### 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 Boar d 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 havi ng been “admitted in any status”)

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

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 3, 2015 Lyle W. Cayce Clerk Case: 14-60164 Document: 00512955400 Page: 1 Date Filed: 03/03/2015N o. 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). T he BIA’ s legal determination that Gomez is ineligi ble 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 C hevron , 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 U nited States without inspection. H is application for voluntary departure and employment authorization under the Family Fairness Program, later the FUP , was approved in 1991 . He was
gran ted 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 ineligi ble 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 g ranted legal permanent resident status may seek cancellation of removal if th ey have “ b een 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 an y 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 cla im 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 asse rts 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.

3 Case: 14-60164 Document: 00512955400 Page: 3 Date Filed: 03/03/2015