FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ALEJANDRA VASQUEZ DE
ALCANTAR,
No. 08-71427
Petitioner,
v. Agency No.
A075-599-388
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 2, 2010—Pasadena, California
Filed June 3, 2011
Before: Mary M. Schroeder, Raymond C. Fisher and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith;
Concurrence by Judge Fisher
7405
7408 VASQUEZ DE ALCANTAR v. HOLDER
COUNSEL
Christopher J. Stender, San Francisco, California, for peti-
tioner Maria Alejandra Vasquez de Alcantar.
Jessica Segall, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington, D.C., for
respondent Attorney General Holder.
VASQUEZ DE ALCANTAR v. HOLDER 7409
OPINION
N.R. SMITH, Circuit Judge:
An approved Form I-130 Petition for Alien Relative does
not confer admission status on an undocumented alien for
purposes of showing seven years of continuous residence
under 8 U.S.C. § 1229b(a)(2). An approved Form I-130 peti-
tion merely provides an undocumented alien (one who entered
without inspection or authorization and has not otherwise
been admitted) permission to apply for adjustment of status.
I. Factual Background
Maria Alejandra Vasquez de Alcantar (“Vasquez”) entered
the United States without inspection in 1989. Vasquez later
married a legal permanent resident (“LPR”), who thereafter
became a United States citizen. After their marriage, Vasquez
wanted to receive LPR status in the United States. Therefore,
Vasquez’s husband filed a Form I-130, Petition for Alien Rel-
ative, to establish his marital relationship to Vasquez as a first
step in assisting Vasquez to adjust her status to that of an
LPR. On August 6, 1998, Vasquez’s husband’s I-130 visa
petition was granted. The approval of the I-130 allowed
Vasquez to apply for adjustment of status (Form I-485, Appli-
cation to Register Permanent Residence or Adjust Status),
which she did on June 5, 2000. As is customary with most
aliens who are awaiting LPR status, the United States Citizen-
ship and Immigration Services (“USCIS”) issued Vasquez
employment authorization, which enabled Vasquez to seek
employment in the United States.1 On May 17, 2001, she was
granted LPR status.
1
Aliens awaiting LPR status are also allowed to apply for advanced
parole (Form I-131) in order to travel outside of the United States.
Vasquez applied for advanced parole during this time period, but it is
unclear from the record whether it was granted.
7410 VASQUEZ DE ALCANTAR v. HOLDER
However, on July 12, 2006, Vasquez attempted, by using
her daughter’s travel documents, to assist an undocumented,
unrelated minor to unlawfully enter the United States. On the
next day, Vasquez was served with a Notice to Appear in
removal proceedings for knowingly assisting an undocu-
mented person to enter the United States in violation of
§ 212(a)(6)(E)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(E)(i).
After Vasquez’s removal proceedings, the Immigration
Judge (“IJ”) found her removable based upon the charges.
Vasquez then applied for cancellation of removal, asserting
eligibility because she (1) had been an LPR for more than five
years; (2) had resided in the United States for more than seven
years after being “admitted in any status;” and (3) had not
been convicted of an aggravated felony. The IJ found that
Vasquez met all the elements required for cancellation of
removal under 8 U.S.C. § 1229b(a). Relevant to this appeal,
the IJ specifically found that Vasquez met the seven years of
continuous residence requirement by finding Vasquez was
“admitted in any status” on the day she became the benefi-
ciary of an approved I-130 petition (August 6, 1998). In
reaching that decision, the IJ found a beneficiary of an
approved I-130 visa petition was “admitted in any status,” by
comparing I-130 beneficiaries to beneficiaries of the Family
Unity Program, which we held are “admitted in any status” in
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1009 (9th Cir.
2006).
On appeal, the Board of Immigration Appeals (“BIA”) dis-
agreed with the IJ. The BIA instead determined that an alien
with an approved visa petition (Form I-130) and a pending
adjustment of status application (Form I-485) only has a
“pending application for admission” and is therefore not “ad-
mitted in any status.” The BIA found that Vasquez was not
“admitted in any status” until May 17, 2001 (the date she was
granted LPR status). Vasquez, therefore, did not meet the
seven years of continuous residence requirement for cancella-
VASQUEZ DE ALCANTAR v. HOLDER 7411
tion of removal. The BIA limited Garcia-Quintero’s applica-
bility to those aliens admitted into the Family Unity Program.
II. Standard of Review
We review de novo “the BIA’s determination of purely
legal questions, including the BIA’s interpretation of the
Immigration and Nationality Act.” Lopez v. INS, 184 F.3d
1097, 1099 (9th Cir. 1999). We apply Chevron deference to
the Attorney General’s interpretations of ambiguous immigra-
tion statutes, if the agency’s decision is a published decision.
See Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th
Cir. 2009). However, we need not defer to the BIA if the stat-
ute is unambiguous. See id. at 908; see also INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). We follow “the Skidmore
framework if the decision is unpublished (and not directly
controlled by any published decision interpreting the same
statute).” Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010)
(citing Marmolejo-Campos, 558 F.3d at 909-11).
III. Discussion
[1] In order to be eligible for cancellation of removal, a
legal permanent resident alien (who is inadmissible or deport-
able) must meet the requirements set forth in 8 U.S.C.
§ 1229b(a):
The Attorney General may cancel removal in the
case of an alien who is inadmissible or deportable
from the United States if the alien—
(1) has been an alien lawfully admitted for perma-
nent residence for not less than 5 years,
(2) has resided in the United States continuously for
7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
7412 VASQUEZ DE ALCANTAR v. HOLDER
In this case, we must only decide at what point Vasquez was
“admitted in any status” under 8 U.S.C. § 1229b(a)(2). The
other requirements of the statute are not disputed. Specifi-
cally, we must decide whether having received an approved
Form I-130 petition from the USCIS constitutes admission “in
any status.” In making this determination, we first consider
whether Vasquez was “admitted in any status” by lawful entry
after inspection, under the definition of “admitted” set forth
in 8 U.S.C. § 1101(a)(13)(A). We conclude that she was not.
We then apply our case law, which explains alternative meth-
ods for satisfying the statutory requirement of § 1229b.
A. “Admitted” as defined by 8 U.S.C. § 1101(a)(13)(A)
is not applicable
The Supreme Court established that, when we review the
Attorney General’s interpretation of a provision of the INA,
we apply the two-step inquiry set forth by the Supreme Court
in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837 (1984). Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,
1021 (9th Cir. 2005). We ask (1) “whether Congress has
directly spoken to the precise question at issue,” Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 489 (9th Cir. 2007)
(quoting Chevron, 467 U.S. at 842), and, if not, (2) “whether
the agency’s answer is based on a permissible construction of
the statute,” id. at 492 (quoting Chevron, 467 U.S. at 843). “If
congressional intent is clear, both the court and the agency
must ‘give effect to the unambiguously expressed intent of
Congress.’ ” Garcia-Quintero, 455 F.3d at 1012 (quoting
Chevron, 467 U.S. at 843). However, we must defer to the
BIA in interpreting a provision of the INA if the statute is
silent or ambiguous with respect to the specific issue before
the agency, and the BIA’s interpretation is “ ‘based on a per-
missible construction of the statute.’ ” Aguirre-Aguirre, 526
U.S. at 424 (quoting Chevron, 467 U.S. at 843).
At issue here is whether Vasquez “resided in the United
States continuously for seven years after having been admit-
VASQUEZ DE ALCANTAR v. HOLDER 7413
ted in any status.” 8 U.S.C. § 1229b(a)(2). There is no dispute
that Vasquez entered the United States illegally (without
inspection and authorization) in 1989. There is also no dispute
that Vasquez has been in the United States continuously for
more than seven years. Lastly, there is no dispute that her
period of continuous residence ended on July 12, 2006, when
she attempted to smuggle an alien into the United States. 8
U.S.C. § 1229b(d)(1). In order to answer the question, we
must first examine the language of the statute.
[2] While the whole phrase “admitted in any status” is not
defined by Congress, the term “admitted” is. See 8 U.S.C.
§ 1101(a)(13)(A). The statute provides that “ ‘Admission’ and
‘admitted’ mean . . . the lawful entry of the alien into the
United States after inspection and authorization by an immi-
gration officer.” 8 U.S.C. § 1101(a)(13)(A). This definition is
clear and unambiguous. Shivaraman v. Ashcroft, 360 F.3d
1142, 1146 (9th Cir. 2004). Thus, we need not defer to the
BIA with regard to the meaning of this term.
[3] Shivaraman also makes it clear that the date of admis-
sion is usually the date of lawful entry into the United States.
360 F.3d at 1146. In addressing the applicable date of admis-
sion for an alien who entered the United States legally and
adjusted his status to that of a lawful permanent resident, we
held that “the statute makes clear that it is the date on which
the alien lawfully enters that triggers the [applicable time peri-
od].”2 360 F.3d at 1143, 1146 (emphasis in original). Thus,
the date of admission was the date that Shivaraman legally
entered the United States. Id.3 In so holding, we rejected the
BIA’s contention that Shivaraman’s “date of admission” was
the date of his adjustment rather than the date of his lawful
2
The language at issue in Shivaraman was “after the date of admission.”
See INA § 237(a)(2)(A)(I), 8 U.S.C. § 1227.
3
This court recently held in Hing Sum v. Holder that “admitted” as used
in § 1101(a)(13)(A) refers to inspection and authorization after a “proce-
durally lawful entry.” 602 F.3d 1092, 1098-99 (9th Cir. 2010).
7414 VASQUEZ DE ALCANTAR v. HOLDER
entry into the United States. We distinguished Ocampo-Duran
v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001) and In re Rosas-
Ramirez, 22 I. & N. Dec. 616 (BIA 1999), because, in those
cases, the petitioners “initially entered the U.S. without
inspection and authorization, and remained [in the U.S.]
unlawfully until their subsequent adjustment of status. Under
INA § 237(a)(2)(A)(iii), that adjustment [of status date] con-
stituted [Ocampo-Duran’s and Rosas-Ramirez’s] first and
only ‘admission’ to this country . . . .” Shivaraman, 360 F.3d
at 1147 (emphases in the original).
[4] Thus, in applying the plain language of the statutory
definition of “admitted” to the present case, Vasquez was
never “admitted” as defined in § 1101(a)(13)(A), because she
did not enter the United States after inspection and authoriza-
tion.
B. An approved I-130 visa petition does not qualify a
beneficiary as “admitted in any status” under the
alternative methods of establishing § 1229b(a)(2)
admission
Even though Vasquez was not “admitted” under the statu-
tory definition set forth in 8 U.S.C. § 1101(a)(13)(A), the
clause “in any status” has been interpreted to create alterna-
tive methods for aliens, who do not enter after inspection and
authorization, to meet the “admitted in any status” require-
ment of § 1229b(a)(2). See Cuevas-Gaspar, 430 F.3d at 1029
(holding that the terms “admit” or “admission” were not lim-
ited to the definition found in 8 U.S.C. § 1101(a)(13) and thus
a parent’s LPR status is imputed to unemancipated minor
children for purposes of “admission.”); In re Rosas-Ramirez,
22 I. & N. Dec. at 619 (holding “admitted” for purposes of 8
U.S.C. § 1227(a)(2)(A)(iii) includes those who are “lawfully
admitted for permanent residence”). We examine and apply
those alternative methods now.
VASQUEZ DE ALCANTAR v. HOLDER 7415
1. Vasquez was not admitted as a nonimmigrant
The phrase “admitted in any status” is not defined by stat-
ute. Therefore, we look first to the BIA for its interpretation.
While the BIA did not address this phrase in the present case,4
it addressed its meaning in In re Blancas-Lara, 23 I. & N.
Dec. 458 (B.I.A. 2002). In Blancas-Lara, the BIA considered
whether a nonimmigrant who entered the United States with
a border crossing card was “admitted in any status.” Id. at
459. The BIA found that the term “in any status” modifies the
term “admitted,” in that it applies equally to immigrants and
nonimmigrants alike. The BIA noted as follows:
Although no specific definition of the word “status”
is included in section 101 of the Act, it is generally
defined in the legal context as a “[s]tanding; state or
condition,” and as “[t]he legal relation of [an] indi-
vidual 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 man-
ner consistent with the common legal definition. It
denotes someone who possesses a certain legal
standing, e.g., classification as an immigrant or non-
immigrant. The use of the word “any” to modify the
word “status” indicates that Congress intended sec-
tion 240A(a)(2) to include admissions of nonimmi-
grants as well as immigrants. Thus, the plain
language of section 240A(a)(2) encompasses nonim-
migrants admitted to the United States who thereaf-
ter reside in the United States for at least 7 years.
4
We afford little deference under Skidmore to the BIA’s analysis in the
present case, because it did not provide thorough reasoning and is conclu-
sory. See Garcia-Quintero, 455 F.3d at 1014 (“[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 ear-
lier and later pronouncements, and all those factors which give it power
to persuade, if lacking power to control.” (quoting Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944)).
7416 VASQUEZ DE ALCANTAR v. HOLDER
Id. at 460. We have previously relied upon this definition. See
Garcia-Quintero, 455 F.3d at 1017.
Thus, under this analysis, aliens, immigrants and nonimmi-
grants alike, are eligible to accrue time towards the continu-
ous residence requirement after they are lawfully admitted
even if they are illegally present for some period of time
thereafter. See Blancas-Lara, 23 I. & N. Dec. at 461 (noting
that “Congress could easily have written section 240A(a)(2)
to include maintenance of status as a prerequisite for relief”).
This BIA definition does not support Vasquez’s argument that
an approved I-130 visa petition provides status, because
Vasquez is not categorically an immigrant or a nonimmigrant.
See 8 U.S.C. § 1101(a)(15). Both immigrants and nonimmi-
grants alike have been previously “admitted.” Here, Vasquez
was never “admitted” either by (1) inspection at the border or
(2) an alternative method (discussed herein), thus she was cat-
egorically an undocumented or illegal alien.
[5] While 8 U.S.C. § 1255(i)(1) allows certain undocu-
mented aliens to apply for adjustment of status if they are
beneficiaries of an I-130 visa petition, the approval of the I-
130 petition does not constitute admission “in any status.” See
8 U.S.C. § 1255. As we noted in Agyeman v. INS, the
approval of the I-130 visa petition only “establishes eligibility
for status, the Attorney General — or in the context of depor-
tation proceedings, the IJ — must still decide to accord the
status.” 296 F.3d 871, 879 (9th Cir. 2002); see also Ton-
gatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305
(9th Cir. 1984) (noting that an approved visa petition “does
not guarantee that a visa will be issued, nor does it grant the
alien any right to remain in the United States. . . . The INS
may revoke an approved visa petition ‘at any time’ when it
finds ‘good and sufficient cause.’ ” (citations omitted)).
Although Blancas-Lara did not address the term “in any sta-
tus” in the context of undocumented aliens who later receive
an I-130 visa petition, we find no reason to expand its prof-
fered definition of “in any status” to apply here.
VASQUEZ DE ALCANTAR v. HOLDER 7417
2. Filing for LPR status does not confer admission
[6] There is no dispute that Vasquez was admitted when
she received her LPR status in May 2001. While Vasquez
took the appropriate steps to receive LPR status (applying for
and receiving an I-130 visa petition), we have never held that
mere filing for LPR status constitutes admission. In United
States v. Latu, we held that the filing of an application for
adjustment of status did not legalize the alien’s presence in
the context of 18 U.S.C. § 922(g)(5)(A) (being an illegal alien
in possession of a firearm). See 479 F.3d 1153, 1159 (9th Cir.
2007). Although in Latu, we were required to determine
whether Latu met the definition of “illegally or unlawfully”
based upon his failure to depart the United States, we
addressed the effect that his application for adjustment of sta-
tus (based upon his marriage to a United States citizen) had
upon his “illegal status.” Id. at 1157-58. In doing so, we cited
with favor United States v. Elrawy, which held “[A]n alien
who has acquired unlawful or illegal status (either by over-
staying a visa or illegally crossing the border without admis-
sion or parole) cannot relinquish that illegal status until his
application for adjustment of status is approved.” 448 F.3d
309, 314 (5th Cir. 2006) (emphasis added). We continue to
agree with the Fifth Circuit’s holding in Elrawy that “the sub-
mission of an application does not connote that the alien’s
immigration status has changed, as the very real possibility
exists that the INS will deny the alien’s application altogeth-
er.” Id. at 313 (quoting United States v. Lucio, 428 F.3d 519,
525 (5th Cir. 2005)).
[7] Because we hold that the filing of an application for
adjustment of status does not confer any change in status, we
also hold that an approved I-130 application does not confer
any change in status. As noted by the Fifth Circuit in Elrawy,
an approved I-130 petition does not change the beneficiary’s
unlawful status, “because the approval of the petition is only
one step in the application for adjustment of status.” Id. at
314; see also Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.
7418 VASQUEZ DE ALCANTAR v. HOLDER
2005) (holding that the approval of an I-130 does not entitle
the alien to adjustment of status because the IJ would still
have to determine whether to confer LPR status); United
States v. Bazargan, 992 F.2d 844, 848 (8th Cir. 1993) (hold-
ing that a grant of an employment authorization did not alter
an asylum applicant’s legal status for purposes of
§ 922(g)(5)).
[8] Therefore, because Vasquez entered without inspection
or authorization, her first and only admission (giving her sta-
tus) is the date that her adjustment of status was approved
(here May 17, 2001). The filing and subsequent approval of
a Form I-130 visa petition cannot be the equivalent of inspec-
tion and authorization to enter and remain in the United
States. An approved I-130 visa petition only allows the alien
petitioner to obtain work authorization5 and apply for adjust-
ment of status (Form I-485). Any finding that the approval of
a Form I-130 visa petition (the first step in adjusting one’s
status) meets the statutory definition of “admitted in any sta-
tus” would be inconsistent with our precedent. Thus, because
the statutory language and case law is clear, we hold that
Vasquez was not admitted in any status until her status was
adjusted.
[9] Because seven years had not passed between the time
that Vasquez’s adjustment of status application was approved
(May 2001) and the time of her offense (July 2006), she is not
eligible for cancellation of removal under 8 U.S.C.
§ 1229b(a)(2).
5
Because Vasquez does not argue that the issuance date of her employ-
ment authorization gave her status, we decline to address that issue here.
We note, however, that even if she had made that argument, she would not
have met the seven years of continual residence.
VASQUEZ DE ALCANTAR v. HOLDER 7419
3. An approved I-130 visa petition is not the equivalent
of acceptance into the Family Unity Program
Applying Cuevas-Gaspar, we further extended the defini-
tion of “admitted in any status” to include participants in the
Family Unity Program (“FUP”) in Garcia-Quintero v. Gon-
zales, 455 F.3d 1006 (9th Cir. 2006).6 Vasquez was not admit-
ted as an FUP beneficiary. Instead, Vasquez argues that an
approved I-130 visa petition is the equivalent of acceptance
into the FUP, and therefore the same “family unity” justifica-
tion for “admitting” FUP beneficiaries should apply to I-130
beneficiaries. We disagree.
Garcia-Quintero was an undocumented alien who married
an LPR and was accepted into the FUP. Garcia-Quintero, 455
F.3d at 1009. The BIA held that the FUP beneficiary status
did not render one “admitted in any status” for purposes of
cancellation of removal. Id. at 1011. On appeal, we rejected
the BIA’s unpublished determination that FUP acceptance
does not render one “admitted in any status.” Id. We first
noted that the term “admission” was not limited to “physical
entry and inspection” as set forth in 8 U.S.C. § 1101(a)(13).
See id. at 1016 (citing Cuevas-Gaspar, 430 F.3d at 1028). We
next determined that “in any status” applied to FUP beneficia-
ries as long as they remained in the program while applying
for adjustment of status, because the purpose of the program
was for aliens to remain and work in the United States for
two-year renewable intervals until their application was
approved. Id. at 1017. Because FUP beneficiaries were
allowed to remain in the United States for two-year renewable
intervals while they worked and awaited adjustment of status,
we concluded that this met the meaning of “in any status.” See
id. at 1018. We further noted that the terms “admitted” and
“status” appeared together in the FUP regulations indicating
6
The BIA in Matter of Reza-Murillo, 25 I. & N. Dec. 296 (B.I.A. 2010),
rejected our holding in Garcia-Quintero in a published opinion out of the
Fifth Circuit.
7420 VASQUEZ DE ALCANTAR v. HOLDER
that Congress intended “FUP beneficiaries [to] have an
‘immigration status,’ albeit a limited one.” Id. Thus, we held
that FUP beneficiaries were “admitted in any status” for pur-
poses of cancellation of removal. Id. at 1019.
[10] However, Garcia-Quintero is not applicable here,
because FUP beneficiaries are distinct from I-130 visa peti-
tion beneficiaries. The FUP was created to allow eligible
spouses or unmarried children of legalized aliens to apply for
the benefits of the program, including protection from depor-
tation and authorization to work in the United States. Garcia-
Quintero, 455 F.3d at 1009 (citing Pub. L. No. 101-649,
§ 301(a) (2006)). The FUP is “designed to help families stay
together while the beneficiaries adjust to LPR status.” Id.
Though beneficiaries under the FUP and beneficiaries of I-
130 visa petitions are provided similar benefits, such as the
ability to remain in the United States and seek employment
while awaiting adjustment to LPR status, participants in the
FUP are provided congressionally mandated benefits, and
must meet additional requirements for eligibility. Thus, the
mere approval of an I-130 visa petition (without more) is not
the equivalent of participation in the FUP.
Regarding the congressionally mandated benefits, in enact-
ing the FUP, Congress specifically set forth protections and
entitlements not provided to other aliens. See Pub. L. No. 101-
649, § 301. FUP recipients “ ‘may not be deported or other-
wise required to depart’ the United States and ‘shall be
granted authorization to engage in employment.’ ” Yepez-
Razo v. Gonzales, 445 F.3d 1216, 1219 (9th Cir. 2006) (quot-
ing § 301(a)(1), (2) [set out as a note to 8 U.S.C. § 1255a]).
No such “mandatory protections” exist for a recipient of an I-
130 visa petition. To be sure, “nothing in the Immigration and
Nationality Act immunizes a deportable alien from deporta-
tion when a visa petition filed on his behalf is approved.” Per-
ales v. Casillas, 903 F.2d 1043 (5th Cir. 1990) (citing Rubio
de Canchu v. INS, 568 F.2d 625, 628 (9th Cir. 1977)
(“[P]ending applications for immigration status do not entitle
VASQUEZ DE ALCANTAR v. HOLDER 7421
an alien to a suspension or termination of deportation.”)); see
also 8 U.S.C. § 1255(i).
As noted, FUP applicants must meet heightened eligibility
requirements, which also sets them apart from I-130 appli-
cants. First, qualified aliens must meet additional eligibility
requirements under the FUP in addition to complying with the
Form I-130 petition requirements. They must have entered the
United States before May 5, 1988 or December 1, 1988 and
have continually resided in the United States since that date.
See 8 C.F.R. §§ 236.12, 236.15.
Second, the FUP excludes all applicants from eligibility if
they are:
(a) An alien who is deportable under any paragraph
in section 237(a) of the Act [8 U.S.C. § 1227],
except paragraphs (1)(A), (1)(B), (1)(C), and (3)(A);
provided that an alien who is deportable under sec-
tion 237(a)(1)(A) of such Act is also ineligible for
benefits under the Family Unity Program if deporta-
bility is based upon a ground of inadmissibility
described in section 212(a)(2) or (3) of the Act [8
U.S.C. § 1182];
(b) An alien who has been convicted of a felony or
three or more misdemeanors in the United States;
(c) An alien described in section 241(b)(3)(B) of the
Act; or
(d) An alien who has committed an act of juvenile
delinquency (as defined in 18 U.S.C. 5031) which if
committed by an adult would be classified as:
(1) A felony crime of violence that has an
element the use or attempted use of physi-
cal force against another individual; or
7422 VASQUEZ DE ALCANTAR v. HOLDER
(2) A felony offense that by its nature
involves a substantial risk that physical
force against another individual may be
used in the course of committing the
offense.
8 C.F.R. § 236.13. Nothing in the regulations or statutes pro-
vides the same exclusions for beneficiaries of an I-130 visa
petition. For example, based upon the plain language in the
FUP, aliens are ineligible if they have been convicted of any
felony. This is in contrast to the statutory framework that
defines which classes of aliens are ineligible for Form I-130
visa petitions or admission. There, Congress has not excluded
aliens based upon a conviction of any felony, but rather sets
forth the specific crimes (and exceptions thereto) which
would make an alien ineligible for an I-130 visa petition. See
8 U.S.C. § 1182(a)(2). Thus, the qualifications are more strin-
gent for FUP beneficiaries.
Third, unlike I-130 visa recipients, FUP beneficiaries are
provided “immigration status” in the regulations. FUP benefi-
ciaries are allowed to travel outside the United States by
applying for advanced authorization (Form I-131). While ben-
eficiaries of an approved I-130 visa petition may also request
permission to travel outside of the United States, the contrast
in the language addressing advanced parole for the two cate-
gories is telling. A FUP beneficiary who travels outside the
United States on advanced authorization and returns “shall be
inspected and admitted in the same immigration status as the
alien had at the time of departure . . . .” 8 C.F.R. § 236.16
(emphasis added). On the other hand, admission status con-
nected to advanced parole for other adjustment of status appli-
cants is specifically precluded by 8 U.S.C. § 1182(d)(5)(A),
which states that the granting of advanced parole “shall not be
regarded as an admission of the alien.” See also 8 U.S.C.
§ 1101(a)(13)(B) (“An alien who is paroled under section
1182(d)(5) . . . shall not be considered to have been admit-
ted.”). It is clear by the statutory language that Congress
VASQUEZ DE ALCANTAR v. HOLDER 7423
intended to provide some “status” to FUP recipients. Con-
gress did not use the same language in respect to those per-
sons applying for visas, thus we assume Congress did so on
purpose. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452
(2002).
Lastly, the extra protection or “immigration status” pro-
vided to FUP beneficiaries was clarified by Congress when it
“established the principle of unlawful presence in 1996, [and]
noted that ‘no period of time in which the alien is a benefi-
ciary of Family Unity protection pursuant to section 301 of
the Immigration Act of 1990 shall be taken into account in
determining the period of unlawful presence in the United
States.’ ” Yepez-Razo, 445 F.3d at 1219 (quoting 8 U.S.C.
§ 1182(a)(9)(B)(iii)(III) (1997)) (alterations omitted). No sim-
ilar language exists with regard to beneficiaries of the I-130
visa.
[11] The foregoing makes it clear that FUP participants are
distinct from those aliens who have merely become I-130
beneficiaries. Congress, in enacting the FUP, provided man-
datory protections and benefits to a distinct group of aliens
while they await adjustment of status. It has not enacted simi-
lar protections to beneficiaries of I-130 visa petitions. Thus,
we hold that the FUP extends admission status to a narrow
group of applicants as set forth by Congress. Because the case
law, statutes, and regulations do not support a holding that
beneficiaries of approved I-130 visa petitions should be given
admission status, we must decline to do so.
PETITION FOR REVIEW DENIED.
7424 VASQUEZ DE ALCANTAR v. HOLDER
FISHER, Circuit Judge, concurring specially:
I agree with my colleagues in the majority that neither the
approval of Vasquez’s husband’s I-130 petition nor the filing
of Vasquez’s application for adjustment of status constituted
admission “in any status” under 8 U.S.C. § 1229b(a)(2). I
therefore concur, but with the understanding that the discus-
sion, in Part III.B.3, of the difference between Vasquez’s cir-
cumstances and those of a Family Unity Program (FUP)
beneficiary merely distinguishes approval of the I-130 peti-
tion from acceptance into the FUP, without reaching whether
any other grant of benefits might constitute admission. See
Maj. Op. at 7418 n.5.