FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO GARCIA-QUINTERO, 

Petitioner, No. 03-73930

v. Agency No.  A70-743-609 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 9, 2006—Pasadena, California

Filed July 24, 2006

Before: Michael Daly Hawkins, Susan P. Graber, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;

Partial Concurrence and Partial Dissent by Judge Graber

8231
COUNSEL

Gary Finn, Indio, California, for the petitioner-appellant. 

Peter D. Keisler, Linda S. Wendtland, and Shelley R. Goad,

United States Department of Justice, Civil Division, Office of

Immigration Litigation, Washington, D.C., for the

respondent-appellee. 

OPINION

PAEZ, Circuit Judge: 

Petitioner Pedro Garcia-Quintero petitions for review of the

Board of Immigration Appeals’s (“BIA” or “Board”) order

that found him removable for alien smuggling, and ineligible

for cancellation of removal due to his failure to accrue seven

years of continuous residence in the United States after being

“admitted in any status.” At the removal hearing, GarciaQuintero’s counsel attempted to assert the Fifth Amendment’s

right against self-incrimination on behalf of Garcia-Quintero.

The immigration judge (“IJ”), however, required GarciaQuintero to assert his Fifth Amendment right himself, but

allowed his attorney to advise him about when to exercise this

right. After invoking the Fifth Amendment several times,

Garcia-Quintero admitted that he tried to help his goddaughter

unlawfully enter the United States. On the basis of this testimony, the IJ ordered Garcia-Quintero removed for having

engaged in alien smuggling. 

Garcia-Quintero appealed the IJ’s ruling to the BIA. In

addition to challenging the IJ’s procedure for invoking the

Fifth Amendment, Garcia-Quintero moved to remand his case

so the IJ could consider his application for cancellation of

removal. In an unpublished order, the BIA rejected his appeal,

and also denied his motion because it determined that he

GARCIA-QUINTERO v. GONZALES 8235
failed to satisfy the seven-year continuous residence requirement for cancellation of removal. In its ruling, the BIA concluded that Garcia-Quintero’s status as a beneficiary of the

Family Unity Program (“FUP”) did not render him “admitted

in any status” for the purposes of cancellation of removal. 

The BIA’s decision denying the motion to remand involves

an interpretation of the interplay between the FUP and the

cancellation of removal statute, 8 U.S.C. § 1229b. As a preliminary matter, we hold that the BIA’s unpublished nonprecedential decision does not merit Chevron deference. The

decision, however, is eligible for some deference under Skidmore. As for the merits of Garcia-Quintero’s claim for cancellation of removal, he raises an issue of first impression in this

circuit as well as in most of our sister circuits1—whether his

acceptance into the Family Unity Program renders him “admitted in any status” for the purposes of cancellation of

removal. We hold that it does, and therefore determine that

Garcia-Quintero is eligible for cancellation of removal. 

Finally, we examine the merits of Garcia-Quintero’s claim

that the IJ violated his Fifth Amendment rights when the IJ

required him to personally invoke his right against selfincrimination, and therefore the removal proceeding should

have been terminated. We conclude that on the record here,

where the IJ allowed Garcia-Quintero’s counsel to advise him

when to invoke the privilege, and where Garcia-Quintero had

successfully done so in response to several questions, the IJ

did not violate his Fifth Amendment rights, and thus the

removal proceeding was proper. We therefore grant the petition in part and remand, and deny in part. 

1The Fifth Circuit has addressed this issue in an unpublished opinion.

See Diaz v. Ashcroft, 108 Fed.Appx. 972 (5th Cir 2004) (per curiam). 

8236 GARCIA-QUINTERO v. GONZALES
I. Background

Garcia-Quintero, a citizen of Mexico, entered the United

States unlawfully in 1986, and has resided here for the last

twenty years. He is married to a lawful permanent resident

(“LPR”), and has four LPR children and several United States

citizen grandchildren. He has no criminal record. In 1993,

Garcia-Quintero was accepted into the FUP. 

The Family Unity Program was created to implement certain provisions of the Immigration Act of 1990, Pub. L. No.

101-649, § 301, 101 Stat. 4978 (“IMMACT 90”), which is set

out as a note in 8 U.S.C. § 1255a. The regulations governing

the FUP are contained in 8 C.F.R. § 236. The FUP permits

qualified alien spouses or unmarried children of legalized

aliens, who entered the United States before 1988 and have

continuously resided in the United States since that time, to

apply for the benefits of the program, which include protection from deportation and authorization to work in the United

States.2

As the name implies, the FUP is designed to help families

stay together while the beneficiaries adjust to LPR status.

FUP beneficiaries are granted a two-year period of protection

from deportation, which the regulation terms “voluntary

departure.” 8 C.F.R. § 236.15(c). An FUP beneficiary may

2Section 301(a) provides that: 

[A]n alien who is an eligible immigrant (as defined in subsection

(b)(1)) as of May 5, 1988, who has entered the United States

before such date, who resided in the United States on such date,

and who is not lawfully admitted for permanent residence, the

alien— (1) may not be deported or otherwise required to depart

from the United States . . . and (2) shall be granted authorization

to engage in employment in the United States and be provided an

“employment authorized” endorsement or other appropriate work

permit. 

Pub. L. No. 101-649, § 301 (2006). 

GARCIA-QUINTERO v. GONZALES 8237
apply to extend this grant of voluntary departure so long as he

remains eligible for the program. 8 C.F.R. § 236.15(e). An

FUP beneficiary may also apply to travel outside the United

States. 8 C.F.R. § 236.16. Upon return from authorized travel,

an FUP beneficiary, provided he remains admissible, is “admitted in the same immigration status as the alien had at the

time of departure, and shall be provided the remainder of the

voluntary departure period previously granted under the Family Unity Program.” Id.

Garcia-Quintero extended his status as an FUP beneficiary

in 1995, and became an LPR in 1998. In June 2001, GarciaQuintero received a Notice to Appear in Removal Proceedings, which charged him with being removable as an alien

smuggler because he “knowingly, induced, assisted, abetted,

or aided [another] alien to enter or to try to enter the United

States in violation of [§ 212(a)(6)(E)(i) of the Immigration

and Nationality Act (‘INA’)].” 

At the removal hearing, counsel for the Immigration and

Naturalization Service (“INS”)3 called Garcia-Quintero, its

only witness, to testify. Before the direct examination began,

Garcia-Quintero’s attorney informed the IJ that he had

advised his client “to claim the benefit of his Fifth Amendment right not to incriminate himself . . . if he is asked to testify as to his role in any alien smuggling.” The IJ allowed the

attorney to confer with and advise Garcia-Quintero, but

required Garcia-Quintero to assert his Fifth Amendment right

himself. Through an interpreter, Garcia-Quintero answered

questions regarding his background, but then invoked his

Fifth Amendment right when the Government asked him

whether he had traveled to Mexico in June 2001, and whether

he had been charged with any criminal violations that year. 

3On March 1, 2003, the INS was abolished, and its functions were transferred to the newly created Department of Homeland Security. See

Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003). Because

the INS existed at the time of Garcia-Quintero’s hearing, we refer to the

INS, or “Government,” in this opinion. 

8238 GARCIA-QUINTERO v. GONZALES
After invoking the Fifth Amendment in response to these

questions, Garcia-Quintero answered the Government’s questions concerning the June incident. He testified that an immigration officer detained him and his goddaughter at the port

of entry in Calexico because he tried to help her cross the border into the United States by presenting false documents to

the immigration inspector. When the Government completed

its examination, Garcia-Quintero’s attorney declined to ask

him any questions, but stated that it was unfair that he was not

permitted to assert the Fifth Amendment on behalf of his client. The attorney, however, also stated that he could not point

to anything to show that Garcia-Quintero did not understand

that he was incriminating himself by testifying about the June

incident. Based upon Garcia-Quintero’s testimony, the IJ

determined that he knowingly participated in alien smuggling,

and was therefore subject to removal. 

Garcia-Quintero appealed the IJ’s decision to the BIA,

arguing that because his counsel was not allowed to assert the

Fifth Amendment privilege for him, the IJ forced GarciaQuintero to incriminate himself in violation of the Fifth

Amendment. Moreover, because his testimony was the only

evidence the Government presented, Garcia-Quintero argued

that his removal hearing should have been terminated given

the Fifth Amendment violation. He also requested that his

appeal be reviewed by a three-member panel of the BIA. 

While the appeal was pending, Garcia-Quintero filed a

motion to remand to the immigration court so that the IJ could

consider his application for cancellation of removal pursuant

to 8 U.S.C. § 1229b.4 Garcia-Quintero argued that he was eli4Cancellation of removal is available, at the Attorney General’s discretion, for an LPR who is inadmissible or deportable if he: 

(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 

GARCIA-QUINTERO v. GONZALES 8239
gible for cancellation of removal because, as a consequence

of his 1993 acceptance into the FUP, he was “admitted in any

status,” and therefore he satisfied the residence requirement

by having resided continuously in the United States for seven

years. Along with his motion, Garcia-Quintero submitted a

declaration in which he remorsefully admitted to the conduct

underlying the charge of alien smuggling. 

In a one-member unpublished order, the BIA dismissed

Garcia-Quintero’s appeal and denied his motion to remand.

The BIA determined that the IJ did not err in requiring

Garcia-Quintero to invoke personally his Fifth Amendment

right against self-incrimination, on a question-by-question

basis, and thus his testimony was properly considered. The

BIA further held that Garcia-Quintero failed to establish his

prima facie eligibility for cancellation of removal. Because he

became an LPR in 1998 and his residency ended in 2001,

when he received the Notice to Appear, the BIA concluded

that Garcia-Quintero had not resided continuously in the

United States for seven years after having been “admitted in

any status.” In so holding, the BIA rejected Garcia-Quintero’s

argument that he was first admitted when he was accepted

into the FUP in 1993. Garcia-Quintero timely petitioned for

review of the BIA’s decision. 

II. Discussion

A. Judicial Review of the BIA’s Decision 

Standard of Review

Where, as here, the BIA reviews de novo the IJ’s decision,

our review is limited to the decision of the BIA. Hernandez

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

18 U.S.C. § 1229b(a) (2006). It is uncontested that Garcia-Quintero meets

the first and third requirements; rather, the focus of his motion to remand,

and this appeal, was the second prong. 

8240 GARCIA-QUINTERO v. GONZALES
v. Ashcroft, 345 F.3d 824, 832 (9th Cir. 2003). We review for

abuse of discretion the BIA’s denial of a motion to remand.

Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).

However, 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.

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004), cert.

denied, 543 U.S. 1052 (2005). 

Chevron Deference

[1] As previously noted, in denying Garcia-Quintero’s

motion to remand, the BIA determined that the FUP beneficiary status does not render one “admitted in any status” for

the purposes of cancellation of removal. Thus, the initial

question presented is whether we should accord the BIA’s

decision in this case the deferential review prescribed by the

Supreme Court in Chevron U.S.A., Inc. v. Natural Resources

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

In Chevron, the Supreme Court established a two-pronged

framework for judicial review of administrative agency interpretations of the statutes and regulations that it administers.

467 U.S. at 842-43; Wilderness Soc’y v. U.S. Fish & Wildlife

Serv., 353 F.3d 1051, 1059 (9th Cir. 2003) (en banc). If congressional intent is clear, both the court and the agency must

“give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 843. If, however, Congress has

not directly addressed the exact issue in question, a reviewing

court must defer to the agency’s construction of the statute so

long as it is reasonable. Id. In other words, unless an agency’s

statutory interpretation is “arbitrary, capricious, or manifestly

contrary to the statute,” id. at 844, the agency is accorded

Chevron deference, and the court must adopt the agency’s

view. 

[2] “Chevron deference, however, does not apply to all statutory interpretations issued by agencies.” Miranda Alvarado

GARCIA-QUINTERO v. GONZALES 8241
v. Gonzales, 449 F.3d 915, 921 (9th Cir. 2006). In United

States v. Mead Corp., 533 U.S. 218, 226-27 (2001), the

Supreme Court elucidated the scope of Chevron, holding that

Chevron deference applies only “when it appears that Congress delegated authority to the agency generally to make

rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of

that authority.” (emphasis added). Mead thus placed crucial

“limits [on] Chevron deference owed to administrative practice in applying a statute,” clarifying that agency interpretations promulgated in a non-precedential manner are “beyond

the Chevron pale.” Id. at 226, 234; see also Hall v. EPA, 273

F.3d 1146, 1156 (9th Cir. 2001) (“Interpretations of the Act

set forth in such non-precedential documents are not entitled

to Chevron deference.”). 

It is well-established that Congress delegated to the BIA

the authority to promulgate rules, on behalf of the Attorney

General, that carry the force of law “through a process of

case-by-case adjudication.” INS v. Aguirre-Aguirre, 526 U.S.

415, 425 (1999) (internal quotation marks omitted) (holding

that Chevron deference applies to the BIA based on the statutory allocation of power laid out by Congress in the INA); see

also 8 C.F.R. § 1003.1(d)(1). Thus, the focus of our inquiry

in this case is on the latter part of Mead’s limitation on

Chevron—whether the BIA’s decision in this case “was promulgated in the exercise of that authority,” Mead, 533 U.S. at

227, i.e., whether the BIA’s decision had a “lawmaking pretense” that binds third parties, Miranda Alvarado, 449 F.3d at

922 (internal quotation marks omitted). As discussed below,

because the BIA’s decision was an unpublished disposition,

issued by a single member of the BIA, which does not bind

third parties, we conclude that it does not carry the force of

law. 

[3] In light of Mead, the “essential factor” in determining

whether an agency action warrants Chevron deference is its

precedential value. Miranda Alvarado, 449 F.3d at 922; see

8242 GARCIA-QUINTERO v. GONZALES
also High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 648

(9th Cir. 2004) (refusing to accord Chevron deference when

the agency was “not acting in a way that would have precedential value for subsequent parties”). Despite GarciaQuintero’s request that his appeal be reviewed by a threemember panel of the BIA, his appeal and motion were

reviewed by a single member of the BIA, on behalf of the

BIA, pursuant to 8 C.F.R. § 1003.1(e)(5). Under 8 C.F.R.

§ 1003.1(e)(5), a single board member is charged with the

task of deciding an appeal and issuing a brief order, unless the

member determines that an opinion is necessary and therefore

designates the case for decision by a three-member panel

under § 1003.1(e)(6). A case must be decided by a threemember panel if it presents “[t]he need to establish a precedent construing the meaning of laws, regulations, or procedures.” 8 C.F.R. § 1003.1(e)(6)(ii). The BIA’s Practice

Manual reiterates this requirement that three-member panels

decide precedential cases. See BIA Prac. Man., Ch. 1.3(a)(i)

(rev. 6/15/04) (“[A] single Board Member decides cases

unless the case falls into one of six categories that require a

decision by a panel of three Board Members [such as] the

need to establish a precedent construing the meaning of laws,

regulations or procedures.”) (emphases added), available at

http://www.usdoj.gov/eoir/bia/qapracmanual/apptmtn4.htm.

Moreover, only “selected decisions of the Board rendered by

a three-member panel or by the Board en banc may be designated to serve as precedents.” 8 C.F.R. § 1003.1(g). Because

the BIA decision in this case does not fall into either category,

it is non-precedential. 

[4] The unpublished designation of the decision also makes

it clear that it was not issued pursuant to the BIA’s authority

to make rules that carry the force of law. See In re GarciaQuintero, 2003 WL 23216738 (B.I.A. Order Sept. 23, 2003)

(stating at the top of the decision “**THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED**”).

Again, according to the Board’s own internal policies,

“[u]npublished decisions are binding on the parties to the

GARCIA-QUINTERO v. GONZALES 8243
decision but are not considered precedent for unrelated

cases.” BIA Prac. Man., Ch. 1.4(d)(ii) (rev. 6/15/04). Because

unpublished decisions “lack precedential value,” this court,

and other circuits, have declined to give them deferential

treatment under Chevron. Chan v. Reno, 113 F.3d 1068, 1073

(9th Cir. 1997) (refusing to defer to an unpublished disposition that, “by the INS’s own regulations . . . carr[ies] no precedential weight”); see also Cruz v. Attorney Gen. of U.S.,

___ F.3d ___, 2006 WL 1687393, at *8 (3d Cir. 2006) (recognizing that unpublished BIA decisions are not designated as

precedential); Ajdin v. Bureau of Citizenship & Immigration

Servs., 437 F.3d 261, 264-65 (2d Cir. 2006) (per curiam)

(“[U]npublished opinions of the BIA have no precedential

value.”); Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005)

(“[A]n unpublished opinion [issued by the Attorney General]

. . . has no precedential force.”); Hernandez, 345 F.3d at 839

n.13 (refusing to give Chevron deference to an unpublished

BIA decision because it “was not designated as precedential”); Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir.

1993) (“We will not bind the BIA with a single nonprecedential, unpublished decision any more than we ourselves are bound by our own unpublished orders.”). 

The Government argues that the Supreme Court’s decision

in Aguirre-Aguirre suggests that the BIA’s decision in this

case merits Chevron deference. 526 U.S. 415. In AguirreAguirre, the Court accorded Chevron deference to an unpublished BIA decision that interpreted the meaning of a “serious

nonpolitical crime,” as contained in a prior version of 8

U.S.C. § 1253. Despite the facial similarity between AguirreAguirre and the present case, key distinctions defeat the Government’s argument. First, Aguirre-Aguirre was issued before

Mead, and therefore the BIA’s order in that case was not subject to the limitations that Mead placed on the breadth of

Chevron. Although Mead cited Aguirre-Aguirre, the Supreme

Court did not affirm, or even mention, the application of

Chevron to unpublished BIA decisions. Rather, in a footnote,

the Mead Court cited Aguirre-Aguirre, along with twenty-five

8244 GARCIA-QUINTERO v. GONZALES
other cases, to support its statement that “the overwhelming

number of our cases applying Chevron deference have

reviewed the fruits of notice-and-comment rulemaking or formal adjudication.” 533 U.S. at 230; see id. at 230 n.12. 

Second, and more importantly, the unpublished order in

Aguirre-Aguirre relied on a statutory interpretation of “serious nonpolitical crime” that the BIA had adopted in an earlier

precedential decision.5 526 U.S. at 418. That is, the precise

issue of statutory interpretation had been answered by the

BIA in a published decision that carried the force of law.

Additionally, the BIA already had rejected, in a different precedential decision, the interpretation that the court of appeals

adopted in lieu of the BIA’s approach. See id. at 425 (stating

that because the BIA, in Matter of Rodriguez-Coto, 19 I. & N.

Dec. 208, 209-10 (B.I.A. 1985), rejected an approach that

takes into account evidence of persecution, the appellate court

erred in considering the risk of persecution). 

In Garcia-Quintero’s case, however, both parties concede

that the BIA has never issued a published decision addressing

the precise question at issue. Although the BIA’s order cited

several published BIA decisions, none of them sets forth a

binding interpretation of the question at issue. In sum, unlike

in Aguirre-Aguirre, the BIA’s decision in Garcia-Quintero’s

case was not compelled by precedent. 

[5] In denying Garcia-Quintero’s motion, the BIA did not

issue a precedential interpretation of the relevant FUP statutory provisions, although it could have done so. See Hernandez, 345 F.3d at 839 n.13. In light of Mead, our case law,

the BIA’s governing regulations, and its internal policies and

practices, the unpublished single-member order makes clear

that the BIA issued a decision that lacked the force of law.

5

See Matter of McMullen, 19 I. & N. Dec. 90 (B.I.A. 1984), aff’d, 788

F.2d 591 (9th Cir. 1986). 

GARCIA-QUINTERO v. GONZALES 8245
Therefore, we do not accord Chevron deference to the BIA’s

decision in this case. 

Skidmore Deference

[6] The Supreme Court has made clear, however, that

Chevron deference is not the only type of deference available

to an agency interpretation of its governing statutes or regulations. Mead, 533 U.S. at 237 (“[T]he range of statutory variation has led the Court to recognize more than one variety of

judicial deference.”); Hall, 273 F.3d at 1156 (“[A]n agency

interpretation that is not accorded Chevron deference still may

be entitled to a respect proportional to its power to persuade.”

(internal quotation marks omitted)). Forty years before Chevron, the Supreme Court addressed how courts should treat

non-binding agency interpretations, recognizing that “while

not controlling upon the courts by reason of their authority,

[these interpretations] do constitute a body of experience.”

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The Court

in Skidmore held that “[t]he weight of such a judgment in a

particular case will depend upon 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.”

Id.

Given Mead’s holding that “Chevron left Skidmore intact

and applicable where statutory circumstances indicate . . .

[the] authority to make rules with force of law . . . was not

invoked,” we must undertake a Skidmore assessment of the

BIA’s decision to determine whether it warrants deference.

533 U.S. at 237; see also Padash v. INS, 358 F.3d 1161, 1168

n.6 (9th Cir. 2004) (suggesting that “Skidmore rather than

Chevron,” is the proper level of deference to accord a nonprecedential BIA decision). As discussed below, our Skidmore assessment counsels against adopting the BIA’s

interpretation in this case.

8246 GARCIA-QUINTERO v. GONZALES
B. An FUP beneficiary is “admitted in any status” 

In light of Skidmore, we must examine the validity of the

BIA’s reasoning, its thoroughness, and overall persuasiveness. To do so, we turn to the heart of Garcia-Quintero’s

appeal from the denial of his motion to remand—whether

acceptance into the Family Unity Program renders GarciaQuintero “admitted in any status” for cancellation of removal

purposes. In answering this question in the negative, the BIA

provided two discrete reasons—(i) Garcia-Quintero was not

“admitted in any status” under the definition of “admitted” in

§ 1101 of the INA, 8 U.S.C. § 1101(a)(13); and (ii) Congress

has not manifested an intent to construe FUP beneficiaries as

having been “admitted.” As explained below, because neither

of these reasons is persuasive, we reject the BIA’s position

and conduct a de novo review of the question. 

[7] Although the BIA is correct that Garcia-Quintero’s

enrollment into the FUP did not literally comport with the

INA’s definition of “admitted,” both this court and the BIA,

in precedential decisions, have not limited the scope of “admitted” to this strict definition. Rather, we and the BIA have

held that there are circumstances outside the bounds of the

INA’s definition in which an alien may nonetheless be “admitted.” Under the INA, an alien is “admitted” if he undergoes a “lawful entry . . . into the United States after inspection

and authorization by an immigration officer.” 8 U.S.C.

§ 1101(a)(13). Because Garcia-Quintero was already in the

United States, the BIA determined that his entrance into the

FUP did not constitute an admission into this country, and

therefore he was not “admitted in any status.” 

The BIA’s analysis suffers fatally from its limited reading

of “admitted”—a constraint which it has not applied in other

decisions. In In re Rosas-Ramirez, for example, the BIA held

that the attainment of LPR status constitutes admission, even

when an alien entered without inspection. 22 I. & N. Dec. 616

GARCIA-QUINTERO v. GONZALES 8247
(B.I.A. 1999);

6

see also Ocampo-Duran v. Ashcroft, 254 F.3d

1133, 1134-35 (9th Cir. 2001) (rejecting as “overly narrow”

the petitioner’s claim that he was never “technically” admitted

to the United States because he entered without inspection).

This court recently looked beyond the INA’s definition of

admission in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,

1029 (9th Cir. 2005), and held that an LPR parent’s admission

can be imputed to the parent’s unemancipated minor child,

who resides with the parent, for the purposes of satisfying the

same cancellation of removal requirement at issue in this case

—seven years of continuously residing in the United States

after having been “admitted in any status.” In so holding, this

court acknowledged that there are instances where an alien is

“admitted,” for the purposes of § 1229b(a)(2), without having

been inspected and authorized to enter the United States at the

border. Id. at 1028. 

In Cuevas-Gaspar, we further determined that our understanding of “admitted” comports with the legislative purpose

of cancellation of removal. Section 212(c), the predecessor to

§ 1229b, required an alien seeking relief from removal to

have “lawful unrelinquished domicile of seven consecutive

years.” Id. at 1027. This requirement caused much confusion

among the executive and judicial branches—the BIA and

courts of appeals disagreed about the status necessary to satisfy this requirement. Id. Ultimately, Congress designed the

dual requirement of a five-year legal permanent residency and

6Although Rosas-Ramirez illustrates that the BIA has not always confined “admission” to the definition in 8 U.S.C. § 1101(a)(13), we do not,

as the dissent suggests, base our conclusion that the BIA’s analysis here

is unpersuasive on this case alone. We recognize that Rosas-Ramirez

involved LPR, rather than FUP, status, and therefore does not directly

apply to the present case. Nonetheless, in light of the BIA’s ruling in

Garcia-Quintero’s case, it is noteworthy that the BIA, in other contexts,

has determined that an act of “admission” need not always satisfy the literal terms of the definition. Rosas-Ramirez, 22 I. & N. Dec. at 623

(“[T]hat definition does not set forth the sole and exclusive means by

which admission to the United States may occur under the Act.”). 

8248 GARCIA-QUINTERO v. GONZALES
seven-year continuous residence in any status, § 1229b(a)(1)-

(2), “to clear up prior confusion and to strike a balance

between the conflicting interpretations . . . by counting a limited period of time spent in non-permanent status while still

requiring at least five years of permanent resident status.” Id.

at 1028. 

This legislative history combined with the fact that

§ 1229b(b)(1)(A) requires non-permanent residents to be

physically present for at least ten years immediately preceding

the date of application for cancellation of removal, led this

court in Cuevas-Gaspar to conclude that “admission” is not

limited to the definition listed in 8 U.S.C. § 1101(a)(13). If it

were, LPRs would have a more onerous residence requirement than non-permanent residents, thereby “frustrating Congress’s well-established policy of affording [the former] more

benefits than [the latter].” Id. Although this legislative history

does not reveal congressional intent regarding the FUP, it

does show that Congress did not intend to limit “admission”

to physical entry and inspection, leaving open the possibility

of admission by other means.7

[8] In light of Cuevas-Gaspar, and BIA precedent, admission is not always limited to inspection and authorization at

the point of entry. Therefore, the BIA’s reasoning—that

Garcia-Quintero was not “admitted” because his receipt of

7The Government contends that § 301(f) of IMMACT 90 clearly shows

that Congress did not intend participation in the FUP to constitute an

admission. We disagree. Section 301(f) states that “[n]othing in this section shall be construed as authorizing an alien to apply for admission to,

or to be admitted to, the United States in order to obtain benefits under

this section.” (emphasis added). The plain meaning of subsection (f)

merely bars aliens residing outside the United States on the date of

IMMACT 90’s enactment from entering the country in order to apply for

FUP status. Therefore, while the dissent correctly notes that § 301(f) was

intended to limit the number of aliens that are “admitted to” the United

States, the limitation, contrary to the dissent’s assertion, only applies to

aliens who, unlike Garcia-Quintero, did not reside in the United States at

the time the FUP was instituted. 

GARCIA-QUINTERO v. GONZALES 8249
FUP status “could not have involved his entry into the United

States after inspection and authorization by an immigration

officer”—is unpersuasive. This, however, does not end our

inquiry, because we have addressed only the first word in the

phrase “admitted in any status.” We next consider whether

being an FUP beneficiary constitutes “any status” for cancellation of removal purposes. 

Although not mentioned by the BIA in its decision in this

case, the BIA has, in a precedential decision, discussed extensively the meaning of “in any status.” See In re Blancas-Lara,

23 I. & N. Dec. 458, 461 (B.I.A. 2002). In Blancas-Lara, the

BIA held that the period of an alien’s residence in the United

States as a nonimmigrant counts in calculating the seven years

of continuous residence for cancellation of removal purposes.

Id. at 460. Although the case involved LPR-imputed residence, the BIA expressly declined to reach that issue, and

instead found that “under the plain meaning of the statutory

language, the respondent’s period of residence after his

admission as a nonimmigrant . . . may be considered in calculating the period of continuous residence for purposes of section 240A(a)(2).” Id. at 459. As a result, the nonimmigrant

was eligible for cancellation of removal, even though he, like

Garcia-Quintero, had been an LPR for less than seven years.

In so holding, the BIA analyzed the meaning of “in any status.” It stated: 

Although no specific definition of the word “status”

is included in section 101 of the [INA], it is generally defined in the legal context as a “[s]tanding;

state or condition,” and as “[t]he legal relation of

[an] individual to [the] rest of the community.”

Black’s Law Dictionary 1264 (5th ed. 1979). “Status” is a term of art, which is used in the immigration

laws in a manner consistent with the common legal

definition. It denotes someone who possesses a certain legal standing, e.g., classification as an immi8250 GARCIA-QUINTERO v. GONZALES
grant or nonimmigrant. The use of the word “any” to

modify the word “status” indicates that Congress

intended section 240A(a)(2) to include admissions of

nonimmigrants as well as immigrants. Thus, the

plain language of section 240A(a)(2) encompasses

nonimmigrants admitted to the United States who

thereafter reside in the United States for at least 7

years. 

Id. at 460. In Blancas-Lara, the BIA determined that a nonimmigrant, who was admitted for only a temporary period with

a border crossing card, could use his date of admission as the

beginning of his continuous residence for cancellation of

removal purposes because of his “status” as a nonimmigrant.

The BIA’s analysis in Blancas-Lara weighs heavily in

Garcia-Quintero’s favor. As he argues in his brief to this

court, it surely would be odd for the BIA to hold that although

a nonimmigrant temporarily in the United States can accumulate time for cancellation of removal purposes, an FUP beneficiary, who has maintained that status for four years while

applying for adjustment to LPR status—the very purpose of

the program—cannot. 

As previously mentioned, the protection from deportation

that the FUP grants its beneficiaries is labeled “voluntary

departure,” which is not defined in the governing FUP regulations. As the term is traditionally used, “voluntary departure”

refers to the “time period during which [an] alien may leave

the United States voluntarily rather than be removed.”

Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1168 (9th Cir.

2003); 8 U.S.C. § 1229c. When the INS, BIA, or IJ—all of

whom can authorize voluntary departure—grants an alien voluntary departure, the alien, who is removable from the United

States, “avoid[s] the stigma of compulsory ejection . . . select[s] his or her own destination . . . [and retains] the possibility

of return to the United States.” Contreras-Aragon v. INS, 852

F.2d 1088, 1090 (9th Cir. 1988) (en banc), superseded by statute, Illegal Immigration Reform and Immigrant ResponsibilGARCIA-QUINTERO v. GONZALES 8251
ity Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.

3009, as recognized in Zazueta-Carrillo, 322 F.3d at 1068.

Under § 1229c, an alien who accepts voluntary departure

agrees to leave the United States within the allotted time. 

[9] The grant of voluntary departure under § 1229c is significantly different from the purpose and benefit of FUP voluntary departure. 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. In other words, whereas a removable alien who is granted voluntary departure may remain in

the United States for a limited time to prepare for his departure and avoid forced removal, Garcia-Quintero, as an FUP

beneficiary, was allowed to remain in the United States for

two-year renewable intervals while he worked and adjusted

his status to LPR. Thus, despite the common name, it is clear

that FUP voluntary departure differs from traditional voluntary departure in the removal context. Moreover, even if voluntary departure in the context of the FUP is no different than

its use in the conventional removal context, this does not

mean that participation in the FUP is not a recognized status

given Blancas-Lara and the plain meaning of “in any status.”

Although the grant of voluntary departure may accord an

alien only limited benefits and protections, it is a status nonetheless.8

[10] Finally, “admitted” and “status” do in fact appear

together in one section of the FUP regulations. Section 236.16

8

In Diaz v. Ashcroft, the Fifth Circuit held, in an unpublished decision,

that FUP beneficiaries are not “admitted in any status” for cancellation of

removal purposes. 108 Fed.Appx. at 973. The court reasoned that the grant

of voluntary departure under FUP “does not constitute an admission in any

status.” Id. at 975 (internal quotation marks omitted). Based on the foregoing, we disagree. Therefore, although, as the dissent notes, unpublished

opinions in the Fifth Circuit may be considered for their persuasive value,

see Fifth Circuit Rule 47.5.4, the court’s decision in Diaz lacks such force.

8252 GARCIA-QUINTERO v. GONZALES
authorizes travel outside of the United States if an FUP beneficiary submits a proper application to INS. As previously

stated, upon return from his travels, an FUP beneficiary “shall

be inspected and admitted in the same immigration status as

the alien had at the time of departure,” assuming that he is not

somehow inadmissible. 8 C.F.R. § 236.16 (emphases added).

By its terms, § 236.16 presupposes that FUP beneficiaries

have an “immigration status,” albeit a limited one. The limitations of this status, however, are irrelevant given that

§ 1229b(a)(2) requires admission “in any status.” That is,

because FUP beneficiaries who travel outside the United

States are “admitted in the same immigration status” upon

return, it is only logical that acceptance into the FUP confers

some type of immigration status on the beneficiaries of the

program, all of whom are non-LPRs.9 Perhaps this logic is

what motivated the Government to concede at oral argument

that participation in the FUP could be construed as a status.

[11] In sum, the plain meaning of “admitted in any status,”

the legislative history of § 1229b, and the precedential deci9A recent case in this circuit adds further support for this conclusion. In

Yepez-Razo v. Gonzales, we held that an FUP beneficiary was “lawfully

residing” in the United States from the date of her acceptance into the

FUP, which rendered her eligible for a § 212(h) waiver from removal. 445

F.3d 1216, 1217 (9th Cir. 2006). Yepez-Razo involved a dispute about

when the petitioner became an FUP beneficiary, stemming from the INS’s

initial wrongful denial of her FUP application. The INS did not dispute

that, as an FUP beneficiary, the petitioner was “lawfully residing” in the

United States, rather it only contested the date that she became a beneficiary. Moreover, the court noted that through FUP, “Congress intended to

create mandatory protections for qualifying immigrants.” Id. at 1219.

Although Yepez-Razo does not address the interplay between FUP and

§ 1229b(a)(2), it does suggest that FUP beneficiaries are accorded a limited immigration status—one that grants them certain protections and

authorizes their stay in the United States. See also Memorandum from

Johnny N. Williams, INS Exec. Assoc. Comm’r, Office of Field Operations, Family Unity Benefits and Unlawful Presence, File. No. HQADN

70/10.19 (Jan. 27, 2003) (“[I]f an alien is granted FUP benefits, he or she

will be deemed to be in a period of stay authorized by the Attorney General.”) (cited in Yepez-Razo, 445 F.3d at 1219). 

GARCIA-QUINTERO v. GONZALES 8253
sions of the BIA and this circuit, lead us to hold that acceptance into the Family Unity Program constitutes “admitted in

any status” for the purposes of cancellation of removal. We

therefore grant Garcia-Quintero’s petition regarding his

motion to remand, and we remand to the BIA for further proceedings as it deems appropriate. 

C. Fifth Amendment Challenge 

Garcia-Quintero also challenges the BIA’s affirmance of

the IJ’s decision to order him removed. As explained above,

at the removal hearing, Garcia-Quintero’s attorney advised

him to assert his Fifth Amendment right against selfincrimination when asked about any conduct that implicated

the alien smuggling charge. Although the IJ forbade the attorney from invoking Garcia-Quintero’s Fifth Amendment right

for him, the IJ allowed them to consult one another. After

asserting the privilege twice, Garcia-Quintero confessed to the

conduct underlying the alien smuggling charge. GarciaQuintero argues that the IJ committed a “legal error” by refusing to allow his attorney to assert his Fifth Amendment right

for him, and therefore the removal proceeding was improper.

We disagree. 

[12] The Fifth Amendment privilege against selfincrimination applies in removal hearings where the alien’s

testimony could expose him to future criminal prosecution.

Wall v. INS, 722 F.2d 1442, 1443 (9th Cir. 1984). However,

“[t]he only way the privilege can be asserted is on a questionby-question basis, and thus as to each question asked, the

party has to decide whether or not to raise his Fifth Amendment right.” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d

1258, 1263 (9th Cir. 2000). Thus, to the extent that GarciaQuintero argues that the IJ violated his Fifth Amendment

right by requiring that he assert the privilege after each question, his argument fails. 

8254 GARCIA-QUINTERO v. GONZALES
[13] Garcia-Quintero bases his claim in large part on the

fact that he needed the assistance of an interpreter, which

implies that he did not understand what he was doing by

answering the Government’s questions. Yet, his attorney

acknowledged at the removal hearing that he could not point

to anything that would show that Garcia-Quintero did not

understand that he was incriminating himself by relaying the

details of the June incident in question. Moreover, GarciaQuintero successfully invoked the privilege twice before he

began to answer the Government’s questions, which were not

duplicative of earlier ones. Although it is certainly possible

for a person who initially invokes the Fifth Amendment to

become confused about when to assert it again, especially

where there exists a language barrier, the IJ expressly permitted Garcia-Quintero’s attorney to consult with and advise

Garcia-Quintero. Upon hearing a question put forth by the

Government that he thought triggered the Fifth Amendment,

Garcia-Quintero’s attorney could have objected,10 or asked to

consult with his client. The attorney did neither, and we cannot now say that the IJ violated Garcia-Quintero’s constitutional rights, or that the removal hearing was improper. 

III. Conclusion

When the INS accepted Garcia-Quintero into the FUP in

1993, it authorized him to remain and work in the United

States for renewable two-year periods while he adjusted to

LPR status. He was also permitted to, and did, travel outside

the United States upon authorization. As an FUP beneficiary,

Garcia-Quintero held the same job for five years, paid United

10In support of his argument, Garcia-Quintero cites Glanzer, in which

an attorney objected to a question on behalf of his client. In so doing,

Garcia-Quintero ignores two critical distinctions between Glanzer and this

case. In Glanzer, the attorney objected to the question immediately after

opposing counsel posed it, and his client remained silent. 232 F.3d at

1263. Here, however, Garcia-Quintero’s attorney did not voice any objections until after the Government and the IJ finished examining his client,

and after Garcia-Quintero answered the questions. 

GARCIA-QUINTERO v. GONZALES 8255
States taxes, and raised a family. We hold that GarciaQuintero’s acceptance into the FUP rendered him “admitted

in any status.” He is therefore eligible for cancellation of

removal, and we remand to the BIA for further proceedings

consistent with this opinion. However, because GarciaQuintero did not invoke his Fifth Amendment right, but

instead admitted that he had engaged in alien smuggling, we

deny his challenge to the BIA’s order affirming the IJ’s determination that Garcia-Quintero is removable. We therefore

grant Garcia-Quintero’s petition for review in part and deny

it in part. 

Petition GRANTED in part and REMANDED for further

proceedings; DENIED in part. 

GRABER, Circuit Judge, concurring in part and dissenting in

part: 

Although I concur in the majority’s analysis of the Fifth

Amendment issue and agree that the deference we owe to the

Board of Immigration Appeals (“BIA”) is defined by Skidmore v. Swift & Co., 323 U.S. 134 (1944), rather than by

Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), I respectfully dissent from the

majority’s conclusion that the BIA misinterpreted 8 U.S.C.

§ 1229b(a)(2). 

Title 8 U.S.C. § 1229b(a)(2) provides that cancellation of

removal is available, at the Attorney General’s discretion, for

a legal permanent resident alien (“LPR”) who is inadmissible

or deportable if (among other criteria) he “has resided in the

United States continuously for 7 years after having been

admitted in any status.” (Emphasis added.) There is no dispute that Petitioner’s period of continuous residence ended on

June 8, 2001, when he attempted to smuggle an alien into the

United States. 8 U.S.C. § 1229b(d)(1). There also is no dis8256 GARCIA-QUINTERO v. GONZALES
pute that Petitioner entered the United States illegally in 1986.

The question presented is whether Petitioner was “admitted”

to the United States in 1998, when he became an LPR, or in

1993, when he was accepted into the Family Unity Program.

Congress has defined “admitted” as follows: 

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. 

8 U.S.C. § 1101(a)(13). It is reasonable and persuasive for the

BIA to rely on that statutory definition of “admitted” in construing the term “admitted” in § 1229b(a)(2). 

The majority emphasizes that the “BIA’s analysis suffers

fatally,” majority op. at 8247, because the agency held in In

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

attainment of LPR status constitutes “admission,” even when

an alien entered without inspection. There are two difficulties

with the majority’s conclusion in this regard. First, the BIA’s

decision here gave Petitioner the benefit of that interpretation

by conceding his “admission” in 1998. Second, and more

importantly, the BIA’s decision in Rosas-Ramirez is consistent with its construction of a materially different section of

the statute here. 

In Rosas-Ramirez the BIA majority relied on the fact that

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30,

1996), provides for removal of aliens who, it turns out, were

inadmissible “ ‘at the time of entry or adjustment of status.’ ”

22 I. & N. Dec. at 621 (emphasis added) (quoting

§ 237(a)(1)(A) of the Act). The decision reasoned that this

section—by referring to those who were inadmissible either

at the time of entry or at the time of adjustment of status—

implicitly recognizes its opposite: that aliens can be admissiGARCIA-QUINTERO v. GONZALES 8257
ble, and admitted, either at the time of entry or at the time of

adjustment of status. Id. at 621-23. The BIA majority in

Rosas-Ramirez also pointed to the fact that 8 U.S.C.

§ 1101(a)(20) defines the term “ ‘lawfully admitted for permanent residence’ ” as a “status” rather than as an event, a

definition of admission in the LPR context that encompasses

both admissions to LPR status at the border and later adjustment to LPR status. 22 I. & N. Dec. at 618-19 (emphasis

added). 

By contrast, the statute establishing the Family Unity Program (“FUP”), Pub. L. No. 101-649, § 301, 101 Stat. 4978

(Nov. 29, 1990) (IMMACT), contains no text that necessarily

implies that acceptance into the program constitutes a form of

“admission” into the United States. The statute defines an “eligible immigrant” in terms of relationship to a “legalized alien,”

1

not in terms of whether, when, or how “admission” takes

place. Id. § 301(b). An alien is eligible only if he or she “entered” the United States before May 5, 1988, “resided” here

on that date, and was not “lawfully admitted for permanent

residence.” Id. § 301(a). By using the term “entered” without

the qualifying phrase in the usual definition of “admitted” and

by expressly excluding those who were “admitted” as LPRs,

Congress omitted any suggestion that acceptance into the FUP

is a form of “admission” into the United States. In substance,

the statute simply allowed certain aliens to remain in the

United States and to work under a temporary grant of “voluntary departure” while waiting for their potential adjustment to

LPR status—that is, for potential “admission.”

1Unlike the term “eligible immigrant,” the term “legalized alien” does

make reference to the concept of “admission.” Section 301(b)(2) defines

“legalized alien” to mean certain aliens “lawfully admitted for temporary

or permanent residence.” The absence of a reference to “admission” in the

definition of an “eligible immigrant” like Petitioner further suggests that

“admission” is not a necessary consequence of acceptance into the Family

Unity Program. 

8258 GARCIA-QUINTERO v. GONZALES
Critically, too, § 301(c) provides that, “[e]xcept as otherwise specifically provided in this section, the definitions contained in the Immigration and Nationality Act shall apply in

the administration of this section.” (Emphasis added.) In other

words, Congress directed the BIA’s attention, and ours, to 8

U.S.C. § 1101(a)(13). 

Additionally, the majority relegates § 301(f) to a footnote,

majority op. at 8249 n.7, but that section supports—even if it

does not compel—the BIA’s interpretation. Section 301(f)

states that “[n]othing in this section shall be construed as

authorizing an alien to apply for admission to, or to be admitted to, the United States in order to obtain benefits under this

section.” As the majority properly notes, this section bars

aliens who resided outside the United States on the date of

IMMACT’s enactment from entering in order to apply for

FUP benefits. This section conveys two additional things

about congressional intent as well. The first is that Congress

viewed the Family Unity Program as the receipt of “benefits,”

rather than as a form of “admission” into the United States.

The second is that Congress generally intended to grant those

“benefits” without expanding the population of aliens “admitted to” the United States. 

Finally, it is worth noting that the Fifth Circuit has decided

the precise question that we face. That court held that the BIA

properly interpreted the statute. Diaz v. Ashcroft, 108 F.

App’x 972 (5th Cir. 2004) (unpublished decision). Although

the decision is unpublished, Fifth Circuit Rule 47.5.4 allows

citation to an unpublished decision for its persuasive value.

National uniformity is especially important in immigration

matters. See Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th

Cir. 2004) (noting that the need for national uniformity is

“paramount” in the immigration context). We should not

lightly dismiss the Fifth Circuit’s conclusion. 

I do not suggest that the majority’s interpretation of this

ambiguous statute is wholly untenable, and I am sympathetic

GARCIA-QUINTERO v. GONZALES 8259
to the majority’s desire for generosity toward aliens who

reside, with their families, within our borders. But, in my

view, the BIA’s interpretation more faithfully represents the

law that Congress decided to enact. Therefore, I would deny

the petition in its entirety.

8260 GARCIA-QUINTERO v. GONZALES