denied his applications for cancellation 

of removal and voluntary departure, and ordered him removed from the 

United States. The respondent has appealed from that decision. The appeal 

will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who entered the 

United States without inspection in 1996. On November 13, 2002, while he 

was in the United States, the respondent was granted Family Unity Program 

(“FUP”) benefits. His status was later adjusted to that of a lawful 

permanent resident on April 25, 2005. 

On September 4, 2012, the respondent was convicted of possession of a 

controlled substance in violation section 11377(a) of the California Health 

and Safety Code, based on a guilty plea to the charge that he committed the 

offense on June 14, 2011. As a result, the Department of Homeland 

Security (“DHS”) issued a notice to appear on March 11, 2013, charging
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the respondent with removability as an alien convicted of a violation of a 

State law relating to a controlled substance. 

The Immigration Judge determined that the respondent was removable 

based on the conviction documents included in the record. He also 

concluded that the respondent was ineligible for cancellation of removal 

because, at the time he committed the removable offense, he had not 

accrued 7 years of continuous residence in the United States “after having 

been admitted in any status,” as required by section 240A(a)(2) of the 

Act, 8 U.S.C. § 1229b(a)(2) (2012). The Immigration Judge denied the 

respondent’s request for voluntary departure as a matter of discretion.

The respondent contends that he is not removable as charged because

the conviction documents do not establish that he was convicted of a 

controlled substance violation. He also argues that his grant of FUP 

benefits in 2002 should constitute an “admission” and that he therefore 

accrued the requisite continuous residence to establish eligibility for

cancellation of removal under section 240A(a)(2) of the Act. Finally, the 

respondent challenges the Immigration Judge’s denial of his request for 

voluntary departure.

II. ANALYSIS

A. Removability

The respondent’s conviction record includes a minute order and 

felony complaint, which establish that he pled guilty to possession of 

methamphetamine, a federally controlled substance, in violation of section 

11377(a) of the California Health and Safety Code. The Immigration Judge 

concluded that this record supported a finding that the respondent is 

removable under section 237(a)(2)(B)(i) of the Act as an alien convicted of 

a controlled substance violation. We agree. See Coronado v. Holder, 759 

F.3d 977, 984–86 (9th Cir. 2014) (holding that section 11377(a) is divisible 

and that “[w]here the minute order or other equally reliable document 

specifies that a defendant pleaded guilty to a particular count of a criminal 

complaint, the court may consider the facts alleged in the complaint”). 

B. Cancellation of Removal 

To be eligible for cancellation of removal, the respondent must 

establish, inter alia, that he “resided in the United States continuously for 

7 years after having been admitted in any status.” Section 240A(a)(2) 

of the Act. According to section 240A(d)(1) of the Act, continuous 

residence is deemed to end when an alien has committed a certain type of
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offense that renders him removable. In 2011, the respondent committed a

removable offense under section 237(a)(2)(B)(i), which stopped the accrual 

of his continuous residence. The question before us is whether his period 

of residence began in 2005, when he adjusted his status, or in 2002, when 

he was granted FUP benefits.

Although the respondent was present in the United States in 2002, the 

Immigration Judge determined that his continuous residence did not 

commence at that time because the grant of FUP benefits does not 

constitute an “admission” as defined in section 101(a)(13)(A) of the Act, 

8 U.S.C. § 1101(a)(13)(A) (2012).

1

 In reaching this conclusion, the 

Immigration Judge applied our holding in Matter of Reza, 25 I&N Dec. 296

(BIA 2010). The respondent contends that Matter of Reza was wrongly 

decided and that we should instead follow Garcia-Quintero v. Gonzales, 

455 F.3d 1006 (9th Cir. 2006), a decision of the United States Court of 

Appeals for the Ninth Circuit, in whose jurisdiction this case arises. We 

conclude that our more recent precedent should control in this case.

Prior to Matter of Reza, the Ninth Circuit held that a grant of 

FUP benefits constitutes being “admitted in any status” for purposes of 

establishing eligibility for cancellation of removal. Garcia-Quintero 

v. Gonzales, 455 F.3d at 1018−20. The focus of the court’s decision, which 

was rendered without the benefit of our reasoning in Reza, was more on the 

question whether a grant of FUP benefits conferred a “status” than on 

whether it constitutes an “admission.” We do not dispute that an alien who 

was granted FUP benefits has a “status” for immigration purposes. See 

Matter of Blancas, 23 I&N Dec. 458, 460 (BIA 2002) (describing the broad 

definition of the phrase “in any status,” as used in section 240A(a)(2) of the 

Act). However, we also do not consider the court’s finding regarding the 

term “admission” to have been dictated by the plain or unambiguous 

language of the statute. See Garcia-Quintero v. Gonzales, 455 F.3d at 

1018−19.

We respectfully believe that our subsequent precedent decision in Reza

is reasonable and therefore entitled to deference under Chevron, U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 

967, 982–83 (2005) (“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.”).

 

1 According to section 101(a)(13)(A) of the Act, “The terms ‘admission’ and ‘admitted’ 

mean, with respect to an alien, the lawful entry of the alien into the United States after 

inspection and authorization by an immigration officer.”
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The Supreme Court’s analysis in Chevron consists of two steps that 

courts routinely apply when reviewing an agency’s interpretation of a 

statute. First, the court analyzes the statutory language to determine 

whether it is ambiguous. If the statute allows for more than one reasonable

interpretation, the agency’s interpretation controls unless it is unreasonable. 

The Ninth Circuit accords Chevron deference to our reasonable legal 

interpretation of an ambiguous statute only if we publish our decision or 

rely on a directly controlling published decision. Uppal v. Holder, 605 

F.3d 712, 714 (9th Cir. 2010). When a conflict in statutory interpretation

exists between Board precedent and case law of the circuit in which the 

case arises, we, like the courts, must apply the first step of Chevron to 

determine whether to apply the law of the circuit or our own precedent. 

See, e.g., Matter of Douglas, 26 I&N Dec. 197, 199–200 (BIA 2013).

In certain circumstances, we have determined that the statutory scheme 

as a whole requires that the otherwise clear and unambiguous definition of

the terms “admitted” and “admission” in section 101(a)(13)(A) of the Act 

must yield, specifically where absurd or bizarre results would otherwise 

ensue. See Matter of Chavez-Alvarez, 26 I&N Dec. 274, 276−77

(BIA 2014), rev’d on other grounds, Chavez-Alvarez v. Att’y Gen. of U.S., 

783 F.3d 478 (3d Cir. 2015). The Ninth Circuit has taken a similar 

approach. See, e.g., United States v. Hernandez-Arias, 757 F.3d 874, 880 

(9th Cir. 2014); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1100−01

(9th Cir. 2014) (stating that the definition of the term “admitted” is “clear 

and unambiguous,” but examining “alternative methods” for interpreting 

the phrase “admitted in any status”). We must decide whether, in order to 

avoid absurd results, an alien granted FUP benefits should be deemed to 

have been “admitted in any status,” notwithstanding the otherwise clear 

statutory definition of the term “admitted.”

In Garcia-Quintero, the Ninth Circuit concluded that being granted 

FUP benefits constitutes being “admitted in any status.”2 Garcia-Quintero 

v. Gonzales, 455 F.3d at 1020. Although the court expressly considered the 

“plain meaning” of the phrase “admitted in any status,” it did so in 

conjunction with other factors, including the legislative history of the 

statute and both our precedent decisions and its own case law, rather than 

concluding that the plain meaning alone was unambiguous. Id. at 1018–19.

Subsequently, in Garcia v. Holder, 659 F.3d 1261, 1270 (9th Cir. 2011), 

a case involving a Special Immigrant Juvenile parolee, the court

summarized the factors it considered in Garcia-Quintero when determining

that an alien’s grant of FUP benefits constitutes being “admitted in any 

status.” These factors included that (1) FUP participants are accorded 

 

2 The Ninth Circuit expressly accorded a low level of deference under Skidmore v. Swift 

& Co., 323 U.S. 134 (1944), to our prior unpublished decision in that case.
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congressionally mandated benefits; (2) the FUP applies to a narrow class 

of aliens subject to heightened eligibility requirements; (3) the FUP 

regulations gave participants an immigration status; and (4) Congress 

later clarified and reauthorized the FUP. Applying those factors, the 

Ninth Circuit concluded that being granted parole as a Special Immigrant 

Juvenile also constituted being “admitted in any status.” Id. at 1272.

Significantly, the Ninth Circuit explained in Garcia that a Special 

Immigrant Juvenile parolee, like an alien granted FUP benefits, was not 

“admitted” under the clear and unambiguous definition of that term in 

section 101(a)(13)(A) of the Act. Id. at 1267. However, the court applied 

its own jurisprudence interpreting the phrase “admitted in any status” in 

section 240A(a)(2) of the Act, taking into consideration the court’s view of 

congressional intent within the broader statutory scheme of the Act. Id. at 

1269−72. 

We agree with the Ninth Circuit that the “clear and unambiguous” 

definition of the terms “admitted” and “admission” in the Act must yield in 

certain circumstances. However, we have only so construed these terms in 

the context of adjustment of status and then only to avoid absurd or bizarre 

results. Matter of Reza, 25 I&N Dec. at 299–300; see also, e.g., Matter of 

Chavez-Alvarez, 26 I&N Dec. at 276–77 (holding that an alien’s adjustment 

of status constitutes an “admission” for purposes of removability for having 

been convicted of an aggravated felony after admission). For example, 

consistent with this narrow tailoring, we have found that a grant of asylum 

status does not constitute an admission. Matter of V-X-, 26 I&N Dec. 147, 

150–52 (BIA 2013).

For all of these reasons, we respectfully disagree with the Ninth 

Circuit’s conclusion that the phrase “admitted in any status” includes a

grant of FUP benefits. Therefore, in the interest of uniformity, we will 

apply our holding in Matter of Reza nationwide.

Likewise, for the reasons stated in Matter of Reza and Matter of V-X-, 

we also disagree with the respondent’s alternative contentions that,

notwithstanding the statutory requirements of section 101(a)(13)(A) of the 

Act, other applications or procedures should qualify as admissions, 

including the filing of a visa petition or the submission of a biometric 

information form in conjunction with an application for FUP benefits. 

See also Guevara v. Holder, 649 F.3d 1086, 1091 (9th Cir. 2011) (holding 

that a grant of employment authorization pending adjustment of status does 

not constitute “admission in any status”); Vasquez de Alcantar v. Holder, 

645 F.3d at 1102 (holding that approval of a visa petition does not 

constitute “admission in any status”). As our published decisions 

demonstrate, adjustment of status may qualify as an “admission” without 

satisfying the definition in section 101(a)(13)(A) because of the bizarre and 
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absurd consequences that would otherwise result. See Matter of 

Chavez-Alvarez, 26 I&N Dec. at 276−77; Matter of V-X-, 26 I&N Dec. at 

150–51; Matter of Alyazji, 25 I&N Dec. 397, 399 (BIA 2011); Matter of 

Reza, 25 I&N Dec. at 298; Matter of Rodarte, 23 I&N Dec. 905, 908 

(BIA 2006); see also Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014). That 

is not the case here.

C. Voluntary Departure

The Immigration Judge denied the respondent’s request for voluntary 

departure as a matter of discretion. Therefore the respondent’s argument 

regarding his statutory eligibility for voluntary departure does not 

meaningfully challenge the Immigration Judge’s decision. In any case, the 

respondent’s 2012 controlled substance conviction renders him ineligible 

for voluntary departure under section 240B(b)(1)(B) of the Act, 8 U.S.C. 

§ 1229c(b)(1)(B) (2012), because it precludes him from demonstrating that 

he has been a person of good moral character for the last 5 years.3 

See section 101(f)(3) of the Act.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

 

3

Proceedings before the Immigration Judge started and ended within 1 year of the 

respondent’s 2012 conviction. Therefore, even if the Ninth Circuit were to consider the 

relevant period of good moral character to be 5 years prior to the respondent’s initial 

voluntary departure request, rather than treating the application as a continuing one, the 

bar would apply. Cf. Aragon-Salazar v. Holder, 769 F.3d 699 (9th Cir. 2014) (requiring 

an alien to demonstrate good moral character only during the 7-year period before filing 

an application for special rule cancellation of removal).