Guevara v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MELCHOR GUEVARA, 
Petitioner, No. 08-72252
v.
 Agency No.
A075-498-425
ERIC H. HOLDER JR., Attorney
General, OPINION
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;
Dissent by Judge Fisher

7383
7386 GUEVARA v. HOLDER

COUNSEL

Gary Finn, Indio, California, for petitioner Melchor Guevara.

Nairi M. Simonian, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
respondent Attorney General Holder.

OPINION

N.R. SMITH, Circuit Judge:

The grant of employment authorization, pending the
approval of adjustment of status to that of a Legal Permanent
Resident (LPR) under 8 U.S.C. § 1255, does not confer
admission status on an undocumented alien (one who entered
without inspection or authorization and has not otherwise
been admitted) for purposes of calculating seven years of con-
tinuous residence under 8 U.S.C. § 1229b(a)(2). Employment
authorization, under 8 C.F.R. § 274a.12(c), merely allows
such alien the right to work while his or her application for
adjustment of status is being adjudicated.

I. Factual Background

Melchor Guevara entered the United States without inspec-
tion in 1987. After entering the United States, Guevara began
 GUEVARA v. HOLDER 7387
living and continues to live with his LPR daughter and his
two United States citizen grandchildren.

In October 1997, Guevara filed an application to adjust his
status from that of an undocumented alien to an LPR under
8 U.S.C. § 1255(i) (after receiving an approved I-130). After
filing his application, Guevara applied for and received his
employment authorization in January 8, 1998. While his
application for adjustment of status was pending, Guevara
requested permission to temporarily leave the United States
(i.e., advanced parole, 8 U.S.C. § 1182(d)(5)(A)); the request
was denied on September 29, 1999. Thus, Guevara was
required to stay in the United States pending the approval of
his application for adjustment of status or risk forfeiting his
application. On October 17, 2000, he was allowed to adjust
his status to an LPR.

On September 17, 2006, Guevara attempted to assist
another alien daughter and her child to enter the United States
unlawfully. Because of that conduct, Guevara was served (on
the same day) with a Notice to Appear in removal proceed-
ings. The government charged him with knowingly assisting
undocumented persons to enter the United States in violation
of Immigration and Nationality Act (INA) § 212(a)(6)(E)(i),
8 U.S.C. § 1182(a)(6)(E)(i).

During Guevara’s removal proceedings, he admitted to
assisting his daughter and grandchild to illegally enter the
United States. However, he also applied for cancellation of
removal. The immigration judge (IJ) found that Guevara was
eligible for cancellation of removal under INA § 240A (8
U.S.C. § 1229b). Specifically, the IJ found that Guevara met
the seven-year requirement for cancellation of removal,
because Guevara was granted the employment authorization
on January 8, 1998 and lived in the United States continu-
ously until the initiation of removal proceedings on Septem-
ber 17, 2006. The IJ held that, when the government granted
Guevara the opportunity to work in the United States, he was
7388 GUEVARA v. HOLDER
“admitted in any status.” In making this decision, the IJ found
Guevara’s circumstances similar to those of participants in the
Family Unity Program (FUP) and therefore applied the rea-
soning of Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th
Cir. 2006), to Guevara. The IJ also noted that Guevara was
denied advanced parole and thus required to remain in the
United States.

The government appealed the IJ’s ruling to the Board of
Immigration Appeals (BIA). The BIA, in an unpublished
decision, reversed the IJ’s decision. The BIA rejected the IJ’s
conclusion that receiving an employment authorization docu-
ment was comparable to being a participant in the FUP. The
BIA found that “the holding in Garcia-Quintero, supra,
involving an alien who was accepted into the FUP, does not
extend to an alien who was simply granted an [employment
authorization document].” The BIA further noted “we find the
respondent’s circumstances are distinct from a FUP benefi-
ciary who is eligible to depart the United States and return
pursuant to the FUP concept of ‘voluntary departure.’ ”
Instead, the BIA found Guevara ineligible for cancellation of
removal, because he had not met his seven years of continu-
ous residence, which it determined began on October 18, 2000,1
the date Guevara’s application for adjustment of status was
approved.

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 Board’s interpretations of ambiguous immigration stat-
utes, if the Board’s decision is a published decision. See
Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.
1
There is an inconsistency in the record of whether Guevara’s applica-
tion for adjustment of status was granted on the 17th or 18th of October.
 GUEVARA v. HOLDER 7389
2009). However, we need not defer to the BIA if the statute
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 for Guevara, a legal permanent resident alien
(who is inadmissible or deportable), to be eligible for cancel-
lation of removal, he 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.

The parties do not dispute that Guevara satisfied the first and
third requirements. We are required here only to decide at
what point Guevara has resided in the United States for a con-
tinuous period of seven years after being “admitted in any sta-
tus.” See 8 U.S.C. § 1229b(a)(2). The parties do not dispute
that the approval of Guevara’s adjustment of status would
make him “admitted in any status.” However, because his
application for adjustment of status was approved on October
17, 2000, Guevara cannot meet the requirement of seven con-
tinuous years of living in the United States based on his date
of adjustment. Therefore, we must decide whether Guevara
7390 GUEVARA v. HOLDER
was “admitted in any status,” when he received employment
authorization from the United States Citizenship and Immi-
gration Services (USCIS) on January 8, 1998 therefore pro-
viding him enough time for the requisite seven years.

While the phrase “admitted in any status” has not been
defined, the term “admitted” has. See 8 U.S.C.
§ 1101(a)(13)(A) (“lawful entry . . . after inspection and
authorization”). There is no dispute that Guevara does not
meet the statutory definition of admitted, because he entered
without inspection or authorization. See Vasquez de Alcantar
v. Holder, ___ F.3d ___, Slip op. at 7412-13 (9th Cir. June 3,
2011). The phrase “admitted in any status,” however, has not
been limited to the strict definition of “admitted.”2 In In re
Rosas-Ramirez, 22 I. & N. Dec. 616, 619 (B.I.A. 1999), the
BIA held that the term “admitted” included those who are
“lawfully admitted for permanent residence.” See also Matter
of Koljenovic, 25 I. & N. Dec. 219 (B.I.A. 2010). Again, in
Cuevas-Gaspar v. Gonzales, we held that, for purposes of sat-
isfying the seven years of continuous residence, a parent’s
LPR status is imputed to unemancipated minor children for
purposes of “admission.” 430 F.3d 1013, 1029 (9th Cir.
2005). Lastly, in Garcia-Quintero, we held that participation
in the FUP was equivalent to being “admitted in any status.”
455 F.3d at 1018-19. However, Guevara’s situation is not
directly analogous to any of these cases.

Regardless, Guevara argues that we should include aliens
who are granted employment authorization in the definition of
“admitted in any status.” He argues that the employment
authorization is the equivalent of the FUP acceptance held to
constitute admission in Garcia-Quintero, because he was
authorized by the government to stay in the United States
2
We note, however, that the Eleventh Circuit recently held for purposes
of waiver of removal under § 212(h), that the term “admitted” was limited
to the statutory definition of 8 U.S.C. § 1101(a)(13)(A). Lanier v. Holder,
631 F.3d 1363, 1366 (11th Cir. 2011).
 GUEVARA v. HOLDER 7391
pending the approval of his application for adjustment of sta-
tus. He argues that the fact that he was not allowed to leave
the United States when he requested advanced parole is fur-
ther evidence that this allowance granted him some status.3
We disagree. According the BIA limited deference under
Skidmore, we conclude that (1) a mere grant of employment
authorization does not, without more, confer status; (2)
employment authorization is not equivalent to participation in
the FUP; and (3) the term “unauthorized alien” only refers to
the eligibility to legally work, not to admission status.

Skidmore Deference

Because the BIA has not issued a precedential opinion on
whether the receipt of an employment authorization document
equates to admission, we need not accord the agency Chevron
deference. See Garcia-Quintero, 455 F.3d at 1012-13. In this
case, the BIA issued a unpublished, nonprecedential decision
finding that “the starting date for [Guevara’s] accumulation of
seven years of continuous physical presence . . . should not
begin on January 8, 1998, when . . . DHS[ ] issued him an
employment authorization document . . . . Rather, we con-
clude that the starting date for [Guevara’s] accumulation of
seven years of continuous physical presence was on October
18, 2000, the date on which [his] application for adjustment
of status was approved . . . .” The BIA found that the holding
in Garcia-Quintero, “does not extend to an alien who was
simply granted an [employment authorization document],”
because Guevara’s “circumstances are distinct from a FUP
beneficiary.” Although we find the BIA’s conclusions persua-
sive, its decision lacks a thorough and meaningful analysis.
Thus, we only accord the BIA decision some deference under
Skidmore. See Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir.
3
Guevara does not argue that the denial of advanced parole provided
him status. Thus, we do not address it here. We nevertheless note that
applying the date of denial would not have provided the requisite seven
years (September 29, 1999 to September 17, 2006).
7392 GUEVARA v. HOLDER
2010) (“[T]he weight of the Board’s decision depends on ‘the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronounce-
ments, 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)). With this limited deference
in mind, we analyze whether Guevara’s employment authori-
zation constituted admission “in any status.”

1. Grant of employment authorization does not constitute
“admission in any status”

[2] Guevara was granted authorization to accept employ-
ment pending the adjudication of his adjustment of status
application pursuant to 8 C.F.R. § 274a.12(c)(9). Regulation
8 C.F.R. § 274a.12 sets forth the classes of aliens authorized
to accept employment. The main three classes of aliens are:
(a) “Aliens authorized employment incident to status;” (b)
“Aliens authorized for employment with a specific employer
incident to status;” and (c) “Aliens who must apply for
employment authorization.” 8 C.F.R. § 274a.12. Subsection
(a) lists classes of aliens who are authorized employment inci-
dent to status. § 274a.12(a). This employment authorization is
granted without restriction. Id. All of the aliens described in
this section are either “admitted” or “granted” status. See 8
C.F.R. §§ 274a.12(a)(1) -(20). A sample of this group
includes (1) aliens who have been granted asylum,
§ 274a.12(a)(5); (2) any alien granted Temporary Protected
Status, § 274a.12(a)(12); and (3) any alien granted FUP bene-
fits, § 274a.12(a)(14).

Subsection (c) similarly allows aliens to receive employ-
ment authorization. However, these aliens are not granted
authorization “incident to status,” but must instead apply for
employment authorization. § 274a.12(c). Aliens listed in this
class may or may not have any legal status. For example, this
class of aliens includes (1) aliens (like Guevara) applying for
adjustment of status, § 274a.12(c)(9); (2) aliens against whom
 GUEVARA v. HOLDER 7393
a final order of removal exists, but who cannot be removed
due to the refusal of all designated countries,
§ 274a.12(c)(18); and (3) aliens applying for Temporary Pro-
tected Status, § 274a.12(c)(19).

[3] As noted above, 8 C.F.R. § 274a.12(c)(9) specifically
allows adjustment of status applicants, such as Guevara, to
request employment authorization while their application is
pending. 8 C.F.R. § 274a.12(c)(9). However, the authorization
for such employment is not mandated. 8 C.F.R.
§ 274a.13(a)(1). Instead, the USCIS grants such authorization
“within [its] discretion.” Id. Applicants under § 274a.12(c)
may also have their grant of employment authorization termi-
nated or revoked at any time under the criteria set forth in 8
C.F.R. § 274a.14, which includes, but is not limited to: (1) a
preset expiration date; (2) initiation of deportation proceed-
ings; (3) a showing of good cause; or (4) a showing that the
information in the application is not true and correct. 8 C.F.R.
§ 274a.14(a)-(b).

[4] The language in the statute and the regulations autho-
rizing employment do not support the proposition that aliens
provided this benefit are “admitted in any status.” There is no
language in the statute or regulations that suggests aliens, not
previously admitted, become “admitted,” when they are
granted employment authorization under 8 C.F.R.
§ 274a.12(c). There is nothing in case law, statutes, or admin-
istrative regulations which supports a finding that a grant of
employment authorization (to an alien not previously admit-
ted) is the equivalent to being admitted. As noted, § 274a.12
allows several classes of aliens to apply for employment
authorization. While subsection (a) applies exclusively to
aliens who have been admitted or granted status and states the
authorization is “incident to status,” subsection (c) does not.
Guevara falls under subsection (c). The class of aliens to
which Guevara belongs is not necessarily admitted nor has it
necessarily obtained lawful status. Without a clear mandate
7394 GUEVARA v. HOLDER
from Congress, we decline to extend the definition of “admit-
ted in any status” in this instance.4

2. Employment authorization is not equivalent to FUP
participation

We decline to extend the reasoning of Garcia-Quintero,
which addressed FUP beneficiaries, to all aliens who receive
employment authorization.5 Mere employment authorization
for adjustment of status applicants is not comparable to partic-
ipation in the FUP. Further, the employment authorization for
the two classes of aliens is not similar.

[5] As we discussed in Vasquez de Alcantar, the FUP was
enacted by Congress to assist a very narrow group of aliens.
Vasquez de Alcantar, Slip op. at 7420. In doing so, it set forth
4
Our dissenting colleague argues that, because the end result for both
classes of aliens is largely equivalent, that status is conferred (albeit not
necessarily equally) when employment is authorized. Dissent at 7400-01
(“It may be that those who are able to satisfy FUP entrance criteria enjoy
a more privileged status . . . .”). While the employment authorization may
provide some type of “authorization” or “status” for an alien to temporar-
ily remain in the United States pending his application for adjustment of
status, this benefit is not an admission. See, e.g., United States v. Bazar-
gan, 992 F.2d 844, 848 (8th Cir. 1993) (rejecting alien’s argument that a
grant of employment authorization as a consequence of his asylum petition
made him a legal alien for purposes of 18 U.S.C. § 922(g)(5)); United
States v. Orellana, 405 F.3d 360, 370 (5th Cir. 2005) (“Receipt of tempo-
rary benefits such as employment authorization or a temporary stay of
removal does not render an otherwise illegal alien’s presence lawful.”).
This temporary authorization to remain in the United States exists regard-
less of whether an alien is given the right to work but it is not equivalent
to being admitted. See, e.g., United States v. Ochoa-Colchado, 521 F.3d
1292, 1298 (10th Cir. 2008) (“[T]here is a distinction to be drawn between
tolerating an alien’s presence for a limited purpose and legalizing an
alien’s presence.”).
5
We do not address the effect of the BIA’s decision in Matter of Reza-
Murillo, 25 I. & N. Dec. 296 (B.I.A. 2010), which rejected this court’s
reasoning in Garcia-Quintero. Furthermore, the parties do not argue that
we must defer to the agency’s reinterpretation of “admitted in any status.”
 GUEVARA v. HOLDER 7395
heightened requirements for eligibility. Id. at 7420-21. The
FUP was enacted to prevent the separation of families and to
provide a means by which a qualifying family member
(already in the United States in illegal status) could eventually
apply for permanent resident status. See Immigration Act of
1990, Pub. L. No. 101-649, § 301. In contrast, Congress did
not have the same familial concerns in enacting the legislation
permitting a nonimmigrant to adjust his or her status to that
of a person admitted for permanent residence under 8 U.S.C.
§ 1255. It allowed aliens, who met certain criteria (work, fam-
ily, or otherwise), to apply for adjustment of status. However,
8 U.S.C. § 1255 does not entitle aliens, who entered without
inspection, to any admission “status” by reason of their appli-
cation alone. See Vasquez de Alcantar, Slip op. at 7417-18.

[6] Generally, aliens must have lawful status prior to
applying for adjustment of status. Congress, however, made
an exception for those aliens who entered without inspection.
See 8 U.S.C. § 1255(i). Section 1255(i) allows aliens (such as
Guevara), who were not previously admitted, to apply for
adjustment if they were the beneficiary of a visa petition filed
before April 30, 2001. Id. This exception, however, only con-
fers the right to apply. It does not suggest that the undocu-
mented alien becomes admitted due to the mere filing of the
application. If Congress intended for a status to be conferred
at the time of filing, it could have easily done so. Thus,
merely allowing all applicants (regardless of status) to work
while seeking adjustment cannot, without more, equate to
admission.

As we noted in Vasquez de Alcantar, in order for aliens to
be allowed to participate in the FUP, they must meet height-
ened eligibility requirements. Slip op. at 7420-21. In return,
they also have benefits that are not available to applicants for
adjustment of status. Id. While both groups are able to work,
the FUP provides additional benefits, most notably protection
from removal for a renewable two-year period (i.e., voluntary
7396 GUEVARA v. HOLDER
departure6). See Pub. L. No. 101-649 § 301; Garcia-Quintero,
455 F.3d at 1009. This benefit is not available to aliens with
pending adjustment of status applications. See 8 U.S.C.
§ 1255. These differences in both eligibility and benefits are
important in our consideration of whether to extend admission
status beyond that set forth in 8 U.S.C. § 1101(a)(13)(A).

[7] In Garcia-Quintero, our decision to allow FUP partici-
pants to qualify as admitted in any status was not based upon
the fact that FUP participants were allowed to work. 455 F.3d
1015-18. Our decision instead focused on the aliens’ accep-
tance into the FUP. Id. at 1015. As part of that acceptance, we
looked at Garcia-Quintero’s enrollment in the program, spe-
cifically noting that it provided protection from deportation
and that FUP beneficiaries “shall be inspected and admitted
in the same immigration status as the alien had at the time of
departure.” Id. at 1017-18 (emphases in the original). A
review of these eligibility requirements and resulting benefits
(as a whole) supported our conclusion that Congress intended
that FUP beneficiaries be “accorded a limited immigration
status.” Id. at 1018 & n.9. However, we have never discussed
each of those individual benefits and concluded that each
would be an independent basis for admission status. We again
decline to find that grant of one of those benefits — employ-
ment authorization — is equivalent to participation in the
FUP and thus an independent basis for admission status.

However, even if the individual benefit of employment
authorization for FUP beneficiaries were compared to Gue-
vara’s employment authorization, they are far from the same
authorization. If the agency intended the benefit to be the
6
The grant of FUP voluntary departure is not the same as voluntary
departure defined under 8 U.S.C. § 1229c. “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.”
Garcia-Quintero, 455 F.3d at 1017-18.
 GUEVARA v. HOLDER 7397
same, there was no need to separate the aliens into classes.
Compare 8 C.F.R. § 274a.12(a)(12) with § 274a.12(c)(19)
(separating classes for aliens granted Temporary Protected
Status versus aliens applying for Temporary Protected Status).
FUP beneficiaries are designated under subsection (a), which
authorizes employment “incident to status,” 8 C.F.R.
§ 274a.12(a), whereas Guevara’s employment authorization
was under subsection (c), which requires aliens to apply for
authorization, § 274a.12(c). Subsection (a), unlike subsection
(c) (as noted above), does not provide for any discretion in
granting or denying employment authorization, because such
aliens are allowed such authorization incident to their status.
See 8 C.F.R. § 236.15(d) (“An alien granted benefits under
the Family Unity Program is authorized to be employed in the
United States and will receive an employment authorization
document.” (emphasis added)). Moreover, unlike applicants
under subsection (c), the USCIS cannot terminate employ-
ment authorization for FUP beneficiaries or others aliens
included under subsection (a). See 8 C.F.R. § 274a.14. Thus,
the regulations set forth that the employment authorization
between the classes is distinct from each other.

We decline to interpret a commonality among these differ-
ent classes of aliens merely due to the possible end result —
a grant of a work permit. Thus, we conclude that, even look-
ing at this isolated benefit, there is no support for concluding
that Congress intended to make a whole class of aliens (not
inspected or authorized) “admitted” by the mere grant of an
employment authorization.

Our dissenting colleague points to the BIA’s decision in
Matter of Blancas-Lara, 23 I.&N. Dec. 458 (BIA 2002),
which holds that a nonimmigrant who was admitted to the
United States with a 72 hour border crossing card has satisfied
the requirement of having been “admitted in any status” for
the purposes of accruing the 7 years residency requirement
needed for cancellation of removal. Id. 459-60. The dissent
contends that it is “illogical” to allow such accrual of over-
7398 GUEVARA v. HOLDER
stayed time and deny accrual for undocumented immigrants
like Guevara who have work permits while waiting for adjust-
ment of status under 8 U.S.C. § 1255(i). The dissent over-
looks the key distinction, which is that Blancas-Lara satisfied
the statutory requirement of having been “admitted” by “law-
ful entry . . . after inspection and authorization.” See Matter
of Blancas-Lara, 23 I.&N. Dec. at 459-60 (citing 8 U.S.C.
§ 1101(a)(13)(A)). Here, the dissent does not dispute that
Guevara did not meet the statutory definition of “admitted”
under § 1101(a)(13)(A).

Although Blancas-Lara was unlawfully present in the
United States after his border crossing card expired, Congress
in 28 U.S.C. § 1229b(a)(2) did not include maintenance of
status as a prerequisite for relief. Rather, as the BIA in
Blancas-Lara recognized, “it chose only to require 7 years of
continuous residence after admission to the United States.” 23
I.&N. Dec. at 460.

There is nothing illogical about distinguishing between
Blancas-Lara, who was lawfully admitted to the United
States, from Guevara, who entered without inspection and
authorization and received employment authorization while
awaiting lawful status.

3. The term “unauthorized alien” does not suggest
admission

[8] Lastly, it seems that Guevara argues that the plain lan-
guage of the 8 C.F.R. § 274a.12(c)(9) provides status. Gue-
vara argues that the employment authorization provides
status, in part, based upon the language that “an alien will not
be deemed to be an ‘unauthorized alien.’ ”7 See 8 C.F.R.
7
An “unauthorized alien,” under 8 U.S.C. § 1324a(h)(3), “means, with
respect to the employment of an alien at a particular time, that the alien
is not at that time either (A) an alien lawfully admitted for permanent resi-
dence, or (B) authorized to be so employed by this chapter or by the Attor-
ney General.”
 GUEVARA v. HOLDER 7399
§ 274a.12(c)(9). This argument is not correct. This language
does not provide any admission status. Rather, it merely
allows an employer to legally hire an alien (whether admitted
or not) while his application is pending. See, e.g., 8 U.S.C.
§ 1324a. We find nothing in the statute or administrative reg-
ulation to provide for more.

PETITION FOR REVIEW DENIED.

FISHER, Circuit Judge, dissenting:

I respectfully dissent. In my view, under Garcia-Quintero
v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), Guevara was “ad-
mitted in any status” for purposes of 8 U.S.C. § 1229b(a)(2)
when the government exercised its discretion to grant his
application for employment authorization. The Immigration
Judge (IJ) correctly applied Garcia-Quintero in concluding
that Guevara is eligible for cancellation of removal. I would
grant the petition for review and remand for entry of an order
cancelling removal, consistent with the IJ’s decision.

I.

Section 1229b(a) allows the Attorney General to cancel
removal for aliens who (1) have accrued five years in legal
permanent resident (LPR) status, (2) have “resided in the
United States continuously for seven years after having been
admitted in any status,” and (3) have not been convicted of
any aggravated felony. At issue here is whether and when
Guevara was “admitted in any status” for purposes of
§ 1229b(a)(2). I would hold he received such an admission
when he was granted an employment authorization benefit
that is functionally very similar to the Family Unity Program
(FUP) acceptance held to constitute § 1229b(a)(2) admission
in Garcia-Quintero, 455 F.3d at 1018-19.
7400 GUEVARA v. HOLDER
I recognize that applicable regulations provide some basis
for distinguishing FUP beneficiaries from applicants for
adjustment of status under Immigration and Nationality Act
§ 245(i), 8 U.S.C. § 1255(i), like Guevara. Whereas 8 C.F.R.
§ 274a.12(a) makes FUP participants automatically eligible
for work authorization “incident to status,” subsection (c) of
that regulation requires applicants for adjustment of status to
apply for employment authorization. But the majority’s reli-
ance on this distinction misses the point. See Maj. Op. at
7392-94. The issue is not whether Guevara received employ-
ment authorization as a result of some existing status. This
case instead presents the converse question: whether status
was conferred on Guevara as a result of the discretionary
grant of employment authorization.

I would hold that it was. Once employment authorization
is granted under § 274a.12(c), it is largely equivalent to the
§ 274a.12(a) authorization to which FUP participants are enti-
tled: it allows the holder to live and work in the United States
openly and lawfully while his application for adjustment of
status is processed. Thus, although the employment authoriza-
tion Guevara received is formally distinguishable from the
employment authorization available to FUP beneficiaries,
Guevara’s authorization was substantially comparable to the
FUP benefit. Both the benefit Guevara received and the simi-
lar benefit available through the FUP implicitly authorize
temporary residency pending final resolution of the benefi-
ciary’s application to adjust status.

The majority distinguishes FUP beneficiaries from other
§ 245(i) applicants by pointing to the relatively stringent FUP
entrance criteria. See Maj. Op. at 7394-95. But the majority
does not explain how these heightened requirements for FUP
acceptance differentiate those ultimately allowed into the pro-
gram from applicants who are granted similar benefits. Differ-
ences in program entrance criteria are of little import after the
agency has exercised its discretion to grant the applicant ben-
efits. It may be that those who are able to satisfy FUP
 GUEVARA v. HOLDER 7401
entrance criteria enjoy a more privileged status than that of
§ 245(i) applicants granted work authorization, by virtue of
having passed through a more stringent selection process and
having received greater benefits. “Any” status is acceptable
for purposes of § 1229b(a)(2), however. Cf. United States v.
Ochoa-Colchado, 521 F.3d 1292, 1298 (10th Cir. 2008)
(acknowledging that even if employment authorization does
not make an alien’s presence legal, “[a]n alien who has filed
for adjustment of status and received an [employment authori-
zation document] may in some sense be ‘authorized’ to be in
the United States, inasmuch as he is granted a temporary
reprieve from removal proceedings and permitted to work
here pending the outcome of his case”).

I also recognize that FUP regulations allowing travel
abroad are more permissive than those governing advance
parole of § 245(i) applicants like Guevara, as was pointed out
in Vasquez de Alcantar v. Holder, No. 08-71427, filed con-
currently with this opinion. See Vasquez de Alcantar at
7422-23.1 Unlike a non-FUP applicant, a FUP program partic-
ipant may travel outside the United States and will upon
return be “admitted in the same immigration status as the
alien had at the time of departure.” 8 C.F.R. § 236.16. Non-
FUP applicants, by contrast, must apply for advance parole
before they may travel abroad, and the grant of advance
parole does not itself constitute an admission. See 8 U.S.C.
§ 1182(d)(5)(A). The very existence of an advance parole
application process implies that applicants like Guevara have
a legal benefit they stand to lose, however. In Guevara’s case,
that benefit was significant: if he left the United States with-
out permission, he risked being stripped of the employment
authorization the agency affirmatively exercised its discretion
to grant. Of course, given their more generous travel privi-
1
As I noted in my concurrence in Vasquez de Alcantar, I do not read
that opinion to address the issue in this case, so it does not foreclose the
conclusion I urge here. See Vasquez de Alcantar at 7424 (Fisher, J., con-
curring).
7402 GUEVARA v. HOLDER
leges, FUP beneficiaries may enjoy a more privileged status
than that of non-FUP employment authorization holders like
Guevara. However, that difference is irrelevant for purposes
of § 1229b(a)(2), which does not distinguish among different
sorts of status.

I am likewise unpersuaded that a grant of employment
authorization cannot constitute admission in any status under
Yepez-Razo v. Gonzales, 445 F.3d 1216, 1219 (9th Cir. 2006),
also cited in Vasquez de Alcantar. See Vasquez de Alcantar
at 20. Yepez-Razo recognized that after a FUP beneficiary is
accepted into the program, the time the beneficiary spends in
the program does not count as unlawful presence under 8
U.S.C. § 1182(h). See Yepez-Razo, 445 F.3d at 1218-20. As
I explain further below, however, those who receive discre-
tionary employment authorization benefits are also legiti-
mately present, notwithstanding the lack of similar statutory
language explicitly recognizing their lawful status.

In sum, the majority offers no convincing reason to distin-
guish this case from Garcia-Quintero. I would follow Garcia-
Quintero by holding that the discretionary grant of an
employment authorization constitutes § 1229b(a)(2) admis-
sion.

II.

The majority’s contrary conclusion — that undocumented
§ 245(i) applicants are not admitted in any status until their
§ 245(i) applications are approved — means that relatively
minor differences in the circumstances of the applicant’s entry
into the United States dramatically alter the application of
§ 1229b(a)(2).

In Matter of Blancas-Lara, the BIA held that nonimmi-
grants whose presence in the United States was once legal, no
matter how briefly, have been “admitted in any status.” See
Matter of Blancas-Lara, 23 I. & N. Dec. 458, 459-61 (B.I.A.
 GUEVARA v. HOLDER 7403
2002). Blancas-Lara concluded that a nonimmigrant who
entered with a border crossing card allowing him to stay in
the United States for 72 hours was admitted in any status at
the time of his lawful entry, and that subsequent years during
which the nonimmigrant remained in the United States ille-
gally could be counted toward § 1229b(a)(2)’s seven-year
requirement. See Blancas-Lara, 23 I. & N. Dec. at 459. It
would be illogical to allow nonimmigrants who overstay their
visas to accrue time toward the seven-year requirement during
their unlawful presence whereas undocumented aliens who
have been granted permission to work in the United States
during the pendency of their § 245(i) applications cannot do
the same. From a commonsense standpoint, the presence of a
§ 245(i) applicant who has been permitted to work in the
United States is more legitimate than the unlawful presence of
a nonimmigrant whose temporary visa has expired. But the
majority’s reasoning permits just such a result.

III.

I recognize that the BIA disagreed with the reasoning of
Garcia-Quintero in Matter of Reza-Murillo, 25 I. & N. Dec.
296 (B.I.A. 2010), although I leave for another day the recon-
ciliation of Garcia-Quintero and Reza-Murillo under National
Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967, 982-83 (2005), which the government
does not invoke. I do note, however, that I do not find persua-
sive Reza-Murillo’s insistence that “declining to treat a grant
of FUP benefits as an ‘admission’ . . . does not create absurd
or bizarre results.” Reza-Murillo, 25 I. & N. Dec. at 299.
Reza-Murillo does produce absurdities, by divorcing the accu-
mulation of time toward the seven-year requirement from the
apparent statutory goal of requiring accrual of legitimate pres-
ence. See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1027-
28 (9th Cir. 2005) (concluding that the § 1229b(a)(2) require-
ment “was designed to [allow for] counting a limited period
of time spent in non-permanent status”). As explained above,
Reza-Murillo and Blancas-Lara allow aliens who entered
7404 GUEVARA v. HOLDER
legally but soon after lapsed into illegal status to qualify for
cancellation of removal, while denying cancellation relief to
aliens like Guevara whose presence has long been recognized
and accepted by the Attorney General.

***

In sum, I would hold that, consistent with Blancas-Lara
and Garcia-Quintero, Guevara was “admitted in any status”
when the United States exercised its discretion to grant his
application for employment authorization. Because he
received such admission more than seven years before receiv-
ing a notice to appear, he was eligible for cancellation of
removal, which the IJ exercised his discretion to grant. I
would grant the petition for review and remand for reinstate-
ment of the IJ’s decision.