FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE RAUL GARCIA,
Petitioner, No. 08-73004
v.
Agency No.
A072-897-225
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 30, 2011—Pasadena, California
Filed November 2, 2011
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Richard Seeborg, District Judge.*
Opinion by Judge Gould
*The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
19835
19838 GARCIA v. HOLDER
COUNSEL
Kristen Jackson, Public Counsel Law Center, Los Angeles,
California, for the petitioner-appellant.
David H. Wetmore and Robbin Kinmonth Blaya, Office of
Immigration Litigation, Washington, D.C., for the
respondent-appellee.
OPINION
GOULD, Circuit Judge:
Jorge Raul Garcia (“Garcia”) petitions for review of the
Board of Immigration Appeals’s (“BIA”) dismissal of his
appeal of an Immigration Judge’s (“IJ”) decision denying his
application for cancellation of removal. The BIA concluded
that Garcia’s 1992 parole as a Special Immigrant Juvenile,
under 8 U.S.C. § 1255(h), did not qualify as an admission “in
any status” as required by 8 U.S.C. § 1229b(a)(2) and, as a
result, found Garcia statutorily ineligible for cancellation of
removal because he did not establish seven years of continu-
ous physical presence after having been “admitted in any sta-
tus.” We disagree and hold that parole as a Special Immigrant
Juvenile, under 8 U.S.C. § 1255(h), qualifies as an admission
“in any status” for the purposes of 8 U.S.C. § 1229b(a)(2).
We grant Garcia’s petition and remand to the BIA for further
proceedings consistent with our opinion.
I
A
Garcia was born in Mexico in 1984 to Mexican citizen par-
ents. Garcia had a difficult and tragic childhood in Mexico.
His father was incarcerated for murdering his mother, and in
GARCIA v. HOLDER 19839
his youth Garcia suffered a closed head injury, a type of trau-
matic brain injury. Garcia entered the United States without
inspection in 1992 and soon thereafter entered the foster care
system in California. His long-term social worker described
him as “respectful” and “good hearted.” Garcia was diag-
nosed with bi-polar disorder while in foster care. He went to
special education classes in school. He has been diagnosed
with diabetes and assessed as having “low-average” intelli-
gence. Garcia was emancipated from the foster care system in
2004 at the age of 20. He has a U.S. citizen child.
In April 1993, when Garcia was nine years old, the Los
Angeles County Department of Children and Family Services
(“DCFS”) filed a petition with the state juvenile dependency
court on behalf of Garcia because of allegations of severe
physical abuse. On July 15, 1994, the court found Garcia a
dependant child of the court, eligible for long-term foster
care. The court also found “that it would not be in the best
interests of the minor to be returned to his/her country of citi-
zenship or the country of habitual residence of his/her par-
ents.” The court ordered that the DCFS “make the necessary
application for special immigrant status as a permanent resi-
dent for [Garcia].”1 That month, DCFS’s Special Immigrant
Status Unit filed an immigration application on Garcia’s
behalf. The application included, inter alia, an I-360 Petition
for classification as a special immigrant and an I-485 Applica-
tion for adjustment to permanent resident status, based on
Garcia’s being an undocumented foster child/Special Immi-
grant Juvenile.
1
Under 8 U.S.C. § 1101(a)(27)(J), an immigrant is eligible for Special
Immigrant Juvenile Status if: (i) he has been declared dependent on a juve-
nile court and has been deemed eligible for long-term foster care due to
abuse, neglect, or abandonment; (ii) it has been determined in administra-
tive or judicial proceedings that it would not be in the child’s best interest
to be returned to his country of nationality or residence; and (iii) the Sec-
retary of Homeland Security expressly consents to the dependency order
serving as a precondition to the grant of special immigrant status. Garcia
was eligible for the Special Immigrant Juvenile Status.
19840 GARCIA v. HOLDER
On February 28, 2000, the immigration authorities
approved Garcia’s I-360 Petition and I-485 Application and
gave him Legal Permanent Resident (“LPR”) status. It took
more than five years for Garcia’s LPR status to be approved.
A likely source for that delay may have been his missing birth
certificate which was added to Garcia’s file in April 1999.
Garcia’s I-181 Memorandum of Creation of Record of Lawful
Permanent Residence, reflecting his approval for LPR status,
lists “92” in the field “Year Adm[itted] to U.S. or Year of
Change to present [Non-Immigrant] Class.”
B
Garcia was arrested on November 13, 2005, for stealing a
bicycle in Long Beach, California. The city prosecutor
charged him with a misdemeanor for grand theft of property
worth over $400, to which Garcia pleaded nolo contendere.
See Cal. Penal Code § 487(a) (2005). Garcia was found guilty
and received a suspended sentence of three years of summary
probation and twenty days in county jail. On December 28,
2005, Garcia was arrested for shoplifting from a Target store
in Manhattan Beach, California. Garcia was charged with
petty theft with prior convictions, and with giving false infor-
mation to a police officer. See Cal. Penal Code §§ 666,
148.9(a) (2005). He pleaded guilty to the theft charge, for
which he received a suspended sentence of three years of for-
mal probation and almost one year in county jail. The false
information charge was dismissed.
Relying on these two convictions, in October 2006, the
Department of Homeland Security (“DHS”) issued a Notice
to Appear (“NTA”) charging that Garcia was removable, pur-
suant to 8 U.S.C. § 1227(a)(2)(A)(ii), for having, after admis-
sion, been convicted of two crimes involving moral turpitude
not arising out of a single scheme of criminal misconduct.
Garcia admitted to the allegations in the NTA, conceded
removability, and sought cancellation of removal.
GARCIA v. HOLDER 19841
An LPR is eligible for cancellation of removal if: (1) he has
been “lawfully admitted for permanent residence for not less
than 5 years”; (2) he “has resided in the United States contin-
uously for 7 years after having been admitted in any status”;
and (3) he “has not been convicted of any aggravated felony.”
8 U.S.C. § 1229b(a). DHS opposed cancellation of removal
on the ground that Garcia lacked the required seven years of
continuous residence. Under the government’s interpretation,
the seven-year period ran from when Garcia received LPR
status in 2000. Nearly six years had lapsed between when the
California juvenile dependency court ordered DCFS’s Special
Immigrant Status Unit to file an immigration petition for Gar-
cia in 1994, and when immigration authorities ultimately
approved the petition. The government’s interpretation did not
credit any of that lapsed time, leaving Garcia narrowly short
of the required seven years when he was convicted for the
second theft offense in January 2006.
Garcia argued that he met the seven-year duration require-
ment on two separate grounds. First, Garcia contended that,
under § 1255(h), he was deemed paroled into the United
States—which counted as an admission “in any status” under
§ 1229b(a)(2)—upon the filing of his Special Immigrant Juve-
nile Status (“SIJS”)-based immigration application in 1994,
more than seven years before his second conviction. Second,
he contended that his “admission” for permanent resident sta-
tus could be imputed as of the date on which he became a
ward of the State of California, his legal guardian, in the same
way that such admission is imputed from a parent under
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir.
2005) (holding that “for purposes of satisfying the seven-
years of continuous residence ‘after having been admitted in
any status’ required for cancellation of removal under 8
U.S.C. § 1229b(a), a parent’s admission for permanent resi-
dent status is imputed to the parent’s unemancipated minor
children residing with the parent”). The IJ rejected these argu-
ments and denied cancellation of removal solely on the basis
19842 GARCIA v. HOLDER
that Garcia did not have the required seven years of continu-
ous residence.
The BIA affirmed. It reasoned that § 1255(h) provided that
a Special Immigrant Juvenile is deemed to have been “pa-
roled” into the United States for the purpose of adjustment of
status, but that, under the plain language of § 1255(a), which
permits the Attorney General to adjust the status of individu-
als who have been “inspected and admitted or paroled,” being
“paroled” into the United States is not the same as being “ad-
mitted.” It also declined to extend the holding of our prece-
dent in Cuevas-Gaspar to cover the legal guardianship
between the State and its ward, concluding that such a rela-
tionship is materially distinguishable from that between par-
ents and children. The BIA dismissed Garcia’s appeal, and
Garcia was removed to Mexico. Garcia petitions for a review
of the BIA’s decision.
II
The issues on review are (1) whether Garcia’s SIJS-based
parole for adjustment of status under § 1255(h) constitutes an
admission “in any status” for purposes of eligibility for can-
cellation of removal under § 1229b(a)(2), and (2) whether
Garcia should be imputed lawful admission from his legal
guardian, the State of California. 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.”2 Garcia-Quintero v. Gonzales, 455
F.3d 1006, 1011 (9th Cir. 2006).
2
The Government incorrectly states that the BIA’s conclusion that Gar-
cia did not establish the necessary seven years of continuous residence is
a factual finding reviewed for substantial evidence. As Garcia correctly
suggests in his reply brief, there are no disputed facts to be reviewed for
substantial evidence; only the legal significance of the undisputed facts is
at issue.
GARCIA v. HOLDER 19843
Where the statute is unambiguous and congressional intent
is clear “both the court and the agency must give effect to the
unambiguously expressed intent of Congress.” Id. at 1012
(quoting Chevron U.S.A. Inc. v. Natural Resources Def.
Council, 467 U.S. 837, 843-44 (1984) (internal quotation
marks omitted)). Where congressional intent is unclear, a
reviewing court must give deference to an agency’s statutory
interpretation provided it is not “arbitrary, capricious, or man-
ifestly contrary to the statute.” Chevron, 467 U.S. at 844.
“Chevron deference, however, does not apply to all statutory
interpretations issued by agencies.” Miranda Alvarado v.
Gonzales, 449 F.3d 915, 921 (9th Cir. 2006). An agency’s
statutory interpretation only “qualifies for Chevron deference
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 promul-
gated in the exercise of that authority.” United States v. Mead
Corp., 533 U.S. 218, 226-27 (2001).
“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.’ ” Garcia-Quintero, 455 F.3d at
1012 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999)). We give Chevron deference to BIA decisions that are
issued under a “lawmaking pretense,” a term borrowed from
the Supreme Court’s decision in Mead, 533 U.S. at 233, capa-
ble of binding third parties. Garcia-Quintero, 455 F.3d at
1012 (citing Miranda Alvarado, 449 F.3d at 922). We have
previously held, however, that BIA “interpretations promul-
gated in a non-precedential manner” do not carry the force of
law and are not subject to Chevron deference. Id. at 1012.
Because the BIA’s decision under review here is a single-
member unpublished decision, we do not give it Chevron def-
erence because the “authority to make rules with force of law
. . . was not invoked.” Mead, 533 U.S. at 237; see also
Garcia-Quintero, 455 F.3d at 1013 (quoting 8 C.F.R.
§ 1003.1(g) for the proposition that “only ‘selected decisions
19844 GARCIA v. HOLDER
of the [BIA] rendered by a three-member panel or by the
[BIA] en banc may be designated to serve as precedents’ ”).
Stated another way, if the BIA wants its decisions to be given
Chevron deference, it must decide with a three-judge panel or
en banc. An unpublished decision of a single board member
is not entitled to Chevron deference.
But that does not end our consideration of whether defer-
ence to the BIA’s decision is appropriate here. For even when
Chevron deference is unwarranted because of the nature of
the decision, we may accord deference under Skidmore v.
Swift & Co., 323 U.S. 134 (1944). Mead, 533 U.S. at 237.
Pursuant to Skidmore, a reviewing court “may properly
resort” to an agency’s interpretations and opinions “for guid-
ance,” as they constitute “a body of experience and informed
judgment.” Skidmore, 323 U.S. at 140. “The weight of such
a judgment in a particular case will depend upon the thor-
oughness evident in its consideration, the validity of its rea-
soning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade, if lack-
ing power to control.” Id. Where the BIA’s decision does not
give thorough reasoning, but instead is conclusory or lacks
meaningful analysis, we give that decision only limited defer-
ence. See Guevara v. Holder, 649 F.3d 1086, 1091 (9th Cir.
2011); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101
n.4 (9th Cir. 2011).
With these principles in mind, we consider the BIA’s con-
clusion that parole as a Special Immigrant Juvenile under
§ 1255(h) does not qualify as an admission “in any status” for
the purposes of eligibility for cancellation of removal under
§ 1229b(a).
III
A
The BIA dismissed Garcia’s appeal on the basis that (1)
under the plain language of the Immigration and Nationality
GARCIA v. HOLDER 19845
Act, being “paroled” into the United States is not the same as
being “admitted,” and that (2) Garcia had not otherwise per-
suaded it that his initial parole into the United States qualified
as an admission. This analysis was conclusory and did not
take into account that both we and the BIA have construed
“admitted in any status” as being broader than the statutorily-
defined term “admitted.” Nor did the BIA engage in a mean-
ingful analysis to support its conclusion that SIJS-parolees are
not admitted for the purposes of § 1229b(a)(2). Given its sum-
mary nature, the BIA’s analysis does not merit significant def-
erence. See Vasquez de Alcantar, 645 F.3d at 1101 n.4 (“We
afford little deference under Skidmore to the BIA’s analysis
in the present case, because it did not provide thorough rea-
soning and is conclusory.”). We next address what we con-
sider to be the controlling legal principles.
B
[1] The phrase “admitted in any status” is not defined in
the Immigration and Nationality Act (“INA”). The INA does,
however, define “admission” and “admitted” to mean “the
lawful entry of [an] alien into the United States after inspec-
tion and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). “This definition is clear and unambiguous
. . . [and] we need not defer to the BIA with regard to the
meaning of this term.” Vasquez de Alcantar, 645 F.3d at
1100. There is no dispute here that Garcia was not admitted
within the meaning of § 1101(a)(13)(A). See 645 F.3d at
1101.
[2] We have previously concluded, however, 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.” Garcia-Quintero,
455 F.3d at 1016; see also Matter of Rosas-Ramirez, 22 I. &
N. Dec. 616, 618 (BIA 1999) (declining to find “that refer-
ence to the definition of ‘admission’ and ‘admitted’ in
[§ 1101](a)(13)(A) adequately answers the question of the
19846 GARCIA v. HOLDER
intended scope of the term ‘admission’ in section
237(a)(2)(A)(iii)”). “[T]he clause ‘in any status’ has been
interpreted to create alternative methods for aliens, who do
not enter after inspection and authorization, to meet the
‘admitted in any status’ requirement of § 1229b(a)(2).”
Vasquez de Alcantar, 645 F.3d at 1100 (citing Cuevas-
Gaspar, 430 F.3d at 1029); see also, e.g., Garcia-Quintero,
455 F.3d at 1009 (holding that Garcia-Quintero’s “acceptance
into the Family Unity Program render[ed] him ‘admitted in
any status’ for the purposes of cancellation of removal”). This
brings us to the dispositive issue: We must decide whether
SIJS-parolees may be considered as having been “admitted in
any status” within the meaning of § 1229b(a)(2). If so, then
Garcia’s tenure of continuous residency is sufficient for eligi-
bility to be considered for cancellation of removal. If not, then
he is statutorily out of luck and without possible recourse to
cancellation of removal.
1
The Government argues that SIJS-parolees are not “admit-
ted in any status” under § 1229b(a)(2) because the plain lan-
guage of the INA shows that parole is different from
admission. The government points to the language of
§ 1101(a)(13)(B), which provides that “[a]n alien who is
paroled under [§ 1182(d)(5)3] . . . shall not be considered to
3
This section states:
(A) The Attorney General may, except as provided in subpara-
graph (B) or in section 1184(f) of this title, in his discretion
parole into the United States temporarily under such conditions
as he may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of
such alien shall not be regarded as an admission of the alien and
when the purposes of such parole shall, in the opinion of the
Attorney General, have been served the alien shall forthwith
return or be returned to the custody from which he was paroled
GARCIA v. HOLDER 19847
have been admitted,” to support its argument that no parolee
may qualify as being “admitted in any status.”
The government’s position is correct to a degree, but is not
persuasive because it does not take into account all of the per-
tinent statutory language. Garcia was “deemed . . . to have
been paroled” under § 1255(h)(1), not paroled under
§ 1182(d)(5). Circuit and BIA precedent establish that, in the
immigration context, not all paroles are treated equally. The
definition, scope, and the consequences of parole may vary
based on the wording and placement of a particular statutory
provision. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111,
1116 (9th Cir. 2007) (holding that “conditional parolees”
under § 1226(a) are not “paroled into the United States”
within the meaning of § 1182(d)(5)(A)); Matter of Castillo-
Padilla, 25 I. & N. Dec. 257, 258 (BIA 2010) (holding that
“conditional parole” under § 1226(a)(2)(B) is a “distinct and
different procedure” from “parole” under § 1182(d)(5)(A)).
[3] Parole under § 1255(h)(1) is different from parole
under § 1182(d)(5). The plain language of § 1255(h) does not
indicate that SIJS-parolees shall be considered paroled under
§ 1182(d)(5), nor that SIJS-parolees shall receive a parole
card pursuant to § 1182(d)(5), as required by regulation. 8
C.F.R. § 235.1(h)(2); see Ortega-Cervantes, 501 F.3d at 1116
(finding “no indication that the government intended to parole
Ortega-Cervantes into the United States pursuant to
§ 1182(d)(5)(A)” where the government did not “make[ ] its
and thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United
States.
(B) The Attorney General may not parole into the United
States an alien who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with
respect to that particular alien require that the alien be paroled
into the United States rather than be admitted as a refugee under
section 1157 of this title.
19848 GARCIA v. HOLDER
intention clear, for example, by expressly referencing
§ 1182(d)(5)(A) and by issuing an I-94 card.”). That the INA
provides that those paroled under § 1182(d)(5) “shall not be
considered to have been admitted,” then, does not speak
clearly, if at all, to whether Garcia as a SIJS-parolee may be
considered to have been “admitted in any status” under
§ 1229b(a).
[4] Congress did not include SIJS-parolees in its express
preclusion of § 1182(d)(5) parolees from admission eligibil-
ity. Under the doctrine of expressio unius est exclusio
alterius, the statute’s express preclusion of parolees under
§ 1182(d)(5) from admission, while remaining silent on the
admission status of other parolees, could indicate that Con-
gress intended not to preclude non-specified parolees from
being considered to be admitted. See Washington v. Chu, 558
F.3d 1036, 1044 (9th Cir. 2009) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quoting Beach v. Fed. Bank, 523
U.S. 410, 418-19 (1998) (internal quotation marks omitted)
(emphasis omitted))). In this light, the precedents provided by
the Government to show that parolees are more widely barred
from being considered to have been admitted are unpersuasive
because they stem from cases specifically involving parole
under § 1182(d)(5) or from former phrases within the immi-
gration code; none of them explicitly discusses SIJS-based
parole, and so none is very helpful on the issue presented to
us.
[5] We conclude then that SIJS-based parolees are not
expressly barred by Congress from being considered to have
been “admitted in any status,” and we next examine whether
SIJS-based parole qualifies as one of the “alternative methods
for aliens . . . to meet the ‘admitted in any status’ require-
ment” for cancellation of removal. Vasquez de Alcantar, 645
F.3d at 1101.
GARCIA v. HOLDER 19849
2
Garcia contends that his SIJS-based parole is soundly anal-
ogous to the DHS action in Garcia-Quintero that we held
conferred admission “in any status” for the purposes of can-
cellation of removal. He contends that case law and legislative
purpose support a conclusion that his SIJS-based parole was
also an admission “in any status.”
[6] In Garcia-Quintero, we concluded that Garcia-
Quintero’s acceptance into the Family Unity Program
(“FUP”) rendered him “admitted in any status” for purposes
of eligibility for cancellation of removal under § 1229b(a)(2).
455 F.3d at 1009. We reasoned that acceptance into the pro-
gram gave unique benefits for a narrow group of aliens,
including protection from deportation and authorization to
work, and was “designed to help families stay together while
the beneficiaries adjust to LPR status.” Id. at 1009-10. Evalu-
ating extant BIA precedent on the meaning of “in any status,”
we there concluded that the “limited benefits and protections”
of the FUP gave its beneficiaries a status. Id. at 1018. We
took note that the section of the FUP regulations governing
travel outside of the United States included the terms “status”
and “admitted.” Id.
Since then we have twice considered aliens’ requests to
extend the holding of Garcia-Quintero to other situations, and
our opinions declining to do so have refined the criteria neces-
sary to conclude that a DHS action creates an alternative
method for an alien to meet the “admitted in any status”
requirement. In Vasquez de Alcantar, we held that neither the
filing nor the approval of an alien’s Form I-130 Petition for
Alien Relative, which allows him to apply for adjustment of
status, creates an alternative method of admission. 645 F.3d
at 1102. We also rejected the analogy between I-130 petitions
and acceptance into the FUP. Id. at 1103-4. We stressed, first,
that FUP beneficiaries are distinct from I-130 visa petition
beneficiaries because FUP participants “are provided congres-
19850 GARCIA v. HOLDER
sionally mandated benefits,” including protection from depor-
tation and employment authorization, and “must meet
additional requirements for eligibility.” Id. at 1104. We
observed, second, that the FUP had exclusions from eligibility
inapplicable to I-130 beneficiaries. Id. at 1105. We noted,
third, that the FUP regulations gave beneficiaries under the
program an “immigration status” by authorizing travel outside
the United States, whereas “admission status connected to
advanced parole for other adjustment of status applicants is
specifically precluded by 8 U.S.C. § 1182(d)(5)(A).” Id.
Fourth, we considered it relevant that Congress had clarified
the extra protection afforded to FUP beneficiaries in subse-
quent statutory enactments. Id. at 1106. Based on these fac-
tors, we concluded that, by enacting the FUP, Congress
“provided mandatory protections and benefits to a distinct
group of aliens while they await adjustment of status.” Id.
However, the case law, statutes, and regulations governing
Form I-130 petitioners “d[id] not support a holding that bene-
ficiaries of approved I-130 visa petitions should be given
admission status.” Id.
In an opinion filed the same day as Vasquez de Alcantar,
we similarly concluded that employment authorization does
not create an alternative method for an alien to meet the “ad-
mitted in any status” requirement. Guevara, 649 F.3d at 1094.
In so holding, we reasoned that “the FUP was enacted by
Congress to assist a very narrow group of aliens” and set forth
heightened eligibility requirements. Id. at 1093. We noted that
the program’s purpose was “to prevent the separation of fami-
lies and to provide a means by which a qualifying family
member . . . could eventually apply for permanent residence
status.” Id. We clarified that Garcia-Quintero “was not based
upon the fact that FUP participants were allowed to work . . .
[but] instead focused on the aliens’ acceptance into the FUP.”
Id. at 1093-94. Employment authorization was more provi-
sional for Guevara than for FUP participants. Guevara
received authorization pending his application for adjustment
of status. See 8 C.F.R. § 274a.12(c)(9). Unlike other provi-
GARCIA v. HOLDER 19851
sions conferring authorization incident to preexisting status,
§ 274a.12(c) applies to aliens who “may or may not have any
legal status.” 649 F.3d at 1092. Employment authorization for
aliens in that residual category could be “terminated or
revoked at any time” for certain reasons. Id. We concluded
that there was 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.” Id.
[7] Under the principles established in Garcia-Quintero
and the cases that have followed it, we perceive that SIJS-
based parolees are similarly situated to FUP participants and
qualify as having been “admitted in any status.” As is the case
for FUP participants, SIJS-parolees are a narrow class of juve-
nile aliens who must meet heightened eligibility requirements
to apply to be classified as a Special Immigrant Juvenile, and
SIJS-based parole affords particular benefits. To qualify for
SIJS, an alien must be declared to be a court dependant eligi-
ble for long-term foster care due to abuse, neglect, or aban-
donment, and a judge or administrative body must find that it
is not in the juvenile’s best interest to return to his country of
nationality. § 1101(a)(27)(J). The Secretary of Homeland
Security must also consent to the grant of SIJS. Id. Like FUP
beneficiaries, SIJS-based parolees gain special benefits set by
Congress. These include the permission to remain in the coun-
try pending the outcome of their adjustment of status applica-
tion, employment authorization, exemption from certain
inadmissibility grounds applicable to other aliens, and, under
amendments made after Garcia’s LPR application was pro-
cessed, expeditious adjudication of their LPR application. See
Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991, Pub. L. No. 102-232, § 302, 105 Stat.
1733, 1744-45 (codified at § 1255(h)(2)(B)) (waiving certain
admissibility requirements); William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008, Pub. L. No.
110-457, § 235(d)(1)-(3), 122 Stat. 5044, 5079-80 (codified at
§§ 1101, 1255) (providing, inter alia, that the DHS must adju-
19852 GARCIA v. HOLDER
dicate SIJS applications “not later than 180 days after the date
on which the application is filed”).
[8] These special eligibility requirements and benefits
show a congressional intent to assist a limited group of abused
children to remain safely in the country with a means to apply
for LPR status. Such an intent, while not identical to that
involved in Garcia-Quintero, is analogous to Congress’s goal,
in enacting the FUP, of “prevent[ing] the separation of fami-
lies and [providing] a means by which a qualifying family
member . . . c[an] eventually apply for permanent residence
status.” Guevara, 649 F.3d at 1093 (discussing rationale
behind Garcia-Quintero’s holding). A Special Immigrant
Juvenile like Garcia does not have the same family to be kept
together that was involved in Garcia-Quintero, because the
state and foster homes are his family. But he was given simi-
lar special recognition and opportunity to make contacts in
this country, and for that reason should not be wrenched away
without adequate process. That Congress has subsequently
mandated expeditious adjudication of SIJS applications may
be viewed as a clarification by Congress that it does in fact
desire extra protection for SIJS-eligible minors. The Vasquez
de Alcantar court noted that similar subsequent statutory
enactments to the FUP were relevant to the holding in Garcia-
Quintero. 645 F.3d at 1106.
Congress’s extension of certain protections to FUP partici-
pants and SIJS parolees gives those narrow groups of aliens
strong claims to remain in this country. Our decisions in
Vasquez de Alcantar and Garcia emphasized that the much
broader groups of aliens who have filed I-130 petitions or
sought employment authorization are entitled only to a chance
to seek admission. Those groups have much weaker claims to
remain in this country. An I-130 petitioner seeks admission
and legal status, but is not entitled to it. Even an approved I-
130 petition is only an intermediate and contingent step
toward admission. See Vasquez de Alcantar, 645 F.3d at 1103
(citing Unites States v. Elrawy, 448 F.3d 309, 313-14 (9th Cir.
GARCIA v. HOLDER 19853
2006); Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.
2005)). Aliens seeking employment authorization under 8
C.F.R. § 274a.12(c) pending adjustment of status enjoy simi-
larly provisional benefits. Immigration authorities have dis-
cretion to grant or deny authorization, and may revoke an
earlier authorization for certain reasons not applicable here.
See Guevara, 649 F.3d at 1092 (citations omitted). Congress’s
decision to permit certain undocumented aliens to seek adjust-
ment of status “only confers the right to apply.” Id. at 1093.
For these groups of aliens, the completion of an intermediate
step toward admission does not render them “admitted in any
status.”
Subtle differences between the FUP and SIJS regulations
do not undermine our conclusion that SIJS-based parole is an
alternative method of admission. Our decision in Garcia-
Quintero had found it important that the FUP regulations gov-
erning travel outside the United States used the terms “status”
and “admitted” together. 455 F.3d at 1018. The regulations,
which permitted an FUP beneficiary to be readmitted with the
same status upon re-entry after travel abroad, confirmed our
conclusion that “acceptance into the FUP confers some type
of immigration status.” Id.; see 8 C.F.R. § 236.16. The regula-
tions and provisions governing SIJS-based parole, by contrast,
do not mention “status” and “admission” together. See 8
C.F.R. § 204.11 (referring only to “special immigrant status”
and “special immigrant juvenile status”).
It is not surprising that the SIJS regulations do not mention
admission, as the FUP regulations do. The FUP regulations
permit beneficiaries to travel abroad without penalty, although
they must seek prior authorization. That policy furthers the
FUP’s goal of keeping families together in this country, while
allowing them to maintain ties to familial and social networks
in their countries of origin. By contrast, SIJS-based parolees’
claims to remain in this country derive from their status as
juvenile dependants of the court and their lack of viable fam-
ily ties. Cf. 8 C.F.R. § 204.11(a). Such parolees are unlikely
19854 GARCIA v. HOLDER
to have occasion to travel abroad while their applications are
pending and they remain dependants of the court. There
would be no need for regulations governing the status they
would enjoy upon re-entry after travel abroad. While we
found the FUP regulations’ text persuasive in reaching our
holding in Garcia-Quintero, we did not think it as materially
significant as statutory text, legislative intent, and case law.
See 455 F.3d at 1018-19. The absence of analogous provi-
sions in the SIJS regulations does not persuade us that Con-
gress intended to deny SIJS-based parolees eligibility for
cancellation of removal.
[9] Because SIJS-based parole is analogous to one of the
“alternative methods for aliens . . . to meet the ‘admitted in
any status’ requirement” for cancellation of removal, we hold
that the grant of SIJS-based parole qualifies as an admission
“in any status” for cancellation of removal purposes. See
Vasquez de Alcantar, 645 F.3d at 1100. On this basis Garcia
has accrued the required seven years of continuous presence
after being “admitted in any status,” and he is eligible for can-
cellation of removal.4 We grant the petition for review and
remand to the BIA for further proceedings consistent with this
opinion.
PETITION GRANTED.
4
Because we conclude that Garcia was, upon his designation as a SIJS-
parolee, “admitted in any status” for the purposes of § 1229b(a)(2), we
need not and do not reach the question of whether under Cuevas-Gaspar
Garcia should be imputed lawful admission from his legal guardian, the
State of California.