FAJARDO ESPINOZA

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Matter of Mario A. FAJARDO ESPINOZA, Respondent
Decided June 8, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A grant of Family Unity Program benefits does not constitute an “admission” to the
United States under section 101(a)(13)(A) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued
the requisite 7 years of continuous residence after having been “admitted in any status” to
be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C.
§ 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed.
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed.
FOR RESPONDENT: Martin Zaehringer, Esquire, Ventura, California
BEFORE: Board Panel: PAULEY and GREER, Board Members; O’HERRON,
Temporary Board Member.
PAULEY, Board Member:
In a decision dated May 7, 2013, an Immigration Judge found the
respondent removable under section 237(a)(2)(B)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), as an alien convicted
of a controlled substance violation, denied his applications for cancellation
of removal and voluntary departure, and ordered him removed from the
United States. The respondent has appealed from that decision. The appeal
will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States without inspection in 1996. On November 13, 2002, while he
was in the United States, the respondent was granted Family Unity Program
(“FUP”) benefits. His status was later adjusted to that of a lawful
permanent resident on April 25, 2005.
On September 4, 2012, the respondent was convicted of possession of a
controlled substance in violation section 11377(a) of the California Health
and Safety Code, based on a guilty plea to the charge that he committed the
offense on June 14, 2011. As a result, the Department of Homeland
Security (“DHS”) issued a notice to appear on March 11, 2013, charging

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the respondent with removability as an alien convicted of a violation of a
State law relating to a controlled substance.
The Immigration Judge determined that the respondent was removable
based on the conviction documents included in the record. He also
concluded that the respondent was ineligible for cancellation of removal
because, at the time he committed the removable offense, he had not
accrued 7 years of continuous residence in the United States “after having
been admitted in any status,” as required by section 240A(a)(2) of the
Act, 8 U.S.C. § 1229b(a)(2) (2012). The Immigration Judge denied the
respondent’s request for voluntary departure as a matter of discretion.
The respondent contends that he is not removable as charged because
the conviction documents do not establish that he was convicted of a
controlled substance violation. He also argues that his grant of FUP
benefits in 2002 should constitute an “admission” and that he therefore
accrued the requisite continuous residence to establish eligibility for
cancellation of removal under section 240A(a)(2) of the Act. Finally, the
respondent challenges the Immigration Judge’s denial of his request for
voluntary departure.
II. ANALYSIS
A. Removability
The respondent’s conviction record includes a minute order and
felony complaint, which establish that he pled guilty to possession of
methamphetamine, a federally controlled substance, in violation of section
11377(a) of the California Health and Safety Code. The Immigration Judge
concluded that this record supported a finding that the respondent is
removable under section 237(a)(2)(B)(i) of the Act as an alien convicted of
a controlled substance violation. We agree. See Coronado v. Holder, 759
F.3d 977, 984–86 (9th Cir. 2014) (holding that section 11377(a) is divisible
and that “[w]here the minute order or other equally reliable document
specifies that a defendant pleaded guilty to a particular count of a criminal
complaint, the court may consider the facts alleged in the complaint”).
B. Cancellation of Removal
To be eligible for cancellation of removal, the respondent must
establish, inter alia, that he “resided in the United States continuously for
7 years after having been admitted in any status.” Section 240A(a)(2)
of the Act. According to section 240A(d)(1) of the Act, continuous
residence is deemed to end when an alien has committed a certain type of

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offense that renders him removable. In 2011, the respondent committed a
removable offense under section 237(a)(2)(B)(i), which stopped the accrual
of his continuous residence. The question before us is whether his period
of residence began in 2005, when he adjusted his status, or in 2002, when
he was granted FUP benefits.
Although the respondent was present in the United States in 2002, the
Immigration Judge determined that his continuous residence did not
commence at that time because the grant of FUP benefits does not
constitute an “admission” as defined in section 101(a)(13)(A) of the Act,
8 U.S.C. § 1101(a)(13)(A) (2012).1 In reaching this conclusion, the
Immigration Judge applied our holding in Matter of Reza, 25 I&N Dec. 296
(BIA 2010). The respondent contends that Matter of Reza was wrongly
decided and that we should instead follow Garcia-Quintero v. Gonzales,
455 F.3d 1006 (9th Cir. 2006), a decision of the United States Court of
Appeals for the Ninth Circuit, in whose jurisdiction this case arises. We
conclude that our more recent precedent should control in this case.
Prior to Matter of Reza, the Ninth Circuit held that a grant of
FUP benefits constitutes being “admitted in any status” for purposes of
establishing eligibility for cancellation of removal. Garcia-Quintero
v. Gonzales, 455 F.3d at 1018−20. The focus of the court’s decision, which
was rendered without the benefit of our reasoning in Reza, was more on the
question whether a grant of FUP benefits conferred a “status” than on
whether it constitutes an “admission.” We do not dispute that an alien who
was granted FUP benefits has a “status” for immigration purposes. See
Matter of Blancas, 23 I&N Dec. 458, 460 (BIA 2002) (describing the broad
definition of the phrase “in any status,” as used in section 240A(a)(2) of the
Act). However, we also do not consider the court’s finding regarding the
term “admission” to have been dictated by the plain or unambiguous
language of the statute. See Garcia-Quintero v. Gonzales, 455 F.3d at
1018−19.
We respectfully believe that our subsequent precedent decision in Reza
is reasonable and therefore entitled to deference under Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 982–83 (2005) (“A court’s prior judicial construction of a statute
trumps an agency construction otherwise entitled to Chevron deference
only if the prior court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency
discretion.”).
1 According to section 101(a)(13)(A) of the Act, “The terms ‘admission’ and ‘admitted’
mean, with respect to an alien, the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.”

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The Supreme Court’s analysis in Chevron consists of two steps that
courts routinely apply when reviewing an agency’s interpretation of a
statute. First, the court analyzes the statutory language to determine
whether it is ambiguous. If the statute allows for more than one reasonable
interpretation, the agency’s interpretation controls unless it is unreasonable.
The Ninth Circuit accords Chevron deference to our reasonable legal
interpretation of an ambiguous statute only if we publish our decision or
rely on a directly controlling published decision. Uppal v. Holder, 605
F.3d 712, 714 (9th Cir. 2010). When a conflict in statutory interpretation
exists between Board precedent and case law of the circuit in which the
case arises, we, like the courts, must apply the first step of Chevron to
determine whether to apply the law of the circuit or our own precedent.
See, e.g., Matter of Douglas, 26 I&N Dec. 197, 199–200 (BIA 2013).
In certain circumstances, we have determined that the statutory scheme
as a whole requires that the otherwise clear and unambiguous definition of
the terms “admitted” and “admission” in section 101(a)(13)(A) of the Act
must yield, specifically where absurd or bizarre results would otherwise
ensue. See Matter of Chavez-Alvarez, 26 I&N Dec. 274, 276−77
(BIA 2014), rev’d on other grounds, Chavez-Alvarez v. Att’y Gen. of U.S.,
783 F.3d 478 (3d Cir. 2015). The Ninth Circuit has taken a similar
approach. See, e.g., United States v. Hernandez-Arias, 757 F.3d 874, 880
(9th Cir. 2014); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1100−01
(9th Cir. 2014) (stating that the definition of the term “admitted” is “clear
and unambiguous,” but examining “alternative methods” for interpreting
the phrase “admitted in any status”). We must decide whether, in order to
avoid absurd results, an alien granted FUP benefits should be deemed to
have been “admitted in any status,” notwithstanding the otherwise clear
statutory definition of the term “admitted.”
In Garcia-Quintero, the Ninth Circuit concluded that being granted
FUP benefits constitutes being “admitted in any status.”2 Garcia-Quintero
v. Gonzales, 455 F.3d at 1020. Although the court expressly considered the
“plain meaning” of the phrase “admitted in any status,” it did so in
conjunction with other factors, including the legislative history of the
statute and both our precedent decisions and its own case law, rather than
concluding that the plain meaning alone was unambiguous. Id. at 1018–19.
Subsequently, in Garcia v. Holder, 659 F.3d 1261, 1270 (9th Cir. 2011),
a case involving a Special Immigrant Juvenile parolee, the court
summarized the factors it considered in Garcia-Quintero when determining
that an alien’s grant of FUP benefits constitutes being “admitted in any
status.” These factors included that (1) FUP participants are accorded
2 The Ninth Circuit expressly accorded a low level of deference under Skidmore v. Swift
& Co., 323 U.S. 134 (1944), to our prior unpublished decision in that case.

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congressionally mandated benefits; (2) the FUP applies to a narrow class
of aliens subject to heightened eligibility requirements; (3) the FUP
regulations gave participants an immigration status; and (4) Congress
later clarified and reauthorized the FUP. Applying those factors, the
Ninth Circuit concluded that being granted parole as a Special Immigrant
Juvenile also constituted being “admitted in any status.” Id. at 1272.
Significantly, the Ninth Circuit explained in Garcia that a Special
Immigrant Juvenile parolee, like an alien granted FUP benefits, was not
“admitted” under the clear and unambiguous definition of that term in
section 101(a)(13)(A) of the Act. Id. at 1267. However, the court applied
its own jurisprudence interpreting the phrase “admitted in any status” in
section 240A(a)(2) of the Act, taking into consideration the court’s view of
congressional intent within the broader statutory scheme of the Act. Id. at
1269−72.
We agree with the Ninth Circuit that the “clear and unambiguous”
definition of the terms “admitted” and “admission” in the Act must yield in
certain circumstances. However, we have only so construed these terms in
the context of adjustment of status and then only to avoid absurd or bizarre
results. Matter of Reza, 25 I&N Dec. at 299–300; see also, e.g., Matter of
Chavez-Alvarez, 26 I&N Dec. at 276–77 (holding that an alien’s adjustment
of status constitutes an “admission” for purposes of removability for having
been convicted of an aggravated felony after admission). For example,
consistent with this narrow tailoring, we have found that a grant of asylum
status does not constitute an admission. Matter of V-X-, 26 I&N Dec. 147,
150–52 (BIA 2013).
For all of these reasons, we respectfully disagree with the Ninth
Circuit’s conclusion that the phrase “admitted in any status” includes a
grant of FUP benefits. Therefore, in the interest of uniformity, we will
apply our holding in Matter of Reza nationwide.
Likewise, for the reasons stated in Matter of Reza and Matter of V-X-,
we also disagree with the respondent’s alternative contentions that,
notwithstanding the statutory requirements of section 101(a)(13)(A) of the
Act, other applications or procedures should qualify as admissions,
including the filing of a visa petition or the submission of a biometric
information form in conjunction with an application for FUP benefits.
See also Guevara v. Holder, 649 F.3d 1086, 1091 (9th Cir. 2011) (holding
that a grant of employment authorization pending adjustment of status does
not constitute “admission in any status”); Vasquez de Alcantar v. Holder,
645 F.3d at 1102 (holding that approval of a visa petition does not
constitute “admission in any status”). As our published decisions
demonstrate, adjustment of status may qualify as an “admission” without
satisfying the definition in section 101(a)(13)(A) because of the bizarre and

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absurd consequences that would otherwise result. See Matter of
Chavez-Alvarez, 26 I&N Dec. at 276−77; Matter of V-X-, 26 I&N Dec. at
150–51; Matter of Alyazji, 25 I&N Dec. 397, 399 (BIA 2011); Matter of
Reza, 25 I&N Dec. at 298; Matter of Rodarte, 23 I&N Dec. 905, 908
(BIA 2006); see also Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014). That
is not the case here.
C. Voluntary Departure
The Immigration Judge denied the respondent’s request for voluntary
departure as a matter of discretion. Therefore the respondent’s argument
regarding his statutory eligibility for voluntary departure does not
meaningfully challenge the Immigration Judge’s decision. In any case, the
respondent’s 2012 controlled substance conviction renders him ineligible
for voluntary departure under section 240B(b)(1)(B) of the Act, 8 U.S.C.
§ 1229c(b)(1)(B) (2012), because it precludes him from demonstrating that
he has been a person of good moral character for the last 5 years.3
See section 101(f)(3) of the Act.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
3 Proceedings before the Immigration Judge started and ended within 1 year of the
respondent’s 2012 conviction. Therefore, even if the Ninth Circuit were to consider the
relevant period of good moral character to be 5 years prior to the respondent’s initial
voluntary departure request, rather than treating the application as a continuing one, the
bar would apply. Cf. Aragon-Salazar v. Holder, 769 F.3d 699 (9th Cir. 2014) (requiring
an alien to demonstrate good moral character only during the 7-year period before filing
an application for special rule cancellation of removal).