C ite as 26 I&N Dec. 603 (BIA 2015 ) Interim Decision #3840

603 

### Matter of Mario A. FAJARDO ESPINOZA, Respondent

Decided June 8, 20 1 5

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 year s of continuous residence after having been “admitted in any sta tus” 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 ’HERR ON

, Temporary Board Member.

PAULEY , Board Member:

In a decision dated May 7, 2013, an Immigration Judge found t he respondent removable under s ection 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

, deni ed his application s for cancellation of removal and voluntary departure , and ordered him removed from the
United States

. The respondent has appealed from th at 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. O n November 13, 2002, while he
was in the United States

, the respondent was granted Family Unity Program (“FUP”) benefits

. H is status was later adjusted to that of a lawful permanent resident o n April 25, 2005

. O n September 4, 2012 , t he respondent w as 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 , t he Department of Homeland Security (“DHS”) issued a notice to appear on March 11, 2013, charg ingC ite as 26 I&N Dec. 603 (BIA 2015 ) Interim Decision #3840

604 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 wa s ineligible for cancellation of removal
because

, at the time he committed the removable offense

, he had not accrued 7 years of continuous reside nce 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)

. T he Immigration Judge deni ed the respondent’s request for voluntar y 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 reside nce to establish eligib i l ity 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

T he respondent’s conviction record includ es a minute order and felony complaint , which establish that he pled guilty to possession of methamphetamine, a federally controlled substance, in violati o n 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 con victed 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 defenda nt pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint”).

B. C ancellation 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

. ” S ection 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 ofC ite as 26 I&N Dec. 603 (BIA 2015 ) Interim Decision #3840

605 offense that renders him removable. In 2011, t he 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 beg an in 2005

, when he adjusted his status

, or in 2002

, when he was granted FUP benefits

. A lthough 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 jur isdiction this case arises. We
conclude that our more recent precedent s hould control in this case.
Prior to Matter of Reza , the Ninth Circuit held that a grant of

FUP benefits constitute s being “admitted in any status” for purposes of establishing eligi bility for cancellation of removal

. Garcia

- Quintero

v. Gonzales , 455 F.3d at 10 18− 2 0. 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 20 02) (describing the broad
definition of the phrase “in any status,” as used in section 240A(a)(2) of the Act). H owever, 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

. W e 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 ot herwise 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.”C ite as 26 I&N Dec. 603 (BIA 2015 ) Interim Decision #3840

606 The Supreme Court’s analysis in Chevron consists of two steps that courts routinely apply when reviewing an agenc y ’ 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 w e publish our decision or
rel y on a directly controlling p ublished decision. Uppal v. Holder , 605 F.3d 712, 714 (9th Cir. 2010). W hen a conflict in statutory interpretation
exists between Board precedent and case law of the circuit in which the case arises, we

, l ike the courts, must apply the first step of Che vron 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).

I n 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 ot herwise

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)

. T he 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, 110 0−01 (9th Cir. 2014) (stating that the definition of the term “admitted” is “clear and unambiguous

, ” but examining “alternative methods” for interpreting

t he phrase “admitted in any status”)

. W e must decide whether

, in order to avoid absurd results, an alien grant ed FUP benefits should be deemed to have be en “ admi tted 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 1 0 2 0

. 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 th at 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

. ” The se factors includ e d 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 th at case

.C ite as 26 I&N Dec. 603 (BIA 2015 ) Interim Decision #3840

607 c ongressionally 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 parole e
, like a n alien grant ed FUP benefits

, was not “admitted” under the clear and unambiguous definition of th at 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 126 9− 7 2

. 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 ; s ee also

, e.g. , Matter of Chavez

- Alvarez

, 26 I&N Dec. at 276

– 7 7 (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,

c onsistent with this narrow tailor ing, 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 an y status” include s a grant of FUP benefits. T herefore , in the interest of uniformit y , we will apply our holding in Matter of Reza nationwide

. Likewise, for the reasons s tat e d 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
informatio n 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 con stitute “ 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 qualif y as an “admission” without satisfying th e def

inition in section 101(a)(13)(A) because of the bizarre andC ite as 26 I&N Dec. 603 (BIA 2015 ) Interim Decision #3840

608 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. V oluntary D eparture

T he Immigration Judge deni ed the respondent’s request for voluntary departure as a matter of discretion. T herefore t he respondent’s argument regarding his statutory eligibility for voluntary departure does not meaningfully challenge the Immigration Judge’s decision. In any ca se , 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 dismiss ed. 

### 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).