FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELCHOR GUEVARA, 

Petitioner, No. 08-72252

v. Agency No.  A075-498-425 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 2, 2010—Pasadena, California

Filed June 3, 2011

Before: Mary M. Schroeder, Raymond C. Fisher, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith;

Dissent by Judge Fisher

7383
COUNSEL

Gary Finn, Indio, California, for petitioner Melchor Guevara.

Nairi M. Simonian, Office of Immigration Litigation, Civil

Division, U.S. Department of Justice, Washington, D.C., for

respondent Attorney General Holder. 

OPINION

N.R. SMITH, Circuit Judge:

The grant of employment authorization, pending the

approval of adjustment of status to that of a Legal Permanent

Resident (LPR) under 8 U.S.C. § 1255, does not confer

admission status on an undocumented alien (one who entered

without inspection or authorization and has not otherwise

been admitted) for purposes of calculating seven years of continuous residence under 8 U.S.C. § 1229b(a)(2). Employment

authorization, under 8 C.F.R. § 274a.12(c), merely allows

such alien the right to work while his or her application for

adjustment of status is being adjudicated.

I. Factual Background

Melchor Guevara entered the United States without inspection in 1987. After entering the United States, Guevara began

7386 GUEVARA v. HOLDER
living and continues to live with his LPR daughter and his

two United States citizen grandchildren. 

In October 1997, Guevara filed an application to adjust his

status from that of an undocumented alien to an LPR under

8 U.S.C. § 1255(i) (after receiving an approved I-130). After

filing his application, Guevara applied for and received his

employment authorization in January 8, 1998. While his

application for adjustment of status was pending, Guevara

requested permission to temporarily leave the United States

(i.e., advanced parole, 8 U.S.C. § 1182(d)(5)(A)); the request

was denied on September 29, 1999. Thus, Guevara was

required to stay in the United States pending the approval of

his application for adjustment of status or risk forfeiting his

application. On October 17, 2000, he was allowed to adjust

his status to an LPR.

On September 17, 2006, Guevara attempted to assist

another alien daughter and her child to enter the United States

unlawfully. Because of that conduct, Guevara was served (on

the same day) with a Notice to Appear in removal proceedings. The government charged him with knowingly assisting

undocumented persons to enter the United States in violation

of Immigration and Nationality Act (INA) § 212(a)(6)(E)(i),

8 U.S.C. § 1182(a)(6)(E)(i). 

During Guevara’s removal proceedings, he admitted to

assisting his daughter and grandchild to illegally enter the

United States. However, he also applied for cancellation of

removal. The immigration judge (IJ) found that Guevara was

eligible for cancellation of removal under INA § 240A (8

U.S.C. § 1229b). Specifically, the IJ found that Guevara met

the seven-year requirement for cancellation of removal,

because Guevara was granted the employment authorization

on January 8, 1998 and lived in the United States continuously until the initiation of removal proceedings on September 17, 2006. The IJ held that, when the government granted

Guevara the opportunity to work in the United States, he was

GUEVARA v. HOLDER 7387
“admitted in any status.” In making this decision, the IJ found

Guevara’s circumstances similar to those of participants in the

Family Unity Program (FUP) and therefore applied the reasoning of Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th

Cir. 2006), to Guevara. The IJ also noted that Guevara was

denied advanced parole and thus required to remain in the

United States. 

The government appealed the IJ’s ruling to the Board of

Immigration Appeals (BIA). The BIA, in an unpublished

decision, reversed the IJ’s decision. The BIA rejected the IJ’s

conclusion that receiving an employment authorization document was comparable to being a participant in the FUP. The

BIA found that “the holding in Garcia-Quintero, supra,

involving an alien who was accepted into the FUP, does not

extend to an alien who was simply granted an [employment

authorization document].” The BIA further noted “we find the

respondent’s circumstances are distinct from a FUP beneficiary who is eligible to depart the United States and return

pursuant to the FUP concept of ‘voluntary departure.’ ”

Instead, the BIA found Guevara ineligible for cancellation of

removal, because he had not met his seven years of continuous residence, which it determined began on October 18, 2000,1

the date Guevara’s application for adjustment of status was

approved.

II. Standard of Review

We review de novo “the BIA’s determination of purely

legal questions, including the BIA’s interpretation of the

Immigration and Nationality Act.” Lopez v. INS, 184 F.3d

1097, 1099 (9th Cir. 1999). We apply Chevron deference to

the Board’s interpretations of ambiguous immigration statutes, if the Board’s decision is a published decision. See

Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.

1There is an inconsistency in the record of whether Guevara’s application for adjustment of status was granted on the 17th or 18th of October.

7388 GUEVARA v. HOLDER
2009). However, we need not defer to the BIA if the statute

is unambiguous. See id. at 908; see also INS v. AguirreAguirre, 526 U.S. 415, 424 (1999). We follow “the Skidmore

framework if the decision is unpublished (and not directly

controlled by any published decision interpreting the same

statute).” Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010)

(citing Marmolejo-Campos, 558 F.3d at 909-11).

III. Discussion

[1] In order for Guevara, a legal permanent resident alien

(who is inadmissible or deportable), to be eligible for cancellation of removal, he must meet the requirements set forth in

8 U.S.C. § 1229b(a):

The Attorney General may cancel removal in the

case of an alien who is inadmissible or deportable

from the United States if the alien—

(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, 

(2) has resided in the United States continuously for

7 years after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.

The parties do not dispute that Guevara satisfied the first and

third requirements. We are required here only to decide at

what point Guevara has resided in the United States for a continuous period of seven years after being “admitted in any status.” See 8 U.S.C. § 1229b(a)(2). The parties do not dispute

that the approval of Guevara’s adjustment of status would

make him “admitted in any status.” However, because his

application for adjustment of status was approved on October

17, 2000, Guevara cannot meet the requirement of seven continuous years of living in the United States based on his date

of adjustment. Therefore, we must decide whether Guevara

GUEVARA v. HOLDER 7389
was “admitted in any status,” when he received employment

authorization from the United States Citizenship and Immigration Services (USCIS) on January 8, 1998 therefore providing him enough time for the requisite seven years.

While the phrase “admitted in any status” has not been

defined, the term “admitted” has. See 8 U.S.C.

§ 1101(a)(13)(A) (“lawful entry . . . after inspection and

authorization”). There is no dispute that Guevara does not

meet the statutory definition of admitted, because he entered

without inspection or authorization. See Vasquez de Alcantar

v. Holder, ___ F.3d ___, Slip op. at 7412-13 (9th Cir. June 3,

2011). The phrase “admitted in any status,” however, has not

been limited to the strict definition of “admitted.”

2

 In In re

Rosas-Ramirez, 22 I. & N. Dec. 616, 619 (B.I.A. 1999), the

BIA held that the term “admitted” included those who are

“lawfully admitted for permanent residence.” See also Matter

of Koljenovic, 25 I. & N. Dec. 219 (B.I.A. 2010). Again, in

Cuevas-Gaspar v. Gonzales, we held that, for purposes of satisfying the seven years of continuous residence, a parent’s

LPR status is imputed to unemancipated minor children for

purposes of “admission.” 430 F.3d 1013, 1029 (9th Cir.

2005). Lastly, in Garcia-Quintero, we held that participation

in the FUP was equivalent to being “admitted in any status.”

455 F.3d at 1018-19. However, Guevara’s situation is not

directly analogous to any of these cases. 

Regardless, Guevara argues that we should include aliens

who are granted employment authorization in the definition of

“admitted in any status.” He argues that the employment

authorization is the equivalent of the FUP acceptance held to

constitute admission in Garcia-Quintero, because he was

authorized by the government to stay in the United States

2We note, however, that the Eleventh Circuit recently held for purposes

of waiver of removal under § 212(h), that the term “admitted” was limited

to the statutory definition of 8 U.S.C. § 1101(a)(13)(A). Lanier v. Holder,

631 F.3d 1363, 1366 (11th Cir. 2011). 

7390 GUEVARA v. HOLDER
pending the approval of his application for adjustment of status. He argues that the fact that he was not allowed to leave

the United States when he requested advanced parole is further evidence that this allowance granted him some status.3

We disagree. According the BIA limited deference under

Skidmore, we conclude that (1) a mere grant of employment

authorization does not, without more, confer status; (2)

employment authorization is not equivalent to participation in

the FUP; and (3) the term “unauthorized alien” only refers to

the eligibility to legally work, not to admission status. 

Skidmore Deference

Because the BIA has not issued a precedential opinion on

whether the receipt of an employment authorization document

equates to admission, we need not accord the agency Chevron

deference. See Garcia-Quintero, 455 F.3d at 1012-13. In this

case, the BIA issued a unpublished, nonprecedential decision

finding that “the starting date for [Guevara’s] accumulation of

seven years of continuous physical presence . . . should not

begin on January 8, 1998, when . . . DHS[ ] issued him an

employment authorization document . . . . Rather, we conclude that the starting date for [Guevara’s] accumulation of

seven years of continuous physical presence was on October

18, 2000, the date on which [his] application for adjustment

of status was approved . . . .” The BIA found that the holding

in Garcia-Quintero, “does not extend to an alien who was

simply granted an [employment authorization document],”

because Guevara’s “circumstances are distinct from a FUP

beneficiary.” Although we find the BIA’s conclusions persuasive, its decision lacks a thorough and meaningful analysis.

Thus, we only accord the BIA decision some deference under

Skidmore. See Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir.

3Guevara does not argue that the denial of advanced parole provided

him status. Thus, we do not address it here. We nevertheless note that

applying the date of denial would not have provided the requisite seven

years (September 29, 1999 to September 17, 2006). 

GUEVARA v. HOLDER 7391
2010) (“[T]he weight of the Board’s decision depends on ‘the

thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade,

if lacking power to control.’ ” (quoting Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944)). With this limited deference

in mind, we analyze whether Guevara’s employment authorization constituted admission “in any status.”

1. Grant of employment authorization does not constitute

“admission in any status”

[2] Guevara was granted authorization to accept employment pending the adjudication of his adjustment of status

application pursuant to 8 C.F.R. § 274a.12(c)(9). Regulation

8 C.F.R. § 274a.12 sets forth the classes of aliens authorized

to accept employment. The main three classes of aliens are:

(a) “Aliens authorized employment incident to status;” (b)

“Aliens authorized for employment with a specific employer

incident to status;” and (c) “Aliens who must apply for

employment authorization.” 8 C.F.R. § 274a.12. Subsection

(a) lists classes of aliens who are authorized employment incident to status. § 274a.12(a). This employment authorization is

granted without restriction. Id. All of the aliens described in

this section are either “admitted” or “granted” status. See 8

C.F.R. §§ 274a.12(a)(1) -(20). A sample of this group

includes (1) aliens who have been granted asylum,

§ 274a.12(a)(5); (2) any alien granted Temporary Protected

Status, § 274a.12(a)(12); and (3) any alien granted FUP benefits, § 274a.12(a)(14). 

Subsection (c) similarly allows aliens to receive employment authorization. However, these aliens are not granted

authorization “incident to status,” but must instead apply for

employment authorization. § 274a.12(c). Aliens listed in this

class may or may not have any legal status. For example, this

class of aliens includes (1) aliens (like Guevara) applying for

adjustment of status, § 274a.12(c)(9); (2) aliens against whom

7392 GUEVARA v. HOLDER
a final order of removal exists, but who cannot be removed

due to the refusal of all designated countries,

§ 274a.12(c)(18); and (3) aliens applying for Temporary Protected Status, § 274a.12(c)(19). 

[3] As noted above, 8 C.F.R. § 274a.12(c)(9) specifically

allows adjustment of status applicants, such as Guevara, to

request employment authorization while their application is

pending. 8 C.F.R. § 274a.12(c)(9). However, the authorization

for such employment is not mandated. 8 C.F.R.

§ 274a.13(a)(1). Instead, the USCIS grants such authorization

“within [its] discretion.” Id. Applicants under § 274a.12(c)

may also have their grant of employment authorization terminated or revoked at any time under the criteria set forth in 8

C.F.R. § 274a.14, which includes, but is not limited to: (1) a

preset expiration date; (2) initiation of deportation proceedings; (3) a showing of good cause; or (4) a showing that the

information in the application is not true and correct. 8 C.F.R.

§ 274a.14(a)-(b). 

[4] The language in the statute and the regulations authorizing employment do not support the proposition that aliens

provided this benefit are “admitted in any status.” There is no

language in the statute or regulations that suggests aliens, not

previously admitted, become “admitted,” when they are

granted employment authorization under 8 C.F.R.

§ 274a.12(c). There is nothing in case law, statutes, or administrative regulations which supports a finding that a grant of

employment authorization (to an alien not previously admitted) is the equivalent to being admitted. As noted, § 274a.12

allows several classes of aliens to apply for employment

authorization. While subsection (a) applies exclusively to

aliens who have been admitted or granted status and states the

authorization is “incident to status,” subsection (c) does not.

Guevara falls under subsection (c). The class of aliens to

which Guevara belongs is not necessarily admitted nor has it

necessarily obtained lawful status. Without a clear mandate

GUEVARA v. HOLDER 7393
from Congress, we decline to extend the definition of “admitted in any status” in this instance.4

2. Employment authorization is not equivalent to FUP

participation 

We decline to extend the reasoning of Garcia-Quintero,

which addressed FUP beneficiaries, to all aliens who receive

employment authorization.5 Mere employment authorization

for adjustment of status applicants is not comparable to participation in the FUP. Further, the employment authorization for

the two classes of aliens is not similar. 

[5] As we discussed in Vasquez de Alcantar, the FUP was

enacted by Congress to assist a very narrow group of aliens.

Vasquez de Alcantar, Slip op. at 7420. In doing so, it set forth

4Our dissenting colleague argues that, because the end result for both

classes of aliens is largely equivalent, that status is conferred (albeit not

necessarily equally) when employment is authorized. Dissent at 7400-01

(“It may be that those who are able to satisfy FUP entrance criteria enjoy

a more privileged status . . . .”). While the employment authorization may

provide some type of “authorization” or “status” for an alien to temporarily remain in the United States pending his application for adjustment of

status, this benefit is not an admission. See, e.g., United States v. Bazargan, 992 F.2d 844, 848 (8th Cir. 1993) (rejecting alien’s argument that a

grant of employment authorization as a consequence of his asylum petition

made him a legal alien for purposes of 18 U.S.C. § 922(g)(5)); United

States v. Orellana, 405 F.3d 360, 370 (5th Cir. 2005) (“Receipt of temporary benefits such as employment authorization or a temporary stay of

removal does not render an otherwise illegal alien’s presence lawful.”).

This temporary authorization to remain in the United States exists regardless of whether an alien is given the right to work but it is not equivalent

to being admitted. See, e.g., United States v. Ochoa-Colchado, 521 F.3d

1292, 1298 (10th Cir. 2008) (“[T]here is a distinction to be drawn between

tolerating an alien’s presence for a limited purpose and legalizing an

alien’s presence.”). 

5We do not address the effect of the BIA’s decision in Matter of RezaMurillo, 25 I. & N. Dec. 296 (B.I.A. 2010), which rejected this court’s

reasoning in Garcia-Quintero. Furthermore, the parties do not argue that

we must defer to the agency’s reinterpretation of “admitted in any status.”

7394 GUEVARA v. HOLDER
heightened requirements for eligibility. Id. at 7420-21. The

FUP was enacted to prevent the separation of families and to

provide a means by which a qualifying family member

(already in the United States in illegal status) could eventually

apply for permanent resident status. See Immigration Act of

1990, Pub. L. No. 101-649, § 301. In contrast, Congress did

not have the same familial concerns in enacting the legislation

permitting a nonimmigrant to adjust his or her status to that

of a person admitted for permanent residence under 8 U.S.C.

§ 1255. It allowed aliens, who met certain criteria (work, family, or otherwise), to apply for adjustment of status. However,

8 U.S.C. § 1255 does not entitle aliens, who entered without

inspection, to any admission “status” by reason of their application alone. See Vasquez de Alcantar, Slip op. at 7417-18. 

[6] Generally, aliens must have lawful status prior to

applying for adjustment of status. Congress, however, made

an exception for those aliens who entered without inspection.

See 8 U.S.C. § 1255(i). Section 1255(i) allows aliens (such as

Guevara), who were not previously admitted, to apply for

adjustment if they were the beneficiary of a visa petition filed

before April 30, 2001. Id. This exception, however, only confers the right to apply. It does not suggest that the undocumented alien becomes admitted due to the mere filing of the

application. If Congress intended for a status to be conferred

at the time of filing, it could have easily done so. Thus,

merely allowing all applicants (regardless of status) to work

while seeking adjustment cannot, without more, equate to

admission. 

As we noted in Vasquez de Alcantar, in order for aliens to

be allowed to participate in the FUP, they must meet heightened eligibility requirements. Slip op. at 7420-21. In return,

they also have benefits that are not available to applicants for

adjustment of status. Id. While both groups are able to work,

the FUP provides additional benefits, most notably protection

from removal for a renewable two-year period (i.e., voluntary

GUEVARA v. HOLDER 7395
departure6

). See Pub. L. No. 101-649 § 301; Garcia-Quintero,

455 F.3d at 1009. This benefit is not available to aliens with

pending adjustment of status applications. See 8 U.S.C.

§ 1255. These differences in both eligibility and benefits are

important in our consideration of whether to extend admission

status beyond that set forth in 8 U.S.C. § 1101(a)(13)(A). 

[7] In Garcia-Quintero, our decision to allow FUP participants to qualify as admitted in any status was not based upon

the fact that FUP participants were allowed to work. 455 F.3d

1015-18. Our decision instead focused on the aliens’ acceptance into the FUP. Id. at 1015. As part of that acceptance, we

looked at Garcia-Quintero’s enrollment in the program, specifically noting that it provided protection from deportation

and that FUP beneficiaries “shall be inspected and admitted

in the same immigration status as the alien had at the time of

departure.” Id. at 1017-18 (emphases in the original). A

review of these eligibility requirements and resulting benefits

(as a whole) supported our conclusion that Congress intended

that FUP beneficiaries be “accorded a limited immigration

status.” Id. at 1018 & n.9. However, we have never discussed

each of those individual benefits and concluded that each

would be an independent basis for admission status. We again

decline to find that grant of one of those benefits — employment authorization — is equivalent to participation in the

FUP and thus an independent basis for admission status. 

However, even if the individual benefit of employment

authorization for FUP beneficiaries were compared to Guevara’s employment authorization, they are far from the same

authorization. If the agency intended the benefit to be the

6The grant of FUP voluntary departure is not the same as voluntary

departure defined under 8 U.S.C. § 1229c. “Unlike the removal context,

in which voluntary departure focuses on the alien’s leaving the United

States due to his removability, FUP voluntary departure focuses on the

alien’s staying in the United States while he adjusts his status to LPR.”

Garcia-Quintero, 455 F.3d at 1017-18. 

7396 GUEVARA v. HOLDER
same, there was no need to separate the aliens into classes.

Compare 8 C.F.R. § 274a.12(a)(12) with § 274a.12(c)(19)

(separating classes for aliens granted Temporary Protected

Status versus aliens applying for Temporary Protected Status).

FUP beneficiaries are designated under subsection (a), which

authorizes employment “incident to status,” 8 C.F.R.

§ 274a.12(a), whereas Guevara’s employment authorization

was under subsection (c), which requires aliens to apply for

authorization, § 274a.12(c). Subsection (a), unlike subsection

(c) (as noted above), does not provide for any discretion in

granting or denying employment authorization, because such

aliens are allowed such authorization incident to their status.

See 8 C.F.R. § 236.15(d) (“An alien granted benefits under

the Family Unity Program is authorized to be employed in the

United States and will receive an employment authorization

document.” (emphasis added)). Moreover, unlike applicants

under subsection (c), the USCIS cannot terminate employment authorization for FUP beneficiaries or others aliens

included under subsection (a). See 8 C.F.R. § 274a.14. Thus,

the regulations set forth that the employment authorization

between the classes is distinct from each other.

We decline to interpret a commonality among these different classes of aliens merely due to the possible end result —

a grant of a work permit. Thus, we conclude that, even looking at this isolated benefit, there is no support for concluding

that Congress intended to make a whole class of aliens (not

inspected or authorized) “admitted” by the mere grant of an

employment authorization. 

Our dissenting colleague points to the BIA’s decision in

Matter of Blancas-Lara, 23 I.&N. Dec. 458 (BIA 2002),

which holds that a nonimmigrant who was admitted to the

United States with a 72 hour border crossing card has satisfied

the requirement of having been “admitted in any status” for

the purposes of accruing the 7 years residency requirement

needed for cancellation of removal. Id. 459-60. The dissent

contends that it is “illogical” to allow such accrual of overGUEVARA v. HOLDER 7397
stayed time and deny accrual for undocumented immigrants

like Guevara who have work permits while waiting for adjustment of status under 8 U.S.C. § 1255(i). The dissent overlooks the key distinction, which is that Blancas-Lara satisfied

the statutory requirement of having been “admitted” by “lawful entry . . . after inspection and authorization.” See Matter

of Blancas-Lara, 23 I.&N. Dec. at 459-60 (citing 8 U.S.C.

§ 1101(a)(13)(A)). Here, the dissent does not dispute that

Guevara did not meet the statutory definition of “admitted”

under § 1101(a)(13)(A). 

Although Blancas-Lara was unlawfully present in the

United States after his border crossing card expired, Congress

in 28 U.S.C. § 1229b(a)(2) did not include maintenance of

status as a prerequisite for relief. Rather, as the BIA in

Blancas-Lara recognized, “it chose only to require 7 years of

continuous residence after admission to the United States.” 23

I.&N. Dec. at 460. 

There is nothing illogical about distinguishing between

Blancas-Lara, who was lawfully admitted to the United

States, from Guevara, who entered without inspection and

authorization and received employment authorization while

awaiting lawful status.

3. The term “unauthorized alien” does not suggest 

admission 

[8] Lastly, it seems that Guevara argues that the plain language of the 8 C.F.R. § 274a.12(c)(9) provides status. Guevara argues that the employment authorization provides

status, in part, based upon the language that “an alien will not

be deemed to be an ‘unauthorized alien.’ ”

7

See 8 C.F.R.

7An “unauthorized alien,” under 8 U.S.C. § 1324a(h)(3), “means, with

respect to the employment of an alien at a particular time, that the alien

is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 

7398 GUEVARA v. HOLDER
§ 274a.12(c)(9). This argument is not correct. This language

does not provide any admission status. Rather, it merely

allows an employer to legally hire an alien (whether admitted

or not) while his application is pending. See, e.g., 8 U.S.C.

§ 1324a. We find nothing in the statute or administrative regulation to provide for more.

PETITION FOR REVIEW DENIED.

FISHER, Circuit Judge, dissenting:

I respectfully dissent. In my view, under Garcia-Quintero

v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), Guevara was “admitted in any status” for purposes of 8 U.S.C. § 1229b(a)(2)

when the government exercised its discretion to grant his

application for employment authorization. The Immigration

Judge (IJ) correctly applied Garcia-Quintero in concluding

that Guevara is eligible for cancellation of removal. I would

grant the petition for review and remand for entry of an order

cancelling removal, consistent with the IJ’s decision.

I.

Section 1229b(a) allows the Attorney General to cancel

removal for aliens who (1) have accrued five years in legal

permanent resident (LPR) status, (2) have “resided in the

United States continuously for seven years after having been

admitted in any status,” and (3) have not been convicted of

any aggravated felony. At issue here is whether and when

Guevara was “admitted in any status” for purposes of

§ 1229b(a)(2). I would hold he received such an admission

when he was granted an employment authorization benefit

that is functionally very similar to the Family Unity Program

(FUP) acceptance held to constitute § 1229b(a)(2) admission

in Garcia-Quintero, 455 F.3d at 1018-19. 

GUEVARA v. HOLDER 7399
I recognize that applicable regulations provide some basis

for distinguishing FUP beneficiaries from applicants for

adjustment of status under Immigration and Nationality Act

§ 245(i), 8 U.S.C. § 1255(i), like Guevara. Whereas 8 C.F.R.

§ 274a.12(a) makes FUP participants automatically eligible

for work authorization “incident to status,” subsection (c) of

that regulation requires applicants for adjustment of status to

apply for employment authorization. But the majority’s reliance on this distinction misses the point. See Maj. Op. at

7392-94. The issue is not whether Guevara received employment authorization as a result of some existing status. This

case instead presents the converse question: whether status

was conferred on Guevara as a result of the discretionary

grant of employment authorization. 

I would hold that it was. Once employment authorization

is granted under § 274a.12(c), it is largely equivalent to the

§ 274a.12(a) authorization to which FUP participants are entitled: it allows the holder to live and work in the United States

openly and lawfully while his application for adjustment of

status is processed. Thus, although the employment authorization Guevara received is formally distinguishable from the

employment authorization available to FUP beneficiaries,

Guevara’s authorization was substantially comparable to the

FUP benefit. Both the benefit Guevara received and the similar benefit available through the FUP implicitly authorize

temporary residency pending final resolution of the beneficiary’s application to adjust status. 

The majority distinguishes FUP beneficiaries from other

§ 245(i) applicants by pointing to the relatively stringent FUP

entrance criteria. See Maj. Op. at 7394-95. But the majority

does not explain how these heightened requirements for FUP

acceptance differentiate those ultimately allowed into the program from applicants who are granted similar benefits. Differences in program entrance criteria are of little import after the

agency has exercised its discretion to grant the applicant benefits. It may be that those who are able to satisfy FUP

7400 GUEVARA v. HOLDER
entrance criteria enjoy a more privileged status than that of

§ 245(i) applicants granted work authorization, by virtue of

having passed through a more stringent selection process and

having received greater benefits. “Any” status is acceptable

for purposes of § 1229b(a)(2), however. Cf. United States v.

Ochoa-Colchado, 521 F.3d 1292, 1298 (10th Cir. 2008)

(acknowledging that even if employment authorization does

not make an alien’s presence legal, “[a]n alien who has filed

for adjustment of status and received an [employment authorization document] may in some sense be ‘authorized’ to be in

the United States, inasmuch as he is granted a temporary

reprieve from removal proceedings and permitted to work

here pending the outcome of his case”). 

I also recognize that FUP regulations allowing travel

abroad are more permissive than those governing advance

parole of § 245(i) applicants like Guevara, as was pointed out

in Vasquez de Alcantar v. Holder, No. 08-71427, filed concurrently with this opinion. See Vasquez de Alcantar at

7422-23.1 Unlike a non-FUP applicant, a FUP program participant may travel outside the United States and will upon

return be “admitted in the same immigration status as the

alien had at the time of departure.” 8 C.F.R. § 236.16. NonFUP applicants, by contrast, must apply for advance parole

before they may travel abroad, and the grant of advance

parole does not itself constitute an admission. See 8 U.S.C.

§ 1182(d)(5)(A). The very existence of an advance parole

application process implies that applicants like Guevara have

a legal benefit they stand to lose, however. In Guevara’s case,

that benefit was significant: if he left the United States without permission, he risked being stripped of the employment

authorization the agency affirmatively exercised its discretion

to grant. Of course, given their more generous travel privi1As I noted in my concurrence in Vasquez de Alcantar, I do not read

that opinion to address the issue in this case, so it does not foreclose the

conclusion I urge here. See Vasquez de Alcantar at 7424 (Fisher, J., concurring). 

GUEVARA v. HOLDER 7401
leges, FUP beneficiaries may enjoy a more privileged status

than that of non-FUP employment authorization holders like

Guevara. However, that difference is irrelevant for purposes

of § 1229b(a)(2), which does not distinguish among different

sorts of status. 

I am likewise unpersuaded that a grant of employment

authorization cannot constitute admission in any status under

Yepez-Razo v. Gonzales, 445 F.3d 1216, 1219 (9th Cir. 2006),

also cited in Vasquez de Alcantar. See Vasquez de Alcantar

at 20. Yepez-Razo recognized that after a FUP beneficiary is

accepted into the program, the time the beneficiary spends in

the program does not count as unlawful presence under 8

U.S.C. § 1182(h). See Yepez-Razo, 445 F.3d at 1218-20. As

I explain further below, however, those who receive discretionary employment authorization benefits are also legitimately present, notwithstanding the lack of similar statutory

language explicitly recognizing their lawful status. 

In sum, the majority offers no convincing reason to distinguish this case from Garcia-Quintero. I would follow GarciaQuintero by holding that the discretionary grant of an

employment authorization constitutes § 1229b(a)(2) admission.

II.

The majority’s contrary conclusion — that undocumented

§ 245(i) applicants are not admitted in any status until their

§ 245(i) applications are approved — means that relatively

minor differences in the circumstances of the applicant’s entry

into the United States dramatically alter the application of

§ 1229b(a)(2). 

In Matter of Blancas-Lara, the BIA held that nonimmigrants whose presence in the United States was once legal, no

matter how briefly, have been “admitted in any status.” See

Matter of Blancas-Lara, 23 I. & N. Dec. 458, 459-61 (B.I.A.

7402 GUEVARA v. HOLDER
2002). Blancas-Lara concluded that a nonimmigrant who

entered with a border crossing card allowing him to stay in

the United States for 72 hours was admitted in any status at

the time of his lawful entry, and that subsequent years during

which the nonimmigrant remained in the United States illegally could be counted toward § 1229b(a)(2)’s seven-year

requirement. See Blancas-Lara, 23 I. & N. Dec. at 459. It

would be illogical to allow nonimmigrants who overstay their

visas to accrue time toward the seven-year requirement during

their unlawful presence whereas undocumented aliens who

have been granted permission to work in the United States

during the pendency of their § 245(i) applications cannot do

the same. From a commonsense standpoint, the presence of a

§ 245(i) applicant who has been permitted to work in the

United States is more legitimate than the unlawful presence of

a nonimmigrant whose temporary visa has expired. But the

majority’s reasoning permits just such a result.

III.

I recognize that the BIA disagreed with the reasoning of

Garcia-Quintero in Matter of Reza-Murillo, 25 I. & N. Dec.

296 (B.I.A. 2010), although I leave for another day the reconciliation of Garcia-Quintero and Reza-Murillo under National

Cable & Telecommunications Association v. Brand X Internet

Services, 545 U.S. 967, 982-83 (2005), which the government

does not invoke. I do note, however, that I do not find persuasive Reza-Murillo’s insistence that “declining to treat a grant

of FUP benefits as an ‘admission’ . . . does not create absurd

or bizarre results.” Reza-Murillo, 25 I. & N. Dec. at 299.

Reza-Murillo does produce absurdities, by divorcing the accumulation of time toward the seven-year requirement from the

apparent statutory goal of requiring accrual of legitimate presence. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1027-

28 (9th Cir. 2005) (concluding that the § 1229b(a)(2) requirement “was designed to [allow for] counting a limited period

of time spent in non-permanent status”). As explained above,

Reza-Murillo and Blancas-Lara allow aliens who entered

GUEVARA v. HOLDER 7403
legally but soon after lapsed into illegal status to qualify for

cancellation of removal, while denying cancellation relief to

aliens like Guevara whose presence has long been recognized

and accepted by the Attorney General. 

***

In sum, I would hold that, consistent with Blancas-Lara

and Garcia-Quintero, Guevara was “admitted in any status”

when the United States exercised its discretion to grant his

application for employment authorization. Because he

received such admission more than seven years before receiving a notice to appear, he was eligible for cancellation of

removal, which the IJ exercised his discretion to grant. I

would grant the petition for review and remand for reinstatement of the IJ’s decision. 

7404 GUEVARA v. HOLDER