FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS ANTONIO LEZAMA-GARCIA, 

Petitioner, No. 06-74703

v. Agency No.  A75-479-222 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 5, 2010*

Pasadena, California

Filed November 30, 2011

Before: Alfred T. Goodwin and Johnnie B. Rawlinson,

Circuit Judges, and J. Michael Seabright,** District Judge.

Opinion by Judge Seabright;

Dissent by Judge Rawlinson

*The panel unanimously concludes that this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable J. Michael Seabright, United States District Judge for

the District of Hawaii, sitting by designation. 

20457
COUNSEL

Raul Montes, Montes, Montes & Montes, Chula Vista, California, for petitioner Carlos Antonio Lezama-Garcia.

Scott Rempell, United States Department of Justice, Washington D.C., for respondent Attorney General Eric H. Holder Jr.

OPINION

SEABRIGHT, District Judge:

Carlos Antonio Lezama-Garcia (“Lezama”), a native and

citizen of Nicaragua, petitions for review of an order of the

Board of Immigration Appeals (“BIA”) dismissing his appeal

of an immigration judge’s (“IJ”) order of removal. The IJ

determined that, under 8 C.F.R. § 245.13(k)(1), Lezama had

20460 LEZAMA-GARCIA v. HOLDER
abandoned his pending application for adjustment of status

under Section 202 of the Nicaraguan Adjustment and Central

American Relief Act1 (“NACARA”) as of the moment he

drove from the United States into Mexico — even if his

unplanned departure was not desired and he immediately

turned around and attempted to return. As a result, the IJ

ordered Lezama to be removed as an inadmissible arriving

alien.

We conclude that deeming Lezama’s NACARA application

abandoned was contrary to the regulation, and ordering

removal conflicted with NACARA itself. We therefore grant

the petition and remand for further proceedings.2

I. BACKGROUND

Lezama entered the United States without inspection from

Nicaragua. He has remained in this country continuously

since at least April 1993 (other than the March 2004 incident

in question here where he drove into Mexico).3 He was subject to an order of removal, having had a prior asylum application denied in absentia in 1997. In March of 2000,4

1Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997) (codified as

amended in statutory notes following 8 U.S.C. § 1255). 

2The BIA also affirmed the IJ’s denial of Lezama’s applications for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). We uphold those aspects of the BIA’s decision in a separate memorandum disposition filed concurrently with this opinion. 

3Several documents in the administrative record indicate that Lezama

entered in March or April 1993, although an earlier asylum application

suggests that he first entered in April 1991. In any event, the record is

undisputed that he was present in the United States continuously from

April 1993 until March 25, 2004. 

4The exact date of his NACARA § 202 application is unclear — a U.S.

Citizenship and Immigration Services document indicates it was filed on

March 31, 2000, although Lezama had stated it was filed on March 27,

2000. A different document refers to a “receipt date” of May 16, 2000.

The application date is important because NACARA requires an application to have been filed before April 1, 2000. NACARA § 202(a)(1)(A). 

LEZAMA-GARCIA v. HOLDER 20461
however, he applied for relief under NACARA § 202 — a

provision excusing both his prior entry without inspection and

the pending 1997 order of removal — to adjust his status to

that of an alien lawfully admitted for permanent residence.

NACARA is powerful legislation for an alien like Lezama

who has no criminal record. Enacted in 1997 in response to

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, 110 Stat. 3009 (1996) (“IIRIRA”), among other

measures, “NACARA § 202 created a new ‘adjustment of status’ process for qualified nationals of Nicaragua and Cuba.”

Masnauskas v. Gonzales, 432 F.3d 1067, 1070 (9th Cir.

2005).

NACARA [§ 202] mandated that the Attorney General legalize the status of Nicaraguan and Cuban

nationals unlawfully present in the United States if

they (1) had been physically present in the United

States for a continuous period beginning no later

than December 1, 1995 through the date of the application for relief; (2) applied for adjustment of status

before April 1, 2000; (3) were otherwise eligible to

receive an immigrant visa; and (4) were otherwise

admissible to the United States for permanent residence.

Frech v. U.S. Attorney Gen., 491 F.3d 1277, 1279 (11th Cir.

2007).5 That is, if a NACARA § 202 applicant is eligible, the

status of the alien “shall be adjusted by the Attorney General

to that of an alien lawfully admitted for permanent residence[.]” NACARA § 202(a)(1) (emphasis added). Further,

while an application is pending, a NACARA § 202 applicant

is entitled to a stay of removal, and a grant of work authorization. Id. §§ 202(c)(1) & (2).

5Congress subsequently repealed the third condition (“otherwise available to receive an immigrant visa”). NACARA — Technical Corrections

§ 1(a)(2), Pub. L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997). 

20462 LEZAMA-GARCIA v. HOLDER
Lezama appears to have met the eligibility requirements for

§ 202(a) relief. Although not entirely clear, his application

was apparently filed before April 1, 2000. He was physically

present in the United States before December 1, 1995, and

such presence continued uninterrupted until the date he

applied. See id. § 202(b)(1).6 He appears to have been “otherwise admissible” as he had no criminal history. The legacy

Immigration and Naturalization Service (“INS”) had completed “preliminary processing” of his application, but

Lezama was awaiting an interview in 2004. Meanwhile,

Lezama had NACARA work authorization, and the prior

removal order was stayed.

On March 25, 2004, Lezama was driving a company truck

from Long Beach, California, to a company office in San Diego.7

He could not locate his destination, and found himself in traffic on the “I-5” freeway going toward the Mexico border near

San Ysidro, California. As he neared the border, he was

unable to locate an exit and tried to move out of traffic, but

a police officer motioned for him to keep going. He drove into

Mexico, immediately turned around to come back to the

United States, but was turned away. Specifically, Lezama

describes the circumstances of his unplanned departure from

the United States, in part, as follows:

6NACARA § 202(b)(1) provides: 

The benefits provided by [§ 202(a)] shall apply to any alien who

is a national of Nicaragua or Cuba and who has been physically

present in the United States for a continuous period, beginning

not later than December 1, 1995, and ending not earlier than the

date the application for adjustment under such subsection is filed,

except an alien shall not be considered to have failed to maintain

continuous physical presence by reason of an absence, or

absences, from the United States for any periods in the aggregate

not exceeding 180 days. 

7This factual description of the March 25, 2004 incident is taken from

Lezama’s translated verified declaration, which the government did not

dispute and which the IJ accepted as accurate. 

LEZAMA-GARCIA v. HOLDER 20463
I was not familiar with the area of San Diego, having

been there only once before in my life. I arrived in

San Diego at about 6:15 a.m. that morning. I was on

Interstate Highway 5 south; however, I could not

locate the appropriate offramp to the company

office. I continued driving south on 5 and before I

knew it I was in the area of San Ysidro, California

near the United States/Mexican border. As I got

close to the border I was looking for a way to turn

the truck around in order to head back north. I

worked my way out of the traffic toward the side of

freeway 5 and slowed down looking for a place to

stop; however, there was a police officer in the area

who yelled in my direction saying, “Let’s go, let’s

go,” while motioning with his hand for me to continue south. I figured that there must be a place further south on the American side of the border where

I could make a Uturn [sic] or exit in order to head

back north on 5. So I proceeded slowly south on 5

looking for a U-turn or an exit; however, before I

knew it I was in the flow of traffic being funneled

through the exit to Mexico, unable to stop. The next

thing I knew I had unintentionally crossed the United

States/Mexican border into Mexico.

When he turned around, Lezama was refused admission at the

San Ysidro Port of Entry because he lacked a valid entry document. Desperate, he tried again four days later at the Otay

Mesa Port of Entry, with someone else’s identification, and

was detained.

Lezama was subsequently charged in a Notice to Appear

with being an “arriving alien” subject to removal under 8

U.S.C. § 1182(a)(7)(A)(i)(I) because he lacked valid entry

documents when applying for admission. Lezama filed a

motion to terminate removal proceedings, contending he was

not an “arriving alien.”

8

 He argued that, because he did not

8An “arriving alien” is defined by regulation in pertinent part as “an

applicant for admission coming or attempting to come into the United

States at a port-of-entry.” 8 C.F.R. § 1001.1(q). 

20464 LEZAMA-GARCIA v. HOLDER
intend to depart the United States, he was not making an

“entry” into the country when he returned. The IJ acknowledged Lezama’s inadvertent departure but, given the pending

removal order against him, the IJ denied the motion to terminate. The IJ reasoned:

[i]f the only problem we had here was the fact that

Mr. Lezama left the United States inadvertently, that

would be something obviously that has to be considered [but] the problem was there was an in absentia

deportation order pending at the time that he inadvertently went across the border. And so he selfdeported himself.

A different IJ later also concluded that Lezama had abandoned his pending NACARA § 202 application “as of the

moment of his departure.” The IJ relied on 8 C.F.R.

§ 245.13(k) — part of NACARA’s implementing regulations

— which provides in part:

Unless the applicant files an advance parole request

prior to departing from the United States, and the

Service approves such request, his or her application

for adjustment of status under section 202 of Public

Law 105-100 is deemed to be abandoned as of the

moment of his or her departure.

The IJ reasoned that “[t]he regulation does not speak in

terms of a[n] ‘inadvertent’ or ‘involuntary’ departure . . . it

simply declares that any alien who departs the United States

without advanced parole (as [Lezama] did) abandons his

application for NACARA adjustment.” The IJ was “unwilling

to graft onto the regulation[’s] language a ‘voluntary departure’ proviso.” Accordingly, the IJ ordered Lezama removed

after finding him inadmissible under § 1182(a)(7)(A)(i)(I).

The BIA affirmed and adopted the IJ’s decision in an

unpublished, one-judge, per curiam order. As for NACARA,

the BIA’s reasoning (in full) was as follows:

LEZAMA-GARCIA v. HOLDER 20465
We adopt and affirm the decision of the Immigration

Judge with the following additions. See Matter of

Burbano, 20 I&N Dec. 872, 874 (BIA 1994) ([parenthetical omitted]). We agree that [Lezama’s] departure from the United States, while his application for

adjustment of status was pending, effected the abandonment of his application for adjustment of status

pursuant to NACARA. See section 245 of the Act, at

Note 9; see also 8 C.F.R. § 1245.13(k)(1). Thus,

[Lezama’s] application for adjustment of status, pursuant to the NACARA, was properly denied.

Lezama then filed this timely petition for review. We have

jurisdiction pursuant to 8 U.S.C. § 1252(a).

II. STANDARDS OF REVIEW

A. We Review Both the IJ and BIA Decisions

Where the BIA adopts and affirms the IJ’s decision by citing Matter of Burbano, it is adopting the IJ’s decision in its

entirety. See Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th

Cir. 2005) (en banc). And where the BIA conducts its own

review of the evidence and law, the court’s “review is limited

to the BIA’s decision, except to the extent the IJ’s opinion is

expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957

(9th Cir. 2006) (internal quotation marks omitted).

Here, the BIA cited Matter of Burbano and stated that it

made “the following additions.” It is not clear whether the

BIA’s “additions” refer to NACARA or only to asylum, but

as to NACARA it appears the BIA “provided its own review

of the evidence and the law” and so “we review both the IJ

and the BIA’s decision.” Joseph v. Holder, 600 F.3d 1235,

1239-40 (9th Cir. 2010).

20466 LEZAMA-GARCIA v. HOLDER
B. We Give “Skidmore Deference” to Nonprecedential

BIA Decisions Interpreting Statutory Provisions

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

of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations.” GarciaQuintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006).

“We apply Chevron deference to the Board’s interpretations

of ambiguous immigration statutes, if the Board’s decision is

a published decision.” Guevara v. Holder, 649 F.3d. 1086,

1089 (9th Cir. 2011). Where — as here — a BIA decision

interpreting a statute is “unpublished and issued by a single

member of the BIA[,] it does not carry the force of law, and

[ ] is accorded only Skidmore [v. Swift & Co., 323 U.S. 134

(1944)] deference proportional to its thoroughness, reasoning,

consistency, and ability to persuade.” Mejia-Hernandez v.

Holder, 633 F.3d 818, 822 (9th Cir. 2011) (citing GarciaQuintero, 455 F.3d at 1012-15).

Under Skidmore, “we defer to the BIA’s determination only

to the extent that it has power to persuade.” SaavedraFigueroa v. Holder, 625 F.3d 621, 625 (9th Cir. 2010); see

also Edu v. Holder, 624 F.3d 1137, 1143 (9th Cir. 2010) (reasoning that “[t]he weight accorded to an administrative judgment in a particular case will depend upon [among other

factors] the thoroughness evident in its consideration”) (quoting United States v. Mead Corp., 533 U.S. 218, 228 (2001)

(some editorial marks omitted)).

C. We Give “Substantial Deference” to an Agency’s

Reasonable Interpretations of its Ambiguous

Regulations

In contrast, an agency’s interpretation of its regulations is

given “substantial deference,” which differs slightly from the

traditional “Chevron deference” given to agency interpretations of statutes. See, e.g., Lal v. INS, 255 F.3d 998, 1004 n.3

(9th Cir. 2001) (“Because this case involves the interpretation

LEZAMA-GARCIA v. HOLDER 20467
by the BIA of its own regulation (and not the language of a

statute) we look to the line of cases including Shalala v.

Guernsey Memorial Hospital, 514 U.S. 87 (1995), Thomas

Jefferson University v. Shalala, 512 U.S. 504 (1994), and

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945),

and not the line of cases involving interpretations by agencies

of Congressional legislation, including Chevron v. Natural

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

“When the meaning of regulatory language is ambiguous,

the agency’s interpretation of the regulation controls ‘so long

as it is “reasonable,” that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations.’ ” Lal, 255 F.3d at 1004 (quoting Martin v.

Occupational Safety & Health Review Comm’n, 499 U.S. 144,

150-51 (1991)). The court defers “unless an ‘alternative reading is compelled by the regulation’s plain language or by

other indications of the Secretary’s intent at the time of the

regulation’s promulgation.’ ” Thomas Jefferson Univ., 512

U.S. at 512 (quoting Gardebring v. Jenkins, 485 U.S. 415,

430 (1988)). Stated another way, agency interpretations of its

ambiguous regulations are “controlling unless plainly erroneous or inconsistent with the regulation” or there is other “reason to suspect that the interpretation does not reflect the

agency’s fair and considered judgment on the matter in question.” Auer v. Robbins, 519 U.S. 452, 461, 462 (1997) (internal quotation marks and citation omitted). Such agency

interpretations can be controlling even if advanced for the

first time in a legal brief. Talk Am., Inc. v. Mich. Bell Tel. Co.,

131 S. Ct. 2254, 2260 (2011) (citing Chase Bank USA, N.A.

v. McCoy, 131 S. Ct. 871, 880-81 (2011)).

III. DISCUSSION

A. Inadmissibility and NACARA

Lezama contends that his departure on March 25, 2004 was

“unintentional,” “involuntary,” or “inadvertent.” He did not

20468 LEZAMA-GARCIA v. HOLDER
plan to leave the United States, had no purpose to enter Mexico, and did not want to or intend to abandon his pending

NACARA § 202 application. And indeed the government

does not dispute the circumstances of Lezama’s departure.

Rather, the question is whether his intent makes any difference. The government’s position — as the IJ and BIA concluded — is that Lezama’s subjective intent is irrelevant.

Lezama raises his “unintentional” state-of-mind argument

in two contexts: (1) in challenging the determination that he

was an “inadmissible” “arriving alien” and therefore removable, and (2) in challenging the conclusion that he abandoned

his pending NACARA § 202 application for adjustment of

status. He argues that because he did not “intend” to depart,

he did not abandon his application when he drove into Mexico

and was not “seeking entry” when he turned around to come

back. See generally Rosenberg v. Fleuti, 374 U.S. 449, 462

(1963) (reasoning that “innocent, casual, and brief” departures

by a resident alien are ‘unintended’ and do not interrupt residence so as to subject an alien to potential consequences of

an ‘entry’ on return).

Lezama’s argument, however, relies on concepts of “entry”

and “voluntariness” that were superceded by IIRIRA, effective April 1, 1997. See, e.g., Camins v. Gonzales, 500 F.3d

872, 876-79 (9th Cir. 2007) (detailing the history and application of the “Fleuti doctrine,” and explaining how IIRIRA

abolished the doctrine, at least in part). Nevertheless, the concepts are still relevant as some aspects have survived, and are

important in understanding the meaning of the current legal

structure. Thus, before analyzing the effect, if any, of Lezama’s intent under existing law, we briefly review the prior

regime.

1. IIRIRA Changed the Concept of “Entry” to 

“Admission”

Prior to passage of IIRIRA, aliens coming to the United

States seeking “entry” were subject to “exclusion” proceedLEZAMA-GARCIA v. HOLDER 20469
ings, whereas aliens already present in the United States were

subject to “deportation” proceedings. See Hing Sum v.

Holder, 602 F.3d 1092, 1099-1100 (9th Cir. 2010). Those

physically present in the country — including those having

entered illegally without inspection — had advantages over

those seeking “entry.” See, e.g., Landon v. Plasencia, 459

U.S. 21, 26 (1982) (“[A] deportation hearing has a number of

substantive rights not available to the alien who is denied

admission in an exclusion proceeding[.]”). “This so called

‘entry doctrine’ resulted in an anomaly.” Hing Sum, 602 F.3d

at 1100. “[N]on-citizens who had entered without inspection

could take advantage of the greater procedural and substantive

rights afforded in deportation proceedings, while non-citizens

who presented themselves at a port of entry for inspection

were subjected to more summary exclusion proceedings.” Id.

The Immigration and Nationality Act (“INA”) had defined

“entry” as follows:

The term “entry” means any coming of an alien into

the United States, from a foreign port or place or

from an outlying possession, whether voluntarily or

otherwise, except that an alien having a lawful permanent residence in the United States shall not be

regarded as making an entry into the United States

for the purposes of the immigration laws if the alien

proves to the satisfaction of the Attorney General

that his departure to a foreign port or place or to an

outlying possession was not intended or reasonably

to be expected by him or his presence in a foreign

port or place or in an outlying possession was not

voluntary[.]

8 U.S.C. § 1101(a)(13) (repealed 1996) (emphasis added). In

interpreting whether a departure was “intended” and “voluntary,” Fleuti held that only “meaningfully interruptive” departures from the United States subject a resident alien to the

INA’s entry requirements. 374 U.S. at 462. Accordingly, law20470 LEZAMA-GARCIA v. HOLDER
ful resident aliens who made an “innocent, casual, and brief”

trip outside the United States — such as what Lezama appears

to have made — did not “intend” to “depart,” were not seeking “entry” into the United States, and thus were generally not

subject to “exclusion” proceedings.

Although § 1101(a)(13)’s exception for unintended, involuntary (“innocent, casual, and brief”) departures was limited

to aliens “having a lawful permanent residence in the United

States,” we recognized that the exception could apply in other

situations, where Congress so provided. See Aguilera-Medina

v. INS, 137 F.3d 1401, 1404 (9th Cir. 1998) (holding that “the

Fleuti doctrine extends to lawful temporary residents in the

[Special Agricultural Workers] program on the same terms as

to lawful permanent residents”); Mendoza v. INS, 16 F.3d

335, 337 (9th Cir. 1994) (“Barring a congressional mandate,

such as 8 U.S.C. §§ 1254(b)(2) and 1255a(a)(3)(B), the Fleuti

doctrine applies only to lawful permanent resident aliens.”).

Effective April 1, 1997, however, IIRIRA replaced “entry”

with a new concept — “admission.” Section 1101(a)(13) now

uses the term “admission” to include a “lawful entry” as follows:

(A) 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) An alien lawfully admitted for permanent residence in the United States shall not be regarded as

seeking an admission into the United States for purposes of the immigration laws unless the alien —

(i) has abandoned or relinquished that status,

LEZAMA-GARCIA v. HOLDER 20471
(ii) has been absent from the United States

for a continuous period in excess of 180

days, 

(iii) has engaged in illegal activity after

having departed the United States, 

(iv) has departed from the United States

while under legal process seeking removal

of the alien from the United States, including removal proceedings under this chapter

and extradition proceedings, 

(v) has committed an offense identified in

section 1182(a)(2) of this title, unless since

such offense the alien has been granted

relief under section 1182(h) or 1229b(a) of

this title, or

(vi) is attempting to enter at a time or place

other than as designated by immigration

officers or has not been admitted to the

United States after inspection and authorization by an immigration officer.

Congress “eliminated the key terms ‘entry’ and ‘intended’

from [§ 1101(a)(13)] and replaced the former statute with a

comprehensive scheme for determining the classification of

returning aliens.” Camins, 500 F.3d at 879 (quoting Tineo v.

Ashcroft, 350 F.3d 382, 391 (3d Cir. 2003)). Eliminating

“entry” and “intended” — which formed the central basis for

the reasoning in Fleuti — also effectively “abrogated the

Fleuti doctrine” (at least in the admissibility context). Id. at

878-80 (citing Matter of Collado-Munoz, 21 I. & N. Dec.

1061, 1065 (BIA 1998) (en banc)). The new § 1101(a)(13) is

“a complete makeover of [§ 1101(a)(13)] . . . specifically

intended to supplant the subjective intent inquiry that was a

feature of the old law.” Id. at 879 (quoting Tineo, 350 F.3d at

20472 LEZAMA-GARCIA v. HOLDER
393). IIRIRA also replaced deportation and exclusion proceedings with more general “removal” proceedings. Hing

Sum, 602 F.3d at 1100. In short, “ ‘admission’ now determines whether a non-citizen is subject to grounds of deportability or inadmissibility within the context of a removal

proceeding.” Id.

Notably, IIRIRA replaced Fleuti’s subjective intent standard (for lawful permanent residents) with an objective 180-

day period of allowed absence from the United States, regardless of intent. See 8 U.S.C. § 1101(a)(13)(C)(ii). “The final

version of [§ 1101(a)(13)] . . . pays homage to Fleuti by presumptively treating all trips abroad lasting 180 days or fewer

as inconsequential to permanent resident status.” Tineo, 350

F.3d at 394. It “fully recognizes the increase in cross-border

travel and the notion that innocent, casual, and brief trips

abroad should not interrupt an alien’s permanent residency.”

Id. Although generally abrogated, “an aspect of Fleuti is preserved.” Id.

“Congress amended section [1101(a)(13)] of the [INA]

simply to eliminate that aspect of the ‘entry doctrine’ that permitted aliens who had entered without inspection to have

greater procedural and substantive rights in deportation proceedings than those who had presented themselves for inspection at a port of entry and had been placed in exclusion

proceedings.” In re Quilantan, 25 I. & N. Dec. 285, 291 (BIA

2010) (citations omitted). This intent is evident in the meaning of the term “lawful entry” in § 1101(a)(13)(A) (defining

“ ‘admission’ and ‘admitted’ [to] mean . . . the lawful entry

of the alien into the United States”). “Lawful entry” refers to

an entry “involving ‘inspection and admission by an immigration officer,’ as opposed to those ‘unlawful’ entries involving

‘actual and intentional evasion of inspection at the nearest

inspection point.’ ” Hing Sum, 602 F.3d at 1101 (quoting

Matter of Pierre, 14 I. & N. Dec. 467, 468 (1973)).

IIRIRA, then, was directed in part at aliens (like Lezama)

who had entered the United States without inspection. After

LEZAMA-GARCIA v. HOLDER 20473
IIRIRA, if such aliens depart and attempt to reenter, they will

be “arriving aliens” and will be “inadmissible.”

Here enters the importance of NACARA — for certain

aliens, NACARA essentially gave back some of what IIRIRA

took away.

2. Applicants for Adjustment of Status under NACARA

§ 202

Congress “enacted NACARA in 1997 to ameliorate some

of the harsher effects of IIRIRA for nationals of certain countries [— primarily Nicaragua and Cuba].” Masnauskas, 432

F.3d at 1070.

NACARA . . . was intended to favor aliens who had

taken unusual risks in escaping from oppressive governments or whose countries had been ravaged by

war. The enactment of NACARA was a rational diplomatic decision to encourage such aliens to remain

in the United States. Nicaraguan aliens were a particular concern of Congress because of United States’

involvement in the civil war in Nicaragua, the large

number of Nicaraguan asylum-seekers in the 1980s,

and a history of special programs for Nicaraguan

aliens under the Carter and Reagan administrations.

Id. at 1071 (citations omitted). As explained by one of its

sponsors,

[NACARA] incorporates an agreement . . . between

House and Senate negotiators to correct provisions

in last year’s immigration law [IIRIRA]. These provisions . . . would have had the effect of changing

the rules in the middle of the game for thousands of

Central Americans and others who came to the

United States because their lives and families had

20474 LEZAMA-GARCIA v. HOLDER
been torn apart by war and oppression and are seeking permanent residency here.

. . . . Nicaraguans who were in the United States

prior to January 1, 1995 will be permitted to adjust

to permanent residence — and get green cards — if

they have maintained a continuous presence here.

The same right will be extended to their Nicaraguan

spouses and children.

143 Cong. Rec. S12261 (daily ed. Nov. 9, 1997) (statement

of Sen. Abraham), available at 1997 WL 693186.9 Senators

explained that

The purpose of this Act is to ensure that nationals of

certain specified countries . . . are accorded a fair

and equitable opportunity to demonstrate that, under

the legal standards established by this Act, they

should be permitted to remain, and pursue permanent

resident status, in the United States.

In recognition of the hardship that those eligible

for relief suffered in fleeing their homelands . . . the

Congress directs the Department of Justice and the

Immigration and Naturalization Service to adjudicate

applications for relief under this Act expeditiously

and humanely.

143 Cong. Rec. S12266 (daily ed. Nov. 9, 1997) (Explanatory

Memorandum Regarding NACARA submitted by Senators

Mack, Graham, Abraham, Kennedy, and Durbin), available at

1997 WL 693186.

9The intent is also demonstrated by a parallel provision, NACARA

§ 203, which reinstated certain changes IIRIRA had made to suspension

of deportation qualifications that had an unfairly retroactive effect for

some aliens. See, e.g., Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1096

(9th Cir. 2005); Masnauskas, 432 F.3d at 1070. 

LEZAMA-GARCIA v. HOLDER 20475
[1] “NACARA grants similarly situated immigrants from

Cuba and Nicaragua the opportunity to become lawful permanent residents independent of the Attorney General’s favorable discretion.” Eli Coffino, Long Road to Residency: The

Legal History of Salvadoran & Guatemalan Immigration to

the United States with a Focus on NACARA, 14 Cardozo J.

Int’l & Comp. L. 177, 178 (2006) (emphasis added). “[Section 202] of NACARA is as close to a free pass for American

residence as the INS grants.” Id. at 192 (citing Patrick E.

Caldwell, NACARA: Minotaur or Midas?, 53 SMU L. Rev.

1559, 1573 (2000)).

[2] With this intent, Congress promulgated NACARA

§ 202. As summarized earlier, § 202(a) provides that aliens

who (1) applied before April 1, 2000, (2) had maintained a

“continuous physical presence” in the United States before

applying, and (3) were “otherwise admissible,” shall have

their status adjusted to a lawful permanent resident. Section

202(a) specifically excuses some statutory grounds of inadmissibility, stating that “in determining . . . admissibility the

grounds for inadmissibility specified in [8 U.S.C.

§§ 1182(a)(4), (5), (6)(A), (7)(A), and (9)(B)] shall not

apply.” One of these excused grounds is § 1182(a)(6)(A)10 —

including aliens (like Lezama) who had entered without

inspection. In effect, then, NACARA § 202 reinstated an

aspect of the pre-IIRIRA “entry doctrine” for eligible aliens.

[3] NACARA § 202 also partially codified another aspect

of the pre-IIRIRA “Fleuti doctrine.” Just as IIRIRA in 8

U.S.C. § 1101(a)(13)(C)(ii) “pays homage to Fleuti by presumptively treating all trips abroad lasting 180 days or fewer

as inconsequential to permanent resident status,” Tineo, 350

F.3d at 394, NACARA § 202 also “pays homage to Fleuti” by

10Section 1182(a)(6)(A)(i) provides: 

An alien present in the United States without being admitted or

paroled, or who arrives in the United States at any time or place

other than as designated by the Attorney General, is inadmissible.

20476 LEZAMA-GARCIA v. HOLDER
allowing an alien up to 180 days outside the country prior to

applying, while still having maintained the necessary “continuous physical presence” to qualify to seek relief. In this

regard, § 202(b) provides:

Aliens eligible for adjustment of status. —

(1) In general. — The benefits provided by subsection (a) [of this note] shall apply to any alien who is

a national of Nicaragua or Cuba and who has been

physically present in the United States for a continuous period, beginning not later than December 1,

1995, and ending not earlier than the date the application for adjustment under such subsection is filed,

except an alien shall not be considered to have failed

to maintain continuous physical presence by reason

of an absence, or absences, from the United States

for any periods in the aggregate not exceeding 180

days.

(Emphasis added.)

[4] And, as stated above, NACARA § 202(c) authorizes a

stay of any pending removal order:

(1) In general. — The Attorney General shall provide by regulation for an alien subject to a final order

of deportation or removal to seek a stay of such

order based on the filing of an application under subsection (a) [of this note].

(2) During certain proceedings. — Notwithstanding

any provision of the Immigration and Nationality

Act [8 U.S.C. § 1101 et seq.], the Attorney General

shall not order any alien to be removed from the

United States, if the alien is in exclusion, deportation, or removal proceedings under any provision of

such Act and has applied for adjustment of status

LEZAMA-GARCIA v. HOLDER 20477
under subsection (a) [of this note], except where the

Attorney General has rendered a final administrative

determination to deny the application.

That is, if an application is pending, the Attorney General11

“shall not order any alien to be removed.” NACARA

§ 202(c)(2).

With these principles established, we now examine whether

Lezama abandoned his NACARA § 202 application for

adjustment of status when he drove into Mexico.

B. Abandonment and 8 C.F.R. § 245.13(k)(1)

1. The IJ’s Reading Is Inconsistent with the 

Regulation’s Plain Language and Context

The IJ concluded that Lezama abandoned his application

“as of the moment” he departed the United States without

seeking prior permission in the form of advance parole. The

applicable regulation, 8 C.F.R. § 245.13(k)(1), provides in full:12

(k) Parole authorization for purposes of travel —

(1) Travel from and return to the United States while

the application for adjustment of status is pending. If

an applicant for benefits under section 202 of Pub.

11NACARA’s reference to the “Attorney General” now refers to the

Secretary of Homeland Security as well. See Homeland Security Act of

2002, Pub. L. No. 107-296, § 1517, 116 Stat. 2135, 2311 (codified at 6

U.S.C. § 557). See, e.g., Diouf v. Napolitano, 634 F.3d 1081, 1085 n.5 (9th

Cir. 2011) (“[W]e refer to the Attorney General rather than the Secretary

of Homeland Security to maintain conformity with the language of the

statutes themselves.”). 

12Section 245.13(k)(1) is the Department of Homeland Security regulation; it is identical to 8 C.F.R. § 1245.13(k)(1), which is the provision governing the Executive Office for Immigration Review. See, e.g., Bona v.

Gonzales, 425 F.3d 663, 665 n.1 (9th Cir. 2005). 

20478 LEZAMA-GARCIA v. HOLDER
L. 105-100 desires to travel outside, and return to,

the United States while the application for adjustment of status is pending, he or she must file a

request for advance parole authorization on an

Application for Travel Document (Form I-131), with

fee as set forth in § 103.7(b)(1) of this chapter and

in accordance with the instructions on the form. If

the alien is either in deportation or removal proceedings, or subject to a final order of deportation or

removal, the Form I-131 must be submitted to the

Assistant Commissioner for International Affairs;

otherwise the Form I-131 must be submitted to the

director of the Texas Service Center, who shall have

jurisdiction over such applications. Unless the applicant files an advance parole request prior to departing from the United States, and the Service approves

such request, his or her application for adjustment of

status under section 202 of Public Law 105-100 is

deemed to be abandoned as of the moment of his or

her departure. Parole may only be authorized pursuant to the authority contained in, and the standards

prescribed in, section 212(d)(5) of the Act [8 U.S.C.

§ 1182(d)(5) regarding parole into the United States

for humanitarian reasons].

Id. (emphases added).

In deeming Lezama’s application abandoned, the IJ relied

specifically on the emphasized third sentence of the regulation

(“Unless the applicant files an advance parole request prior to

departing from the United States . . . his or her application . . .

is deemed to be abandoned as of the moment of his or her

departure.”). The BIA’s per curiam order simply agreed with

the IJ on this point, with no further analysis.

[5] This reading, however, ignores the first sentence of the

regulation, and as a result fails to read the entire regulation in

LEZAMA-GARCIA v. HOLDER 20479
context.13 Section 245.13(k)(1) begins with a clear limitation:

“[i]f [a NACARA § 202 applicant] desires to travel outside,

and return to, the United States . . . .” (Emphasis added). Read

in context, the rest of the regulation is likewise limited to and

applies only if an applicant fails to obtain advance parole and

that applicant had “desired” to travel outside and return to the

United States. The regulation requires prior approval if an

applicant plans to travel outside the United States — but one

cannot gain prior approval for an accident.

[6] The regulation as a whole simply does not address the

situation where a NACARA § 202 applicant never “desired

to” (i.e., never “planned to” or “intended to” or “had a purpose to”) travel outside the United States. As a result, the consequence of failing to obtain advance parole (abandonment)

does not apply to an “undesired” or inadvertent departure.

Effectively, abandonment occurs only for a desired departure

absent advance parole.

[7] In their decisions, neither the IJ nor the BIA mentions

the conditional limiting language. The IJ relied exclusively on

the third sentence of the regulation without considering the

overriding limitation. But the regulation must be read as a

whole. By ignoring the “desired” requirement, the IJ necessarily misinterpreted the meaning of the regulation’s third sentence. Cf. Singh v. Holder, 649 F.3d 1161, 1167 (9th Cir.

2011) (en banc) (reasoning that the third clause of the statute

at issue was “linked by its language and context directly to”

the first clause). Thus, the BIA’s and IJ’s interpretation of

§ 245.13(k)(1) was “unreasonable” and does not “sensibly

13See Dada v. Mukasey, 554 U.S. 1, 16 (2008) (“In reading a statute we

must not look merely to a particular clause, but consider in connection

with it the whole statute.”) (internal quotation marks omitted); Kucana v.

Holder, 130 S. Ct. 827, 835 (2010) (reiterating that a term in an immigration statute “must draw its meaning from its context”) (quoting Ardestani

v. INS, 502 U.S. 129, 135 (1991)); Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)

(“[W]e construe language in its context and in light of the terms surrounding it.”). This rule of interpretation applies equally to regulations. 

20480 LEZAMA-GARCIA v. HOLDER
conform[ ] to the purpose and wording of the regulation[.]”

Lal, 255 F.3d at 1004. It is unreasonable to deem a NACARA

§ 202 application abandoned for failing to do something

(obtain advance parole) that an applicant could not have done

(because the departure was unplanned). Our reading — that

abandonment for lack of advance parole does not apply if

travel was not desired — is “compelled by the regulation’s

plain language.” Id.

Although the BIA may have provided “its own review of

the [regulation],” Joseph, 600 F.3d at 1239, we give its decision no deference under Auer. Its per curiam order was

decided under 8 C.F.R. § 1003.1(e) by a single-member. Such

a decision is not precedential. See Garcia-Quintero, 455 F.3d

at 1012-13 (“A case must be decided by a three-member panel

if it presents ‘[t]he need to establish a precedent construing

the meaning of laws, regulations, or procedures.’ ”) (citing 8

C.F.R. § 1003.1(e)(6)(ii)). Garcia-Quintero analyzed what

deference we give to such a single-member BIA decision

interpreting a statutory provision, and concluded such decisions are accorded only Skidmore deference in proportion to

their power to persuade. Id. at 1014-15. For a similar reason,

the BIA’s decision here is entitled to no deference under Auer

as an agency interpretation of a regulation. The nature of this

one-member, non-precedential, BIA order — one that does

not explain its reasoning — “does not reflect the agency’s fair

and considered judgment on the matter in question.” 519 U.S.

at 462. See Joseph v. Holder, 579 F.3d 827, 833-35 (7th Cir.

2009) (applying Auer, reasoning in part that an interpretation

in a single-member, non-precedential, BIA decision was

inconsistent with the plain language of a regulation).14

14The BIA appears to have also considered statutory provisions. It cited

to “section 245 of the Act, at Note 9,” which could refer to NACARA

itself or some other provision of 8 U.S.C. § 1255 regarding abandonment.

Further, 8 U.S.C. § 1101(a)(13) regarding “admission” is also at issue. To

the extent the BIA here was interpreting statutes, we also do not defer

because of the cursory nature of its unpublished, non-precedential, singleLEZAMA-GARCIA v. HOLDER 20481
We also owe the government’s interpretation no deference

under Chase Bank USA, 131 S. Ct. at 880-81 (indicating that

a court defers to an agency’s interpretation of its own regulation, even if only advanced in a legal brief, unless “plainly

erroneous or inconsistent with the regulation”) (quoting Auer,

519 U.S. at 461). The government, like the BIA and IJ below,

did not address the limiting language (“desired”) in

§ 245.13(k)(1). And its argument (like the IJ’s decision) —

that the third sentence in the regulation plainly deems any

departure without advance parole to be an abandonment —

improperly isolates the sentence untethered from its context.

It is therefore “plainly erroneous” and “inconsistent with the

regulation.” Auer, 519 U.S. at 461.

2. Our Reading Is Consistent With Other Provisions

Our reading limiting abandonment to “desired” departures

is bolstered by, and completely consistent with, other aspects

of the statute and its regulations.

When promulgating NACARA’s regulations, rule-makers

specifically addressed the possibility of travel outside the

United States while an application was pending. In so doing,

rule-makers did not state that any unapproved absence would

member order. See Garcia-Quintero, 455 F.3d at 1012. The BIA simply

stated that Lezama’s departure “effected the abandonment of his application,” citing the statute and 8 C.F.R. § 1245.13(k)(1). Indeed, the BIA

erroneously noted that Lezama “does not specifically contest the Immigration Judge’s denial of his motion to terminate proceedings,” when Lezama

had in fact argued he was not an “arriving alien.” See Edu, 624 F.3d at

1143 (reasoning that “[t]he weight accorded to an administrative judgment

in a particular case will depend upon [among other factors] the thoroughness evident in its consideration”). That is, we need not defer because the

BIA’s order has no “power to persuade.” See, e.g., Shin v. Holder, 607

F.3d 1213, 1219 (9th Cir. 2010) (“Because the BIA’s opinion is conclusory and lacks any meaningful analysis, we owe it no [Skidmore] deference[.]”). 

20482 LEZAMA-GARCIA v. HOLDER
automatically result in abandonment. The interim rules contain the following question-and-answer commentary:

Can an Applicant Travel Outside the United States

While the Application Is Pending?

Nothing in NACARA authorizes the Service to

allow an applicant to re-enter the United States without proper documents. If an applicant plans to leave

the United States to go to any other country, including Canada or Mexico, before a decision is made on

his or her NACARA adjustment application, the

applicant should contact the Service to request

advance authorization for parole. If an applicant

leaves the United States without such advance authorization, action on his or her NACARA adjustment

application may be terminated and the application

may be denied. An applicant may also experience

difficulty when returning to the United States if he

or she does not have such advance authorization.

Furthermore, any absence from the United States

without an advance parole authorization issued

prior to departure counts toward the 180-day aggregate time period that the applicant is allowed to be

outside the United States.

63 Fed. Reg. 27823 (May 21, 1998) (emphases added), available at 1998 WL 253314. The commentary speaks in terms

of a “planned” departure and only states that an application

“may be terminated” — not “will be terminated” — if an

applicant does not obtain advanced parole. More importantly,

an application survives a non-authorized departure, although

the non-authorized time counts towards the 180-day limit:

“any absence from the United States without an advance

parole authorization issued prior to departure counts toward

the 180-day aggregate time period that the applicant is

allowed to be outside the United States.” If an unauthorized

departure was intended to result in an automatic abandonment

LEZAMA-GARCIA v. HOLDER 20483
of a NACARA application, then such a departure could not

count towards the 180-day limit. There is no per se abandonment in the regulation.

Moreover, NACARA itself contemplates departures, and

allows up to 180 days outside the United States prior to applying without interrupting the “continuous physical presence” in

the country necessary to qualify for NACARA relief. See

NACARA § 202(b)(1). Thus, although there is no basis for

resurrecting Fleuti’s “innocent, casual, and brief” exception,

our reading is nevertheless consistent with Congress’ recognition that some departures from the country should have no

immigration consequences.

And indeed, § 202(b)(1)’s corresponding regulation (8

C.F.R. § 245.13(a)(2)) does not even limit the statutory 180

days of excused absences to the period before applying. Section 245.13(a)(2) states that a national of Nicaragua or Cuba

is eligible to apply for adjustment of status under NACARA

§ 202 if the alien

has been physically present in the United States for

a continuous period beginning not later than December 1, 1995, and ending not earlier [than] the date the

application for adjustment is granted, excluding . . .

[a]ny periods of absence from the United States not

exceeding 180 days in the aggregate[.]

(Emphasis added.) Section 245.13(a)(2) thus recognizes that

an alien should also not interrupt a “continuous physical presence” in the United States after applying, and while the application is pending. It includes within the 180-day statutory

period any absences up until the application is actually adjudicated. According to its rule-makers, this regulation clarifies

that “all absences between the last pre-December 2, 1995,

date on which the applicant commenced physical presence

and the date on which the application is approved count

toward the 180-day maximum.” 65 Fed. Reg. 15850 (Mar. 24,

20484 LEZAMA-GARCIA v. HOLDER
2000) (emphasis added). The regulation thus contemplates

departures while an application is pending that do not cause

abandonment of the application.

Last, our reading of § 245.13(k)(1) is also consistent with

Congress’ express intent to “encourage [eligible] aliens to

remain in the United States,” because of a “special diplomatic

concern” for Nicaraguans who arrived before December 1,

1995. Masnauskas, 432 F.3d at 1071. Our reading supports

NACARA’s purpose that “Nicaraguans who were in the

United States prior to January 1, 1995 will be permitted to

adjust to permanent residence — and get green cards — if

they have maintained a continuous presence here.” 143 Cong.

Rec. at S12261. Our reading helps “to ensure that nationals of

[covered countries] are accorded a fair and equitable opportunity to demonstrate that, under the legal standards established

by [NACARA], they should be permitted to remain, and pursue permanent resident status, in the United States.” 143

Cong. Rec. at S12266.

3. Other “Abandonment” Situations Are 

Distinguishable

The government, however, points to analogous situations in

immigration law where pending applications for relief are

abandoned upon departure from the United States, regardless

of intent. See Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838

(9th Cir. 2003) (upholding 8 C.F.R. § 1003.4, which deems a

departure from the United States of a person subject to deportation proceedings while an appeal challenging that deportation is pending to constitute an automatic withdrawal of the

appeal, and rejecting a Fleuti-type exception for “brief,

casual, and innocent” departures); Long v. Gonzales, 420 F.3d

516, 520-21 (5th Cir. 2005) (same). But see Madrigal v.

Holder, 572 F.3d 239, 244 (6th Cir. 2009) (holding that “forcible removal” does not render an appeal automatically withdrawn under 8 C.F.R. § 1003.4).

LEZAMA-GARCIA v. HOLDER 20485
But these situations are distinguishable — they did not

apply a regulation like § 245.13(k)(1), which limits abandonment to travel that is “desired.” See Aguilera-Ruiz, 348 F.3d

at 839 (concluding that “[u]nder 8 C.F.R. § 1003.4, any voluntary departure from the United States following entry of an

order of deportation will be deemed to withdraw a pending

appeal”). See also 8 C.F.R. § 1003.2(d) (deeming a pending

motion to reopen withdrawn upon “any” departure); and 8

C.F.R. § 245.2(a)(4)(ii) (“The departure from the United

States of an applicant who is under exclusion, deportation, or

removal proceedings shall be deemed an abandonment of the

[adjustment of status] application[.]”) (Emphasis added.)

Rule-makers could have chosen not to use the conditional

limiting phrase “if [an applicant] desires to travel” in

§ 245.13(k)(1). The fact that they did must be given some

meaning. Cf. Kucana, 130 S. Ct. at 838 (“[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”) (quoting Nken v. Holder,

556 U.S. ___, ___, 129 S. Ct. 1749, 1759 (2009)); RodriguezBarajas, 624 F.3d at 681 (vacating BIA decision that found

a voluntary departure effected a withdrawal of a pending

habeas petition, reasoning in part that “the presence of limiting language” in 8 C.F.R. § 1003.4 stood in contrast to broad

language “any departure” in § 1003.2(d)).

4. It Is Undisputed That Lezama’s Departure Was Not

“Desired”

The government contends that the IJ did not decide whether

an unintentional departure actually took place. It argues that,

if we “somehow read into the regulation that an unintentional

or mistaken departure does not constitute abandonment” then

we must remand pursuant to INS v. Ventura, 537 U.S. 12, 16-

17 (2002).

20486 LEZAMA-GARCIA v. HOLDER
In proceedings before the IJ, however, the government did

not dispute Lezama’s factual testimony (as set forth in his

translated declaration) regarding how he inadvertently drove

into Mexico. His testimony establishes that he attempted to

avoid crossing the border, but was directed by a police officer

to continue south, only to be caught in the flow of traffic and

“funneled” into Mexico and to be then excluded when he

attempted to reenter. The government accepted those facts

before the IJ, and instead argued that Lezama’s intent was

irrelevant to the abandonment of his NACARA application.

[8] It is well established that “if a party fails to raise an

objection to an issue before judgment, he or she waives the

right to challenge the issue on appeal.” Slaven v. Am. Trading

Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998). Because

the government failed to challenge the factual circumstances

of Lezama’s departure, remand is not warranted. See, e.g.,

Mashiri v. Ashcroft, 383 F.3d 1112, 1123 n.7 (9th Cir. 2004)

(concluding that remand was unnecessary where government

failed to submit evidence challenging factual question);

Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11 (9th Cir.

2004) (declining to remand where INS failed to present evidence of changed country conditions and did not argue the

point before the IJ or the BIA). It is therefore undisputed that

Lezama did not “desire” to travel outside the United States.

Given our analysis of the plain meaning of the regulation, we

hold that Lezama did not abandon his NACARA § 202 application to adjust status.15 The application remains pending.

15The dissent questions the “legitimacy” of this holding because it “relies on an argument and analysis that has never been advanced by the Petitioner.” Dissent at 20492-93. But Lezama argues — as he did before the

IJ and the BIA — that “[he], a § 202 of NACARA beneficiary, cannot be

deemed to have abandoned his § 245 Application [to adjust status] pursuant to the terms of 8 C.F.R. § 1245.13(k)(1) since he did not intentionally

or voluntarily depart the United States.” Pet’r’s Opening Br. at 12. He

contends he “did not leave the country intentionally or voluntarily; accordingly, pursuant to the reasonable connotation of the word ‘departed’ and

as a ‘necessary implication’ that his acts must be intentional and volunLEZAMA-GARCIA v. HOLDER 20487
C. Inconsistency with NACARA — Lezama Cannot Be

Removed

[9] Having established that Lezama’s NACARA § 202

application was not abandoned, it follows that the IJ should

not have ordered him removed. NACARA § 202(c)(2) unambiguously provides that

[n]otwithstanding any provision of the Immigration

and Nationality Act, the Attorney General shall not

order any alien to be removed from the United

States, if the alien is in exclusion, deportation, or

removal proceedings under any provision of such

Act and has applied for adjustment of status under

subsection (a) [of this note], except where the Attortary, he cannot be deemed to have left the United States pursuant to 8

C.F.R. § 1245.13(k)(1)[.]” Id. at 13. Thus, Lezama surely “specifically and

distinctly” raises and argues the issue we address here — the meaning and

application of the language of 8 C.F.R. § 245.13(k)(1) as it relates to

NACARA § 202. See Independent Towers of Wash. v. Wash., 350 F.3d

925, 929 (9th Cir. 2003) (“we ‘review only issues which are argued specifically and distinctly in a party’s opening brief.’ ”) (quoting Greenwood v.

Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)); Mamouzian v.

Ashcroft, 390 F.3d 1129, 1136 (9th Cir. 2004) (“[Petitioner’s] brief may

not be perfectly written, but it is not difficult to discern the point she is

trying to make.”). 

While Lezama did not argue the importance of the first clause of the

regulation, he squarely presented us with examining the whole regulation.

That he did not examine the regulation as precisely as we do, or that he

did not research the background of the regulation, does not raise any question as to the legitimacy of our holding. See Kamen v. Kemper Fin. Servs.,

Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before

the court, the court is not limited to the particular legal theories advanced

by the parties, but rather retains the independent power to identify and

apply the proper construction of governing law.”); Aleman v. Glickman,

217 F.3d 1191, 1196 n.3 (9th Cir. 2000) (same). Indeed, “[o]nce the issue

is raised, a court has an obligation to determine what the law is which will

govern the case at hand.” Eldred v. Ashcroft, 255 F.3d 849, 853 (D.C. Cir.

2001) (Sentelle, J., dissenting from the denial of rehearing en banc). 

20488 LEZAMA-GARCIA v. HOLDER
ney General has rendered a final administrative

determination to deny the application.

And, as noted above, rule-makers recognized that under

§ 202(c)(2), an applicant who is in removal proceedings may

not be ordered removed “unless and until the application for

adjustment is denied.” 65 Fed. Reg. at 15852. “The alien does

not need to file any request, motion, or other form beyond the

application for adjustment itself in order to benefit from this

automatic provision.” Id.

[10] In short, the Attorney General “shall not order any

alien to be removed” until he has decided the application. By

ordering Lezama removed under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) — and given that his NACARA § 202

application is still pending — the IJ violated NACARA. The

IJ’s order of removal is therefore “manifestly contrary to” the

statute. Mead, 533 U.S. at 227 (citing Chevron, 467 U.S. at

842-45).

D. Even If Lezama Was an “Inadmissible” “Arriving

Alien,” He Was Nevertheless “Eligible to Seek

Adjustment of Status” under NACARA

The IJ determined that when Lezama left the United States

on March 25, 2004, he had executed his outstanding 1997

removal order — he “self deported” — and was therefore an

inadmissible “arriving alien” subject to removal when he

attempted to reenter the country. We now address what effect

our conclusion that Lezama has not abandoned his NACARA

§ 202 application has on that determination.

Lezama’s exact status presents a “chicken or egg” conundrum. Even if he did not abandon his NACARA application,

he did exit the country. That is, the question still remains

whether Lezama “self-deported.” Ultimately, however, we

need not resolve Lezama’s exact status (whether an “arriving

alien” or not) because even if he was an “arriving alien” and

LEZAMA-GARCIA v. HOLDER 20489
was “inadmissible,” he remains eligible to adjust his status

under NACARA.16

Admissibility is determined under 8 U.S.C. § 1182. Section

1182(a), defining “classes of aliens ineligible for visas or

admission,” states that “[e]xcept as otherwise provided in this

chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be

admitted to the United States.” But § 1182(a) includes several

grounds of inadmissibility that NACARA § 202(a)(1)(B) specifically excuses — including aliens (1) who were “present

without admission or parole,” i.e., that had previously entered

without inspection, as set forth in § 1182(a)(6)(a), or (2) who

lacked valid travel documents when “applying for admission,”

as set forth in § 1182(a)(7)(A)(i).

The opening clause (“except as otherwise provided”) is a

“savings clause,” recognizing that Congress reserved the right

to specifically allow admission of otherwise inadmissible

aliens. NACARA is such legislation. See Renteria-Ledesma v.

Holder, 615 F.3d 903, 907-08 (8th Cir. 2010) (citing

NACARA as a specific example of where Congress has “otherwise provided” to extend eligibility for adjustment of status

to inadmissible aliens, as recognized in In re Briones, 24 I. &

N. Dec. 355 (BIA 2007)); Padilla-Caldera v. Holder, 637

F.3d 1140, 1151 (10th Cir. 2011) (same); accord GarfiasRodriguez v. Holder, 649 F.3d 942, 949 (9th Cir. 2011) (fol16An alien ordinarily affects his or her own removal by departing the

country while an order of deportation or removal is pending. See, e.g.,

Mansour v. Gonzales, 470 F.3d 1194, 1198 (6th Cir. 2006) (“It is well settled that when an alien departs the United States while under a final order

of deportation, he or she executes that order pursuant to the law.”) (citations omitted). “Deportation orders are self-executing orders, not dependent upon judicial enforcement.” Stone v. INS, 514 U.S. 386, 398 (1995).

Here, however, Lezama’s pending 1997 removal order had been stayed as

provided by NACARA. Given the stay, his 1997 order of removal was at

least in some sense not “pending.” We need not resolve, however, whether

departing under that status changes the ordinary result of “self-removal.”

20490 LEZAMA-GARCIA v. HOLDER
lowing Briones, and recognizing that Congress may extend

eligibility for adjustment of status to inadmissible aliens if

done so unambiguously).

[11] That is, even where an alien is deemed to be an “arriving alien” and “inadmissible,” the alien may still be eligible

to adjust status. See Bona v. Gonzales, 425 F.3d 663, 669 (9th

Cir. 2005) (invalidating a regulation that rendered an “arriving alien” placed in removal proceedings ineligible for adjustment of status, where Congress had specifically allowed the

aliens to adjust status if they met other qualifications); Succar

v. Ashcroft, 394 F.3d 8, 26-29 (1st Cir. 2005) (same). That an

alien has departed is not necessarily fatal to the consideration

of a pending application to adjust status. See Marin-Rodriguez

v. Holder, 612 F.3d 591, 593-94 (7th Cir. 2010) (holding that

an alien’s departure, which constituted a “withdrawal” of a

motion, does not deprive the BIA of jurisdiction to reconsider

that decision — reconsideration “does not depend on an

alien’s presence in the country”); Coyt v. Holder, 593 F.3d

902, 906 (9th Cir. 2010) (holding the same, reasoning that “in

passing IIRIRA, Congress anticipated that petitioners would

be able to pursue relief after departing from the United

States.”). Indeed, the Supreme Court has stated that “[a]liens

who are removed may continue to pursue their petitions for

review, and those who prevail can be afforded effective relief

by facilitation of their return, along with restoration of the

immigration status they had upon removal.” Nken, 129 S. Ct.

at 1761.

[12] Accordingly, even assuming Lezama was an “arriving

alien” who was “inadmissible” under either 8 U.S.C.

§ 1182(a)(6)(A) or § 1182(a)(7)(A)(i), he remains eligible to

apply for adjustment of status under NACARA § 202.

IV. CONCLUSION

This case is a prime example that “[t]he maze of immigration statutes and amendments is notoriously complicated and

LEZAMA-GARCIA v. HOLDER 20491
has been described as ‘second only to the Internal Revenue

Code in complexity.’ ” Singh v. Gonzales, 499 F.3d 969, 980

(9th Cir. 2007) (citation omitted). “Nonetheless, we assume

that Congress is familiar with the intricacies of the overlapping laws and that it meant what it said,” id., when it promulgated NACARA.

[13] Because Lezama’s departure was not “desired,” his

NACARA § 202 application was not abandoned under

§ 245.13(k)(1). His application remains pending. Under

NACARA § 202(c)(2), while his application remains pending,

he is not removable. And even if his departure rendered him

an “arriving alien,” he remains eligible for adjustment of status. Accordingly, we grant the petition and remand to allow

the government to rule on the pending application to adjust

status under NACARA § 202.

Petition GRANTED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from the majority opinion for the following four reasons, which I discuss in greater detail below:

1. The majority opinion relies on an argument and

analysis that has never been advanced by the

Petitioner. 

2. The majority opinion gives absolutely no deference to the agency’s interpretation of its regulation.

3. The majority opinion relies on prefatory language in the regulation and ignores the substance of the regulation.

20492 LEZAMA-GARCIA v. HOLDER
4. The majority opinion usurps the agency’s

authority by granting the petition without giving

the agency the opportunity to apply the majority’s novel interpretation of the regulation.

Our precedent has consistently reinforced the premise that

we do not address issues that are not raised in a petitioner’s

opening brief. See Fence Creek Cattle Co. v. USFS, 602 F.3d

1125, 1134 n.6 (9th Cir. 2010); see also ONDA v. Locke, 572

F.3d 610, 614 n.3 (9th Cir. 2009). In his brief to this court, the

petitioner argued in two and one-half pages that he “did not

leave the country intentionally or voluntarily.” Petitioner’s

Opening Brief, pp. 11-13. He essentially sought to equate the

circumstances of his departure to a forced departure. See id.

Never once did the petitioner cite to the prefatory language of

the regulation that has been seized upon by the majority to

make an argument that the petitioner never made. See id. The

majority’s stark departure from our precedent seriously calls

into question the legitimacy of the majority’s holding.

The majority’s departure from our precedent is compounded by the fact that the opinion gives absolutely no deference to the agency’s interpretation of its regulation. The

majority opinion dutifully acknowledges our obligation to

defer to the agency’s interpretation of its regulation, including

those interpretations articulated in litigation briefs. See Majority Opinion, p. 20468. The majority opinion even concedes

that deference is required “unless an alternative reading is

compelled.” Id. at p. 20468 (citation omitted) (emphasis

added). Yet, the majority opinion says one thing and does

another.

As the majority opinion details, the Immigration Judge (IJ)

relied upon the language of 8 C.F.R. § 245.13(k)(1), which

provides in pertinent part that “[u]nless the applicant files an

advance parole request prior to departing from the United

States, and the Service approves such request, his or her application for adjustment of status . . . is deemed to be abandoned

LEZAMA-GARCIA v. HOLDER 20493
as of the moment of his or her departure . . . .” The majority

opinion also recognizes that the Board of Immigration

Appeals adopted the IJ’s reliance on the regulation. See

Majority Opinion, p. 20479. This same analysis is reflected in

the brief filed on behalf of the agency. See Brief for Respondent, pp. 24-30.

The IJ, BIA and Department of Justice all relied on the

seismic shift reflected in Congress’s enactment of the Illegal

Immigration Reform and Immigrant Responsibility Act

(IIRIRA). Prior to the enactment of IIRIRA, continued eligibility for adjustment of status often depended on whether the

alien intentionally departed the United States. See 8 U.S.C.

§ 1101(a)(13) (repealed 1996) (excluding from the definition

of “entry” a return to the United States if the prior departure

“was not intended” or “voluntary”). This statutory provision

spawned a litany of cases addressing whether a particular

departure was “intended” or “voluntary.” See, e.g., Rosenberg

v. Fleuti, 374 U.S. 449, 452-53 (1963) (describing the judicial

evolution of the definition of “entry”). However, following

the enactment of IIRIRA and the repeal of § 1101(a)(13),

intent of the departing alien became irrelevant. See, e.g.,

Camins v. Gonazles, 500 F.3d 872, 878-79 (9th Cir. 2007)

(recognizing that the changes in IIRIRA “were consistent with

a complete makeover of § [1101] (13) specifically intended to

supplant the subjective intent inquiry that was a feature of the

old law . . . .”) (quoting Tineo v. Ashcroft, 350 F.3d 382, 392-

93 (3d Cir. 2003).

In Camins, we also deferred to an en banc decision of the

BIA that specifically interpreted IIRIRA as abrogating the

intent inquiry that was central to the pre-IIRIRA determination of entry. See id. at 879-80 (deferring to the BIA’s interpretation of IIRIRA as explicated in Matter of ColladoMunoz, 21 I&N Dec. 1061, 1064-65 (BIA 1998) (en banc)).

The majority completely ignores the prior deference we

have given to the BIA’s holding that the intent of the depart20494 LEZAMA-GARCIA v. HOLDER
ing alien is not relevant post-IIRIRA. Instead, the majority

opinion seizes upon prefatory language in IIRIRA that has

never been interpreted by the BIA in conjunction with a petitioner’s admissibility. See Majority Opinion, pp. 20480-81

(emphasizing the first sentence of § 245.13(k)(1) and focusing

on whether the petitioner “desired” to depart the United

States). The majority’s focus returns to the “intent” analysis

that was eliminated by IIRIRA, although purporting to base

its analysis on the “context” of the statutory scheme. See

Majority Opinion, p. 20480. However, the statutory context

points in the other direction. See Camins, 500 F.3d at 878-79

(explaining that the purpose of IIRIRA was to eliminate any

examination of the subjective intent of the departing alien).

The first sentence of § 245.13(k)(1) provides: “If an applicant for benefits under section 202 of Pub. L. 105-100 desires

to travel outside, and return to, the United States while the

application for adjustment of status is pending, he or she must

file a request for advance parole authorization . . .” Grammatically, it is apparent that the “desires to travel” clause is merely

an introduction to the substantive portion of the regulation—

the requirement of obtaining advance parole prior to departing

the country. Indeed, although the parole requirement is

explained in greater detail in the balance of the subsection, no

further mention is made of the “desires to travel” language,

reinforcing its introductory function. In addition, we have

cautioned against reliance on introductory language when

engaging in statutory interpretation. See United States v. Ertsgaard, 222 F.3d 615, 617-18 (9th Cir. 2000). Our sister circuits agree. See United States v. Studfin, 240 F.3d 415, 421

n.5 (4th Cir. 2001); see also Davric Maine Corp. v. USPS,

238 F.3d 58, 62 (1st Cir. 2001) (eschewing reliance on introductory language when the balance of the provision “makes

clear that this reading is not tenable . . . .”). The majority

opinion’s inappropriate reliance on introductory language to

the exclusion of the substantive provisions, lack of deference

to agency interpretation and conflict with IIRIRA’s deliberate

removal of the intent requirements prevent my joinder.

LEZAMA-GARCIA v. HOLDER 20495
Finally, even if the majority opinion’s holding were correct,

it is nevertheless inappropriate to apply this novel interpretation of the regulation without first giving the BIA the opportunity to consider this case in view of the new interpretation of

the regulation. See Pannu v. Holder, 639 F.3d 1225, 1228 (9th

Cir. 2011) (remanding for the BIA to apply intervening legal

interpretations).

Because the majority departs from our precedent, misinterprets the governing regulation, gives no deference to the

agency, and refuses to remand, I respectfully dissent. 

20496 LEZAMA-GARCIA v. HOLDER