Garcia-Quintero v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO GARCIA-QUINTERO, 
Petitioner, No. 03-73930
v.
 Agency No.
A70-743-609
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 9, 2006—Pasadena, California
Filed July 24, 2006
Before: Michael Daly Hawkins, Susan P. Graber, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Graber
8231
GARCIA-QUINTERO v. GONZALES 8235
COUNSEL
Gary Finn, Indio, California, for the petitioner-appellant.
Peter D. Keisler, Linda S. Wendtland, and Shelley R. Goad,
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for the
respondent-appellee.
OPINION
PAEZ, Circuit Judge:
Petitioner Pedro Garcia-Quintero petitions for review of the
Board of Immigration Appeals’s (“BIA” or “Board”) order
that found him removable for alien smuggling, and ineligible
for cancellation of removal due to his failure to accrue seven
years of continuous residence in the United States after being
“admitted in any status.” At the removal hearing, Garcia-
Quintero’s counsel attempted to assert the Fifth Amendment’s
right against self-incrimination on behalf of Garcia-Quintero.
The immigration judge (“IJ”), however, required Garcia-
Quintero to assert his Fifth Amendment right himself, but
allowed his attorney to advise him about when to exercise this
right. After invoking the Fifth Amendment several times,
Garcia-Quintero admitted that he tried to help his goddaughter
unlawfully enter the United States. On the basis of this testi-
mony, the IJ ordered Garcia-Quintero removed for having
engaged in alien smuggling.
Garcia-Quintero appealed the IJ’s ruling to the BIA. In
addition to challenging the IJ’s procedure for invoking the
Fifth Amendment, Garcia-Quintero moved to remand his case
so the IJ could consider his application for cancellation of
removal. In an unpublished order, the BIA rejected his appeal,
and also denied his motion because it determined that he
8236 GARCIA-QUINTERO v. GONZALES
failed to satisfy the seven-year continuous residence require-
ment for cancellation of removal. In its ruling, the BIA con-
cluded that Garcia-Quintero’s status as a beneficiary of the
Family Unity Program (“FUP”) did not render him “admitted
in any status” for the purposes of cancellation of removal.
The BIA’s decision denying the motion to remand involves
an interpretation of the interplay between the FUP and the
cancellation of removal statute, 8 U.S.C. § 1229b. As a pre-
liminary matter, we hold that the BIA’s unpublished non-
precedential decision does not merit Chevron deference. The
decision, however, is eligible for some deference under Skid-
more. As for the merits of Garcia-Quintero’s claim for cancel-
lation of removal, he raises an issue of first impression in this
circuit as well as in most of our sister circuits1—whether his
acceptance into the Family Unity Program renders him “ad-
mitted in any status” for the purposes of cancellation of
removal. We hold that it does, and therefore determine that
Garcia-Quintero is eligible for cancellation of removal.
Finally, we examine the merits of Garcia-Quintero’s claim
that the IJ violated his Fifth Amendment rights when the IJ
required him to personally invoke his right against self-
incrimination, and therefore the removal proceeding should
have been terminated. We conclude that on the record here,
where the IJ allowed Garcia-Quintero’s counsel to advise him
when to invoke the privilege, and where Garcia-Quintero had
successfully done so in response to several questions, the IJ
did not violate his Fifth Amendment rights, and thus the
removal proceeding was proper. We therefore grant the peti-
tion in part and remand, and deny in part.
1
The Fifth Circuit has addressed this issue in an unpublished opinion.
See Diaz v. Ashcroft, 108 Fed.Appx. 972 (5th Cir 2004) (per curiam).
GARCIA-QUINTERO v. GONZALES 8237
I. Background
Garcia-Quintero, a citizen of Mexico, entered the United
States unlawfully in 1986, and has resided here for the last
twenty years. He is married to a lawful permanent resident
(“LPR”), and has four LPR children and several United States
citizen grandchildren. He has no criminal record. In 1993,
Garcia-Quintero was accepted into the FUP.
The Family Unity Program was created to implement cer-
tain provisions of the Immigration Act of 1990, Pub. L. No.
101-649, § 301, 101 Stat. 4978 (“IMMACT 90”), which is set
out as a note in 8 U.S.C. § 1255a. The regulations governing
the FUP are contained in 8 C.F.R. § 236. The FUP permits
qualified alien spouses or unmarried children of legalized
aliens, who entered the United States before 1988 and have
continuously resided in the United States since that time, to
apply for the benefits of the program, which include protec-
tion from deportation and authorization to work in the United
States.2
As the name implies, the FUP is designed to help families
stay together while the beneficiaries adjust to LPR status.
FUP beneficiaries are granted a two-year period of protection
from deportation, which the regulation terms “voluntary
departure.” 8 C.F.R. § 236.15(c). An FUP beneficiary may
2
Section 301(a) provides that:
[A]n alien who is an eligible immigrant (as defined in subsection
(b)(1)) as of May 5, 1988, who has entered the United States
before such date, who resided in the United States on such date,
and who is not lawfully admitted for permanent residence, the
alien— (1) may not be deported or otherwise required to depart
from the United States . . . and (2) shall be granted authorization
to engage in employment in the United States and be provided an
“employment authorized” endorsement or other appropriate work
permit.
Pub. L. No. 101-649, § 301 (2006).
8238 GARCIA-QUINTERO v. GONZALES
apply to extend this grant of voluntary departure so long as he
remains eligible for the program. 8 C.F.R. § 236.15(e). An
FUP beneficiary may also apply to travel outside the United
States. 8 C.F.R. § 236.16. Upon return from authorized travel,
an FUP beneficiary, provided he remains admissible, is “ad-
mitted in the same immigration status as the alien had at the
time of departure, and shall be provided the remainder of the
voluntary departure period previously granted under the Fam-
ily Unity Program.” Id.
Garcia-Quintero extended his status as an FUP beneficiary
in 1995, and became an LPR in 1998. In June 2001, Garcia-
Quintero received a Notice to Appear in Removal Proceed-
ings, which charged him with being removable as an alien
smuggler because he “knowingly, induced, assisted, abetted,
or aided [another] alien to enter or to try to enter the United
States in violation of [§ 212(a)(6)(E)(i) of the Immigration
and Nationality Act (‘INA’)].”
At the removal hearing, counsel for the Immigration and
Naturalization Service (“INS”)3 called Garcia-Quintero, its
only witness, to testify. Before the direct examination began,
Garcia-Quintero’s attorney informed the IJ that he had
advised his client “to claim the benefit of his Fifth Amend-
ment right not to incriminate himself . . . if he is asked to tes-
tify as to his role in any alien smuggling.” The IJ allowed the
attorney to confer with and advise Garcia-Quintero, but
required Garcia-Quintero to assert his Fifth Amendment right
himself. Through an interpreter, Garcia-Quintero answered
questions regarding his background, but then invoked his
Fifth Amendment right when the Government asked him
whether he had traveled to Mexico in June 2001, and whether
he had been charged with any criminal violations that year.
3
On March 1, 2003, the INS was abolished, and its functions were trans-
ferred to the newly created Department of Homeland Security. See
Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003). Because
the INS existed at the time of Garcia-Quintero’s hearing, we refer to the
INS, or “Government,” in this opinion.
GARCIA-QUINTERO v. GONZALES 8239
After invoking the Fifth Amendment in response to these
questions, Garcia-Quintero answered the Government’s ques-
tions concerning the June incident. He testified that an immi-
gration officer detained him and his goddaughter at the port
of entry in Calexico because he tried to help her cross the bor-
der into the United States by presenting false documents to
the immigration inspector. When the Government completed
its examination, Garcia-Quintero’s attorney declined to ask
him any questions, but stated that it was unfair that he was not
permitted to assert the Fifth Amendment on behalf of his cli-
ent. The attorney, however, also stated that he could not point
to anything to show that Garcia-Quintero did not understand
that he was incriminating himself by testifying about the June
incident. Based upon Garcia-Quintero’s testimony, the IJ
determined that he knowingly participated in alien smuggling,
and was therefore subject to removal.
Garcia-Quintero appealed the IJ’s decision to the BIA,
arguing that because his counsel was not allowed to assert the
Fifth Amendment privilege for him, the IJ forced Garcia-
Quintero to incriminate himself in violation of the Fifth
Amendment. Moreover, because his testimony was the only
evidence the Government presented, Garcia-Quintero argued
that his removal hearing should have been terminated given
the Fifth Amendment violation. He also requested that his
appeal be reviewed by a three-member panel of the BIA.
While the appeal was pending, Garcia-Quintero filed a
motion to remand to the immigration court so that the IJ could
consider his application for cancellation of removal pursuant
to 8 U.S.C. § 1229b.4 Garcia-Quintero argued that he was eli-
4
Cancellation of removal is available, at the Attorney General’s discre-
tion, for an LPR who is inadmissible or deportable if he:
(1) has been an alien lawfully admitted for permanent residence
for not less than 5 years,
(2) has resided in the United States continuously for 7 years after
having been admitted in any status, and
8240 GARCIA-QUINTERO v. GONZALES
gible for cancellation of removal because, as a consequence
of his 1993 acceptance into the FUP, he was “admitted in any
status,” and therefore he satisfied the residence requirement
by having resided continuously in the United States for seven
years. Along with his motion, Garcia-Quintero submitted a
declaration in which he remorsefully admitted to the conduct
underlying the charge of alien smuggling.
In a one-member unpublished order, the BIA dismissed
Garcia-Quintero’s appeal and denied his motion to remand.
The BIA determined that the IJ did not err in requiring
Garcia-Quintero to invoke personally his Fifth Amendment
right against self-incrimination, on a question-by-question
basis, and thus his testimony was properly considered. The
BIA further held that Garcia-Quintero failed to establish his
prima facie eligibility for cancellation of removal. Because he
became an LPR in 1998 and his residency ended in 2001,
when he received the Notice to Appear, the BIA concluded
that Garcia-Quintero had not resided continuously in the
United States for seven years after having been “admitted in
any status.” In so holding, the BIA rejected Garcia-Quintero’s
argument that he was first admitted when he was accepted
into the FUP in 1993. Garcia-Quintero timely petitioned for
review of the BIA’s decision.
II. Discussion
A. Judicial Review of the BIA’s Decision
Standard of Review
Where, as here, the BIA reviews de novo the IJ’s decision,
our review is limited to the decision of the BIA. Hernandez
(3) has not been convicted of any aggravated felony.
18 U.S.C. § 1229b(a) (2006). It is uncontested that Garcia-Quintero meets
the first and third requirements; rather, the focus of his motion to remand,
and this appeal, was the second prong.
GARCIA-QUINTERO v. GONZALES 8241
v. Ashcroft, 345 F.3d 824, 832 (9th Cir. 2003). We review for
abuse of discretion the BIA’s denial of a motion to remand.
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
However, we review de novo the BIA’s determination of
questions of law, except to the extent that deference is owed
to its interpretation of the governing statutes and regulations.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004), cert.
denied, 543 U.S. 1052 (2005).
Chevron Deference
[1] As previously noted, in denying Garcia-Quintero’s
motion to remand, the BIA determined that the FUP benefi-
ciary status does not render one “admitted in any status” for
the purposes of cancellation of removal. Thus, the initial
question presented is whether we should accord the BIA’s
decision in this case the deferential review prescribed by the
Supreme Court in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984).
In Chevron, the Supreme Court established a two-pronged
framework for judicial review of administrative agency inter-
pretations of the statutes and regulations that it administers.
467 U.S. at 842-43; Wilderness Soc’y v. U.S. Fish & Wildlife
Serv., 353 F.3d 1051, 1059 (9th Cir. 2003) (en banc). If con-
gressional intent is clear, both the court and the agency must
“give effect to the unambiguously expressed intent of Con-
gress.” Chevron, 467 U.S. at 843. If, however, Congress has
not directly addressed the exact issue in question, a reviewing
court must defer to the agency’s construction of the statute so
long as it is reasonable. Id. In other words, unless an agency’s
statutory interpretation is “arbitrary, capricious, or manifestly
contrary to the statute,” id. at 844, the agency is accorded
Chevron deference, and the court must adopt the agency’s
view.
[2] “Chevron deference, however, does not apply to all stat-
utory interpretations issued by agencies.” Miranda Alvarado
8242 GARCIA-QUINTERO v. GONZALES
v. Gonzales, 449 F.3d 915, 921 (9th Cir. 2006). In United
States v. Mead Corp., 533 U.S. 218, 226-27 (2001), the
Supreme Court elucidated the scope of Chevron, holding that
Chevron deference applies only “when it appears that Con-
gress delegated authority to the agency generally to make
rules carrying the force of law, and that the agency interpreta-
tion claiming deference was promulgated in the exercise of
that authority.” (emphasis added). Mead thus placed crucial
“limits [on] Chevron deference owed to administrative prac-
tice in applying a statute,” clarifying that agency interpreta-
tions promulgated in a non-precedential manner are “beyond
the Chevron pale.” Id. at 226, 234; see also Hall v. EPA, 273
F.3d 1146, 1156 (9th Cir. 2001) (“Interpretations of the Act
set forth in such non-precedential documents are not entitled
to Chevron deference.”).
It is well-established that Congress delegated to the BIA
the authority to promulgate rules, on behalf of the Attorney
General, that carry the force of law “through a process of
case-by-case adjudication.” INS v. Aguirre-Aguirre, 526 U.S.
415, 425 (1999) (internal quotation marks omitted) (holding
that Chevron deference applies to the BIA based on the statu-
tory allocation of power laid out by Congress in the INA); see
also 8 C.F.R. § 1003.1(d)(1). Thus, the focus of our inquiry
in this case is on the latter part of Mead’s limitation on
Chevron—whether the BIA’s decision in this case “was pro-
mulgated in the exercise of that authority,” Mead, 533 U.S. at
227, i.e., whether the BIA’s decision had a “lawmaking pre-
tense” that binds third parties, Miranda Alvarado, 449 F.3d at
922 (internal quotation marks omitted). As discussed below,
because the BIA’s decision was an unpublished disposition,
issued by a single member of the BIA, which does not bind
third parties, we conclude that it does not carry the force of
law.
[3] In light of Mead, the “essential factor” in determining
whether an agency action warrants Chevron deference is its
precedential value. Miranda Alvarado, 449 F.3d at 922; see
GARCIA-QUINTERO v. GONZALES 8243
also High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 648
(9th Cir. 2004) (refusing to accord Chevron deference when
the agency was “not acting in a way that would have prece-
dential value for subsequent parties”). Despite Garcia-
Quintero’s request that his appeal be reviewed by a three-
member panel of the BIA, his appeal and motion were
reviewed by a single member of the BIA, on behalf of the
BIA, pursuant to 8 C.F.R. § 1003.1(e)(5). Under 8 C.F.R.
§ 1003.1(e)(5), a single board member is charged with the
task of deciding an appeal and issuing a brief order, unless the
member determines that an opinion is necessary and therefore
designates the case for decision by a three-member panel
under § 1003.1(e)(6). A case must be decided by a three-
member panel if it presents “[t]he need to establish a prece-
dent construing the meaning of laws, regulations, or proce-
dures.” 8 C.F.R. § 1003.1(e)(6)(ii). The BIA’s Practice
Manual reiterates this requirement that three-member panels
decide precedential cases. See BIA Prac. Man., Ch. 1.3(a)(i)
(rev. 6/15/04) (“[A] single Board Member decides cases
unless the case falls into one of six categories that require a
decision by a panel of three Board Members [such as] the
need to establish a precedent construing the meaning of laws,
regulations or procedures.”) (emphases added), available at
http://www.usdoj.gov/eoir/bia/qapracmanual/apptmtn4.htm.
Moreover, only “selected decisions of the Board rendered by
a three-member panel or by the Board en banc may be desig-
nated to serve as precedents.” 8 C.F.R. § 1003.1(g). Because
the BIA decision in this case does not fall into either category,
it is non-precedential.
[4] The unpublished designation of the decision also makes
it clear that it was not issued pursuant to the BIA’s authority
to make rules that carry the force of law. See In re Garcia-
Quintero, 2003 WL 23216738 (B.I.A. Order Sept. 23, 2003)
(stating at the top of the decision “**THIS IS AN UNPUB-
LISHED DECISION THAT CANNOT BE CITED**”).
Again, according to the Board’s own internal policies,
“[u]npublished decisions are binding on the parties to the
8244 GARCIA-QUINTERO v. GONZALES
decision but are not considered precedent for unrelated
cases.” BIA Prac. Man., Ch. 1.4(d)(ii) (rev. 6/15/04). Because
unpublished decisions “lack precedential value,” this court,
and other circuits, have declined to give them deferential
treatment under Chevron. Chan v. Reno, 113 F.3d 1068, 1073
(9th Cir. 1997) (refusing to defer to an unpublished disposi-
tion that, “by the INS’s own regulations . . . carr[ies] no pre-
cedential weight”); see also Cruz v. Attorney Gen. of U.S.,
___ F.3d ___, 2006 WL 1687393, at *8 (3d Cir. 2006) (recog-
nizing that unpublished BIA decisions are not designated as
precedential); Ajdin v. Bureau of Citizenship & Immigration
Servs., 437 F.3d 261, 264-65 (2d Cir. 2006) (per curiam)
(“[U]npublished opinions of the BIA have no precedential
value.”); Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005)
(“[A]n unpublished opinion [issued by the Attorney General]
. . . has no precedential force.”); Hernandez, 345 F.3d at 839
n.13 (refusing to give Chevron deference to an unpublished
BIA decision because it “was not designated as preceden-
tial”); Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir.
1993) (“We will not bind the BIA with a single non-
precedential, unpublished decision any more than we our-
selves are bound by our own unpublished orders.”).
The Government argues that the Supreme Court’s decision
in Aguirre-Aguirre suggests that the BIA’s decision in this
case merits Chevron deference. 526 U.S. 415. In Aguirre-
Aguirre, the Court accorded Chevron deference to an unpub-
lished BIA decision that interpreted the meaning of a “serious
nonpolitical crime,” as contained in a prior version of 8
U.S.C. § 1253. Despite the facial similarity between Aguirre-
Aguirre and the present case, key distinctions defeat the Gov-
ernment’s argument. First, Aguirre-Aguirre was issued before
Mead, and therefore the BIA’s order in that case was not sub-
ject to the limitations that Mead placed on the breadth of
Chevron. Although Mead cited Aguirre-Aguirre, the Supreme
Court did not affirm, or even mention, the application of
Chevron to unpublished BIA decisions. Rather, in a footnote,
the Mead Court cited Aguirre-Aguirre, along with twenty-five
GARCIA-QUINTERO v. GONZALES 8245
other cases, to support its statement that “the overwhelming
number of our cases applying Chevron deference have
reviewed the fruits of notice-and-comment rulemaking or for-
mal adjudication.” 533 U.S. at 230; see id. at 230 n.12.
Second, and more importantly, the unpublished order in
Aguirre-Aguirre relied on a statutory interpretation of “seri-
ous nonpolitical crime” that the BIA had adopted in an earlier
precedential decision.5 526 U.S. at 418. That is, the precise
issue of statutory interpretation had been answered by the
BIA in a published decision that carried the force of law.
Additionally, the BIA already had rejected, in a different pre-
cedential decision, the interpretation that the court of appeals
adopted in lieu of the BIA’s approach. See id. at 425 (stating
that because the BIA, in Matter of Rodriguez-Coto, 19 I. & N.
Dec. 208, 209-10 (B.I.A. 1985), rejected an approach that
takes into account evidence of persecution, the appellate court
erred in considering the risk of persecution).
In Garcia-Quintero’s case, however, both parties concede
that the BIA has never issued a published decision addressing
the precise question at issue. Although the BIA’s order cited
several published BIA decisions, none of them sets forth a
binding interpretation of the question at issue. In sum, unlike
in Aguirre-Aguirre, the BIA’s decision in Garcia-Quintero’s
case was not compelled by precedent.
[5] In denying Garcia-Quintero’s motion, the BIA did not
issue a precedential interpretation of the relevant FUP statu-
tory provisions, although it could have done so. See Her-
nandez, 345 F.3d at 839 n.13. In light of Mead, our case law,
the BIA’s governing regulations, and its internal policies and
practices, the unpublished single-member order makes clear
that the BIA issued a decision that lacked the force of law.
5
See Matter of McMullen, 19 I. & N. Dec. 90 (B.I.A. 1984), aff’d, 788
F.2d 591 (9th Cir. 1986).
8246 GARCIA-QUINTERO v. GONZALES
Therefore, we do not accord Chevron deference to the BIA’s
decision in this case.
Skidmore Deference
[6] The Supreme Court has made clear, however, that
Chevron deference is not the only type of deference available
to an agency interpretation of its governing statutes or regula-
tions. Mead, 533 U.S. at 237 (“[T]he range of statutory varia-
tion has led the Court to recognize more than one variety of
judicial deference.”); Hall, 273 F.3d at 1156 (“[A]n agency
interpretation that is not accorded Chevron deference still may
be entitled to a respect proportional to its power to persuade.”
(internal quotation marks omitted)). Forty years before Chev-
ron, the Supreme Court addressed how courts should treat
non-binding agency interpretations, recognizing that “while
not controlling upon the courts by reason of their authority,
[these interpretations] do constitute a body of experience.”
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The Court
in Skidmore held that “[t]he weight of such a judgment in a
particular case will depend upon the thoroughness evident in
its consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.”
Id.
Given Mead’s holding that “Chevron left Skidmore intact
and applicable where statutory circumstances indicate . . .
[the] authority to make rules with force of law . . . was not
invoked,” we must undertake a Skidmore assessment of the
BIA’s decision to determine whether it warrants deference.
533 U.S. at 237; see also Padash v. INS, 358 F.3d 1161, 1168
n.6 (9th Cir. 2004) (suggesting that “Skidmore rather than
Chevron,” is the proper level of deference to accord a non-
precedential BIA decision). As discussed below, our Skid-
more assessment counsels against adopting the BIA’s
interpretation in this case.
GARCIA-QUINTERO v. GONZALES 8247
B. An FUP beneficiary is “admitted in any status”
In light of Skidmore, we must examine the validity of the
BIA’s reasoning, its thoroughness, and overall persuasive-
ness. To do so, we turn to the heart of Garcia-Quintero’s
appeal from the denial of his motion to remand—whether
acceptance into the Family Unity Program renders Garcia-
Quintero “admitted in any status” for cancellation of removal
purposes. In answering this question in the negative, the BIA
provided two discrete reasons—(i) Garcia-Quintero was not
“admitted in any status” under the definition of “admitted” in
§ 1101 of the INA, 8 U.S.C. § 1101(a)(13); and (ii) Congress
has not manifested an intent to construe FUP beneficiaries as
having been “admitted.” As explained below, because neither
of these reasons is persuasive, we reject the BIA’s position
and conduct a de novo review of the question.
[7] Although the BIA is correct that Garcia-Quintero’s
enrollment into the FUP did not literally comport with the
INA’s definition of “admitted,” both this court and the BIA,
in precedential decisions, have not limited the scope of “ad-
mitted” to this strict definition. Rather, we and the BIA have
held that there are circumstances outside the bounds of the
INA’s definition in which an alien may nonetheless be “ad-
mitted.” Under the INA, an alien is “admitted” if he under-
goes a “lawful entry . . . into the United States after inspection
and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13). Because Garcia-Quintero was already in the
United States, the BIA determined that his entrance into the
FUP did not constitute an admission into this country, and
therefore he was not “admitted in any status.”
The BIA’s analysis suffers fatally from its limited reading
of “admitted”—a constraint which it has not applied in other
decisions. In In re Rosas-Ramirez, for example, the BIA held
that the attainment of LPR status constitutes admission, even
when an alien entered without inspection. 22 I. & N. Dec. 616
8248 GARCIA-QUINTERO v. GONZALES
(B.I.A. 1999);6 see also Ocampo-Duran v. Ashcroft, 254 F.3d
1133, 1134-35 (9th Cir. 2001) (rejecting as “overly narrow”
the petitioner’s claim that he was never “technically” admitted
to the United States because he entered without inspection).
This court recently looked beyond the INA’s definition of
admission in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,
1029 (9th Cir. 2005), and held that an LPR parent’s admission
can be imputed to the parent’s unemancipated minor child,
who resides with the parent, for the purposes of satisfying the
same cancellation of removal requirement at issue in this case
—seven years of continuously residing in the United States
after having been “admitted in any status.” In so holding, this
court acknowledged that there are instances where an alien is
“admitted,” for the purposes of § 1229b(a)(2), without having
been inspected and authorized to enter the United States at the
border. Id. at 1028.
In Cuevas-Gaspar, we further determined that our under-
standing of “admitted” comports with the legislative purpose
of cancellation of removal. Section 212(c), the predecessor to
§ 1229b, required an alien seeking relief from removal to
have “lawful unrelinquished domicile of seven consecutive
years.” Id. at 1027. This requirement caused much confusion
among the executive and judicial branches—the BIA and
courts of appeals disagreed about the status necessary to sat-
isfy this requirement. Id. Ultimately, Congress designed the
dual requirement of a five-year legal permanent residency and
6
Although Rosas-Ramirez illustrates that the BIA has not always con-
fined “admission” to the definition in 8 U.S.C. § 1101(a)(13), we do not,
as the dissent suggests, base our conclusion that the BIA’s analysis here
is unpersuasive on this case alone. We recognize that Rosas-Ramirez
involved LPR, rather than FUP, status, and therefore does not directly
apply to the present case. Nonetheless, in light of the BIA’s ruling in
Garcia-Quintero’s case, it is noteworthy that the BIA, in other contexts,
has determined that an act of “admission” need not always satisfy the lit-
eral terms of the definition. Rosas-Ramirez, 22 I. & N. Dec. at 623
(“[T]hat definition does not set forth the sole and exclusive means by
which admission to the United States may occur under the Act.”).
GARCIA-QUINTERO v. GONZALES 8249
seven-year continuous residence in any status, § 1229b(a)(1)-
(2), “to clear up prior confusion and to strike a balance
between the conflicting interpretations . . . by counting a lim-
ited period of time spent in non-permanent status while still
requiring at least five years of permanent resident status.” Id.
at 1028.
This legislative history combined with the fact that
§ 1229b(b)(1)(A) requires non-permanent residents to be
physically present for at least ten years immediately preceding
the date of application for cancellation of removal, led this
court in Cuevas-Gaspar to conclude that “admission” is not
limited to the definition listed in 8 U.S.C. § 1101(a)(13). If it
were, LPRs would have a more onerous residence require-
ment than non-permanent residents, thereby “frustrating Con-
gress’s well-established policy of affording [the former] more
benefits than [the latter].” Id. Although this legislative history
does not reveal congressional intent regarding the FUP, it
does show that Congress did not intend to limit “admission”
to physical entry and inspection, leaving open the possibility
of admission by other means.7
[8] In light of Cuevas-Gaspar, and BIA precedent, admis-
sion is not always limited to inspection and authorization at
the point of entry. Therefore, the BIA’s reasoning—that
Garcia-Quintero was not “admitted” because his receipt of
7
The Government contends that § 301(f) of IMMACT 90 clearly shows
that Congress did not intend participation in the FUP to constitute an
admission. We disagree. Section 301(f) states that “[n]othing in this sec-
tion shall be construed as authorizing an alien to apply for admission to,
or to be admitted to, the United States in order to obtain benefits under
this section.” (emphasis added). The plain meaning of subsection (f)
merely bars aliens residing outside the United States on the date of
IMMACT 90’s enactment from entering the country in order to apply for
FUP status. Therefore, while the dissent correctly notes that § 301(f) was
intended to limit the number of aliens that are “admitted to” the United
States, the limitation, contrary to the dissent’s assertion, only applies to
aliens who, unlike Garcia-Quintero, did not reside in the United States at
the time the FUP was instituted.
8250 GARCIA-QUINTERO v. GONZALES
FUP status “could not have involved his entry into the United
States after inspection and authorization by an immigration
officer”—is unpersuasive. This, however, does not end our
inquiry, because we have addressed only the first word in the
phrase “admitted in any status.” We next consider whether
being an FUP beneficiary constitutes “any status” for cancel-
lation of removal purposes.
Although not mentioned by the BIA in its decision in this
case, the BIA has, in a precedential decision, discussed exten-
sively the meaning of “in any status.” See In re Blancas-Lara,
23 I. & N. Dec. 458, 461 (B.I.A. 2002). In Blancas-Lara, the
BIA held that the period of an alien’s residence in the United
States as a nonimmigrant counts in calculating the seven years
of continuous residence for cancellation of removal purposes.
Id. at 460. Although the case involved LPR-imputed resi-
dence, the BIA expressly declined to reach that issue, and
instead found that “under the plain meaning of the statutory
language, the respondent’s period of residence after his
admission as a nonimmigrant . . . may be considered in calcu-
lating the period of continuous residence for purposes of sec-
tion 240A(a)(2).” Id. at 459. As a result, the nonimmigrant
was eligible for cancellation of removal, even though he, like
Garcia-Quintero, had been an LPR for less than seven years.
In so holding, the BIA analyzed the meaning of “in any sta-
tus.” It stated:
Although no specific definition of the word “status”
is included in section 101 of the [INA], it is gener-
ally defined in the legal context as a “[s]tanding;
state or condition,” and as “[t]he legal relation of
[an] individual to [the] rest of the community.”
Black’s Law Dictionary 1264 (5th ed. 1979). “Sta-
tus” is a term of art, which is used in the immigration
laws in a manner consistent with the common legal
definition. It denotes someone who possesses a cer-
tain legal standing, e.g., classification as an immi-
GARCIA-QUINTERO v. GONZALES 8251
grant or nonimmigrant. The use of the word “any” to
modify the word “status” indicates that Congress
intended section 240A(a)(2) to include admissions of
nonimmigrants as well as immigrants. Thus, the
plain language of section 240A(a)(2) encompasses
nonimmigrants admitted to the United States who
thereafter reside in the United States for at least 7
years.
Id. at 460. In Blancas-Lara, the BIA determined that a nonim-
migrant, who was admitted for only a temporary period with
a border crossing card, could use his date of admission as the
beginning of his continuous residence for cancellation of
removal purposes because of his “status” as a nonimmigrant.
The BIA’s analysis in Blancas-Lara weighs heavily in
Garcia-Quintero’s favor. As he argues in his brief to this
court, it surely would be odd for the BIA to hold that although
a nonimmigrant temporarily in the United States can accumu-
late time for cancellation of removal purposes, an FUP benefi-
ciary, who has maintained that status for four years while
applying for adjustment to LPR status—the very purpose of
the program—cannot.
As previously mentioned, the protection from deportation
that the FUP grants its beneficiaries is labeled “voluntary
departure,” which is not defined in the governing FUP regula-
tions. As the term is traditionally used, “voluntary departure”
refers to the “time period during which [an] alien may leave
the United States voluntarily rather than be removed.”
Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1168 (9th Cir.
2003); 8 U.S.C. § 1229c. When the INS, BIA, or IJ—all of
whom can authorize voluntary departure—grants an alien vol-
untary departure, the alien, who is removable from the United
States, “avoid[s] the stigma of compulsory ejection . . . selec-
t[s] his or her own destination . . . [and retains] the possibility
of return to the United States.” Contreras-Aragon v. INS, 852
F.2d 1088, 1090 (9th Cir. 1988) (en banc), superseded by stat-
ute, Illegal Immigration Reform and Immigrant Responsibil-
8252 GARCIA-QUINTERO v. GONZALES
ity Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.
3009, as recognized in Zazueta-Carrillo, 322 F.3d at 1068.
Under § 1229c, an alien who accepts voluntary departure
agrees to leave the United States within the allotted time.
[9] The grant of voluntary departure under § 1229c is sig-
nificantly different from the purpose and benefit of FUP vol-
untary departure. Unlike the removal context, in which
voluntary departure focuses on the alien’s leaving the United
States due to his removability, FUP voluntary departure
focuses on the alien’s staying in the United States while he
adjusts his status to LPR. In other words, whereas a remov-
able alien who is granted voluntary departure may remain in
the United States for a limited time to prepare for his depar-
ture and avoid forced removal, Garcia-Quintero, as an FUP
beneficiary, was allowed to remain in the United States for
two-year renewable intervals while he worked and adjusted
his status to LPR. Thus, despite the common name, it is clear
that FUP voluntary departure differs from traditional volun-
tary departure in the removal context. Moreover, even if vol-
untary departure in the context of the FUP is no different than
its use in the conventional removal context, this does not
mean that participation in the FUP is not a recognized status
given Blancas-Lara and the plain meaning of “in any status.”
Although the grant of voluntary departure may accord an
alien only limited benefits and protections, it is a status nonethe-
less.8
[10] Finally, “admitted” and “status” do in fact appear
together in one section of the FUP regulations. Section 236.16
8
In Diaz v. Ashcroft, the Fifth Circuit held, in an unpublished decision,
that FUP beneficiaries are not “admitted in any status” for cancellation of
removal purposes. 108 Fed.Appx. at 973. The court reasoned that the grant
of voluntary departure under FUP “does not constitute an admission in any
status.” Id. at 975 (internal quotation marks omitted). Based on the forego-
ing, we disagree. Therefore, although, as the dissent notes, unpublished
opinions in the Fifth Circuit may be considered for their persuasive value,
see Fifth Circuit Rule 47.5.4, the court’s decision in Diaz lacks such force.
GARCIA-QUINTERO v. GONZALES 8253
authorizes travel outside of the United States if an FUP bene-
ficiary submits a proper application to INS. As previously
stated, upon return from his travels, an FUP beneficiary “shall
be inspected and admitted in the same immigration status as
the alien had at the time of departure,” assuming that he is not
somehow inadmissible. 8 C.F.R. § 236.16 (emphases added).
By its terms, § 236.16 presupposes that FUP beneficiaries
have an “immigration status,” albeit a limited one. The limita-
tions of this status, however, are irrelevant given that
§ 1229b(a)(2) requires admission “in any status.” That is,
because FUP beneficiaries who travel outside the United
States are “admitted in the same immigration status” upon
return, it is only logical that acceptance into the FUP confers
some type of immigration status on the beneficiaries of the
program, all of whom are non-LPRs.9 Perhaps this logic is
what motivated the Government to concede at oral argument
that participation in the FUP could be construed as a status.
[11] In sum, the plain meaning of “admitted in any status,”
the legislative history of § 1229b, and the precedential deci-
9
A recent case in this circuit adds further support for this conclusion. In
Yepez-Razo v. Gonzales, we held that an FUP beneficiary was “lawfully
residing” in the United States from the date of her acceptance into the
FUP, which rendered her eligible for a § 212(h) waiver from removal. 445
F.3d 1216, 1217 (9th Cir. 2006). Yepez-Razo involved a dispute about
when the petitioner became an FUP beneficiary, stemming from the INS’s
initial wrongful denial of her FUP application. The INS did not dispute
that, as an FUP beneficiary, the petitioner was “lawfully residing” in the
United States, rather it only contested the date that she became a benefi-
ciary. Moreover, the court noted that through FUP, “Congress intended to
create mandatory protections for qualifying immigrants.” Id. at 1219.
Although Yepez-Razo does not address the interplay between FUP and
§ 1229b(a)(2), it does suggest that FUP beneficiaries are accorded a lim-
ited immigration status—one that grants them certain protections and
authorizes their stay in the United States. See also Memorandum from
Johnny N. Williams, INS Exec. Assoc. Comm’r, Office of Field Opera-
tions, Family Unity Benefits and Unlawful Presence, File. No. HQADN
70/10.19 (Jan. 27, 2003) (“[I]f an alien is granted FUP benefits, he or she
will be deemed to be in a period of stay authorized by the Attorney Gener-
al.”) (cited in Yepez-Razo, 445 F.3d at 1219).
8254 GARCIA-QUINTERO v. GONZALES
sions of the BIA and this circuit, lead us to hold that accep-
tance into the Family Unity Program constitutes “admitted in
any status” for the purposes of cancellation of removal. We
therefore grant Garcia-Quintero’s petition regarding his
motion to remand, and we remand to the BIA for further pro-
ceedings as it deems appropriate.
C. Fifth Amendment Challenge
Garcia-Quintero also challenges the BIA’s affirmance of
the IJ’s decision to order him removed. As explained above,
at the removal hearing, Garcia-Quintero’s attorney advised
him to assert his Fifth Amendment right against self-
incrimination when asked about any conduct that implicated
the alien smuggling charge. Although the IJ forbade the attor-
ney from invoking Garcia-Quintero’s Fifth Amendment right
for him, the IJ allowed them to consult one another. After
asserting the privilege twice, Garcia-Quintero confessed to the
conduct underlying the alien smuggling charge. Garcia-
Quintero argues that the IJ committed a “legal error” by refus-
ing to allow his attorney to assert his Fifth Amendment right
for him, and therefore the removal proceeding was improper.
We disagree.
[12] The Fifth Amendment privilege against self-
incrimination applies in removal hearings where the alien’s
testimony could expose him to future criminal prosecution.
Wall v. INS, 722 F.2d 1442, 1443 (9th Cir. 1984). However,
“[t]he only way the privilege can be asserted is on a question-
by-question basis, and thus as to each question asked, the
party has to decide whether or not to raise his Fifth Amend-
ment right.” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d
1258, 1263 (9th Cir. 2000). Thus, to the extent that Garcia-
Quintero argues that the IJ violated his Fifth Amendment
right by requiring that he assert the privilege after each ques-
tion, his argument fails.
GARCIA-QUINTERO v. GONZALES 8255
[13] Garcia-Quintero bases his claim in large part on the
fact that he needed the assistance of an interpreter, which
implies that he did not understand what he was doing by
answering the Government’s questions. Yet, his attorney
acknowledged at the removal hearing that he could not point
to anything that would show that Garcia-Quintero did not
understand that he was incriminating himself by relaying the
details of the June incident in question. Moreover, Garcia-
Quintero successfully invoked the privilege twice before he
began to answer the Government’s questions, which were not
duplicative of earlier ones. Although it is certainly possible
for a person who initially invokes the Fifth Amendment to
become confused about when to assert it again, especially
where there exists a language barrier, the IJ expressly permit-
ted Garcia-Quintero’s attorney to consult with and advise
Garcia-Quintero. Upon hearing a question put forth by the
Government that he thought triggered the Fifth Amendment,
Garcia-Quintero’s attorney could have objected,10 or asked to
consult with his client. The attorney did neither, and we can-
not now say that the IJ violated Garcia-Quintero’s constitu-
tional rights, or that the removal hearing was improper.
III. Conclusion
When the INS accepted Garcia-Quintero into the FUP in
1993, it authorized him to remain and work in the United
States for renewable two-year periods while he adjusted to
LPR status. He was also permitted to, and did, travel outside
the United States upon authorization. As an FUP beneficiary,
Garcia-Quintero held the same job for five years, paid United
10
In support of his argument, Garcia-Quintero cites Glanzer, in which
an attorney objected to a question on behalf of his client. In so doing,
Garcia-Quintero ignores two critical distinctions between Glanzer and this
case. In Glanzer, the attorney objected to the question immediately after
opposing counsel posed it, and his client remained silent. 232 F.3d at
1263. Here, however, Garcia-Quintero’s attorney did not voice any objec-
tions until after the Government and the IJ finished examining his client,
and after Garcia-Quintero answered the questions.
8256 GARCIA-QUINTERO v. GONZALES
States taxes, and raised a family. We hold that Garcia-
Quintero’s acceptance into the FUP rendered him “admitted
in any status.” He is therefore eligible for cancellation of
removal, and we remand to the BIA for further proceedings
consistent with this opinion. However, because Garcia-
Quintero did not invoke his Fifth Amendment right, but
instead admitted that he had engaged in alien smuggling, we
deny his challenge to the BIA’s order affirming the IJ’s deter-
mination that Garcia-Quintero is removable. We therefore
grant Garcia-Quintero’s petition for review in part and deny
it in part.
Petition GRANTED in part and REMANDED for further
proceedings; DENIED in part.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
Although I concur in the majority’s analysis of the Fifth
Amendment issue and agree that the deference we owe to the
Board of Immigration Appeals (“BIA”) is defined by Skid-
more v. Swift & Co., 323 U.S. 134 (1944), rather than by
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), I respectfully dissent from the
majority’s conclusion that the BIA misinterpreted 8 U.S.C.
§ 1229b(a)(2).
Title 8 U.S.C. § 1229b(a)(2) provides that cancellation of
removal is available, at the Attorney General’s discretion, for
a legal permanent resident alien (“LPR”) who is inadmissible
or deportable if (among other criteria) he “has resided in the
United States continuously for 7 years after having been
admitted in any status.” (Emphasis added.) There is no dis-
pute that Petitioner’s period of continuous residence ended on
June 8, 2001, when he attempted to smuggle an alien into the
United States. 8 U.S.C. § 1229b(d)(1). There also is no dis-
GARCIA-QUINTERO v. GONZALES 8257
pute that Petitioner entered the United States illegally in 1986.
The question presented is whether Petitioner was “admitted”
to the United States in 1998, when he became an LPR, or in
1993, when he was accepted into the Family Unity Program.
Congress has defined “admitted” as follows:
The terms “admission” and “admitted” mean, with
respect to an alien, the lawful entry of the alien into
the United States after inspection and authorization
by an immigration officer.
8 U.S.C. § 1101(a)(13). It is reasonable and persuasive for the
BIA to rely on that statutory definition of “admitted” in con-
struing the term “admitted” in § 1229b(a)(2).
The majority emphasizes that the “BIA’s analysis suffers
fatally,” majority op. at 8247, because the agency held in In
re Rosas-Ramirez, 22 I. & N. Dec. 616 (B.I.A. 1999), that the
attainment of LPR status constitutes “admission,” even when
an alien entered without inspection. There are two difficulties
with the majority’s conclusion in this regard. First, the BIA’s
decision here gave Petitioner the benefit of that interpretation
by conceding his “admission” in 1998. Second, and more
importantly, the BIA’s decision in Rosas-Ramirez is consis-
tent with its construction of a materially different section of
the statute here.
In Rosas-Ramirez the BIA majority relied on the fact that
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30,
1996), provides for removal of aliens who, it turns out, were
inadmissible “ ‘at the time of entry or adjustment of status.’ ”
22 I. & N. Dec. at 621 (emphasis added) (quoting
§ 237(a)(1)(A) of the Act). The decision reasoned that this
section—by referring to those who were inadmissible either
at the time of entry or at the time of adjustment of status—
implicitly recognizes its opposite: that aliens can be admissi-
8258 GARCIA-QUINTERO v. GONZALES
ble, and admitted, either at the time of entry or at the time of
adjustment of status. Id. at 621-23. The BIA majority in
Rosas-Ramirez also pointed to the fact that 8 U.S.C.
§ 1101(a)(20) defines the term “ ‘lawfully admitted for per-
manent residence’ ” as a “status” rather than as an event, a
definition of admission in the LPR context that encompasses
both admissions to LPR status at the border and later adjust-
ment to LPR status. 22 I. & N. Dec. at 618-19 (emphasis
added).
By contrast, the statute establishing the Family Unity Pro-
gram (“FUP”), Pub. L. No. 101-649, § 301, 101 Stat. 4978
(Nov. 29, 1990) (IMMACT), contains no text that necessarily
implies that acceptance into the program constitutes a form of
“admission” into the United States. The statute defines an “el-
igible immigrant” in terms of relationship to a “legalized alien,”1
not in terms of whether, when, or how “admission” takes
place. Id. § 301(b). An alien is eligible only if he or she “en-
tered” the United States before May 5, 1988, “resided” here
on that date, and was not “lawfully admitted for permanent
residence.” Id. § 301(a). By using the term “entered” without
the qualifying phrase in the usual definition of “admitted” and
by expressly excluding those who were “admitted” as LPRs,
Congress omitted any suggestion that acceptance into the FUP
is a form of “admission” into the United States. In substance,
the statute simply allowed certain aliens to remain in the
United States and to work under a temporary grant of “volun-
tary departure” while waiting for their potential adjustment to
LPR status—that is, for potential “admission.”
1
Unlike the term “eligible immigrant,” the term “legalized alien” does
make reference to the concept of “admission.” Section 301(b)(2) defines
“legalized alien” to mean certain aliens “lawfully admitted for temporary
or permanent residence.” The absence of a reference to “admission” in the
definition of an “eligible immigrant” like Petitioner further suggests that
“admission” is not a necessary consequence of acceptance into the Family
Unity Program.
GARCIA-QUINTERO v. GONZALES 8259
Critically, too, § 301(c) provides that, “[e]xcept as other-
wise specifically provided in this section, the definitions con-
tained in the Immigration and Nationality Act shall apply in
the administration of this section.” (Emphasis added.) In other
words, Congress directed the BIA’s attention, and ours, to 8
U.S.C. § 1101(a)(13).
Additionally, the majority relegates § 301(f) to a footnote,
majority op. at 8249 n.7, but that section supports—even if it
does not compel—the BIA’s interpretation. Section 301(f)
states that “[n]othing in this section shall be construed as
authorizing an alien to apply for admission to, or to be admit-
ted to, the United States in order to obtain benefits under this
section.” As the majority properly notes, this section bars
aliens who resided outside the United States on the date of
IMMACT’s enactment from entering in order to apply for
FUP benefits. This section conveys two additional things
about congressional intent as well. The first is that Congress
viewed the Family Unity Program as the receipt of “benefits,”
rather than as a form of “admission” into the United States.
The second is that Congress generally intended to grant those
“benefits” without expanding the population of aliens “admit-
ted to” the United States.
Finally, it is worth noting that the Fifth Circuit has decided
the precise question that we face. That court held that the BIA
properly interpreted the statute. Diaz v. Ashcroft, 108 F.
App’x 972 (5th Cir. 2004) (unpublished decision). Although
the decision is unpublished, Fifth Circuit Rule 47.5.4 allows
citation to an unpublished decision for its persuasive value.
National uniformity is especially important in immigration
matters. See Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th
Cir. 2004) (noting that the need for national uniformity is
“paramount” in the immigration context). We should not
lightly dismiss the Fifth Circuit’s conclusion.
I do not suggest that the majority’s interpretation of this
ambiguous statute is wholly untenable, and I am sympathetic
8260 GARCIA-QUINTERO v. GONZALES
to the majority’s desire for generosity toward aliens who
reside, with their families, within our borders. But, in my
view, the BIA’s interpretation more faithfully represents the
law that Congress decided to enact. Therefore, I would deny
the petition in its entirety.