IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60164

Summary Calendar

OCIEL IVAN GOMEZ-SORIA,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A070 611 840

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

Ociel Ivan Gomez-Soria petitions for review of the Board of Immigration 

Appeals’ (BIA) decision denying his request for cancellation of removal, under 

8 U.S.C. § 1229b(a) (requiring, inter alia, continuous residence in United 

States for seven years after having been “admitted in any status”). Gomez 

challenges the BIA’s determination that a grant of benefits under the Family 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 3, 2015

Lyle W. Cayce

Clerk

 

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No. 14-60164

Unit Program (FUP), 8 C.F.R. § 236.12, does not constitute an “admission in 

any status” for the purposes of 8 U.S.C. § 1229b(a). 

The BIA’s legal determination that Gomez is ineligible for cancellation 

of removal is reviewed de novo; to the extent its determination relies upon 

interpretation of ambiguous provisions in the Immigration and Naturalization 

Act, such interpretation is reviewed in accordance with Chevron, U.S.A. Inc. v. 

Natural Resources Defense Council, 467 U.S. 837 (1984). Ruiz-Romero v. Reno, 

205 F.3d 837, 838 (5th Cir. 2000); see also, e.g., Diaz v. Ashcroft, 108 F. App’x 

972, 973 (5th Cir. 2004).

In 1983, Gomez entered the United States without inspection. His 

application for voluntary departure and employment authorization under the 

Family Fairness Program, later the FUP, was approved in 1991. He was 

granted legal permanent residence in October 1995. After his guilty-plea

conviction for possession of a controlled substance in July 2002, he was charged 

with removability under 8 U.S.C. § 1229, and, at his removal hearing, sought 

cancellation of removability under 8 U.S.C. § 1229b(a). The immigration judge

deemed him ineligible for cancellation of removal because he failed to meet the 

seven-years’ continuous-residence requirement. See 8 U.S.C. § 1229b(a)(2). 

The BIA agreed. 

Aliens who have been granted legal permanent resident status may seek 

cancellation of removal if they have “been an alien lawfully admitted for 

permanent residence for not less than 5 years, ha[ve] resided in the United 

States continuously for 7 years after having been admitted in any status, and 

ha[ve] not been convicted of any aggravated felony”. 8 U.S.C. § 1229b(a) 

(emphasis added). According to Gomez, he met the requirement of being

continuously present seven years in the United States because he was 

“admitted in any status” in 1991 when he was accepted into the FUP benefit 

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program. This claim has been rejected by both the BIA in a precedential 

decision and by this court in a non-precedential (persuasive) opinion. E.g., 

Matter of Reza-Murillo, 25 I&N Dec. 296, 299–300 (BIA 2010); Diaz, 108 F. 

App’x at 973–75. Moreover, insofar as Gomez asserts the BIA’s interpretation 

of “admission” in both this case and in Matter of Reza-Murillo is arbitrary and 

capricious, and assuming arguendo the term is ambiguous, no compelling 

evidence shows the BIA’s interpretation is incorrect under Chevron deference. 

See, e.g., Dhuka v. Holder, 716 F.3d 149, 157 (5th Cir. 2013).

DENIED.

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