Rosa Galindo De Rodriguez v. Eric H. Holder Jr. , 724 F.3d 1147 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSA DELICIA GALINDO DE No. 08-73477
RODRIGUEZ,
Petitioner, Agency No.
A076-217-735
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
ROSA DELICIA GALINDO DE No. 09-71264
RODRIGUEZ,
Petitioner, Agency No.
A076-217-735
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 5, 2013—Pasadena, California
2 GALINDO V . HOLDER
Filed July 30, 2013
Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Sidney H. Stein, District Judge.*
Opinion by Judge Stein
SUMMARY**
Immigration
The panel granted Rosa Galindo de Rodriguez’s petition
for review of the Board of Immigration Appeals’ decision
finding her ineligible for cancellation of removal, but denied
her petition from the denial of her motion to reopen.
The panel held that the BIA erred in concluding that
Galindo’s residence “after having been admitted in any
status” was not continuous as required by 8 U.S.C.
§ 1229b(a)(2) because she took a thirteen-day trip to Mexico
pursuant to a grant of advance parole. The panel also held
that § 1229b(a)(2) only requires seven years of continuous
residence; it does not require continuous status of any
particular kind, and the lawfulness of her presence in the
United States is immaterial to the continuity of residence.
The panel held, however, that the BIA did not abuse
*
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GALINDO V . HOLDER 3
discretion in denying Galindo’s motion to reopen seeking to
retract her admissions and concessions of removability.
COUNSEL
Philippe M. Dwelshauvers, Fresno, California, for Petitioner.
Jonathan Aaron Robbins (argued), Trial Attorney, Tony
West, Assistant Attorney General, William C. Peachey,
Assistant Director, and Rebecca Hoffberg Phillips, Trial
Attorney, United States Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for
Respondent.
OPINION
STEIN, District Judge:
Rosa Delicia Galindo de Rodriguez (“Galindo”) petitions
for review of two final orders of the Board of Immigration
Appeals (“BIA”), the first finding her ineligible for
cancellation of removal and the second denying her motion
to reopen. In her first petition, Galindo contends that the BIA
erred in finding that she had not “resided in the United States
continuously for 7 years after having been admitted in any
status”—a requirement for certain legal permanent residents
(“LPRs”) to be eligible for cancellation of removal. See
Immigration and Nationality Act (“INA”) § 240A(a)(2),
8 U.S.C. § 1229b(a)(2). The BIA found that her thirteen-day
trip to Mexico, pursuant to an authorization of advance
parole, severed the continuity of her United States residence.
That conclusion cannot be squared with the plain text of the
4 GALINDO V . HOLDER
statute, which defines a person’s residence as her “principal,
actual dwelling place.” See INA § 101(a)(33), 8 U.S.C.
§ 1101(a)(33).
Before this Court, the government also argues that she
was required to maintain a lawful admitted status throughout
her seven years of residence. But the provision at issue only
requires seven years of continuous residence; it does not
require continuous status of any particular kind. The
lawfulness of her presence in the United States “after having
been admitted in any status” is immaterial to the continuity of
her residence. See 8 U.S.C. § 1229b(a)(2).
In her second petition, Galindo contends that the BIA
should have reopened the case to allow her to retract her
concession of removability and argue based on intervening
case law that the Immigration Judge (“IJ”) should have
suppressed her initial confession to her alien-smuggling
crime. This petition is meritless. Galindo presents no
authority to support her argument that she may retract her
binding concessions of removability. Accordingly, the Court
grants her first petition, vacates the BIA’s dismissal of her
appeal, and remands to the BIA for further proceedings. We
deny Galindo’s second petition.
I. Background
A. Galindo’s 1990 Admission and Residence in the
United States
Galindo, a Mexican national, entered the United States on
May 12, 1990 by presenting herself for inspection using a
border crossing card. Although the border crossing card
limited her to a brief stay in the vicinity of the United States-
GALINDO V . HOLDER 5
Mexico border, she immediately moved north to the Fresno
area and married Adrian Rodriguez. In 1996, Adrian became
a naturalized United States citizen, the couple had their first
child together, and Galindo applied for an adjustment of
status based on Adrian’s citizenship. Galindo was granted
LPR status on May 24, 2000.
During the seven years after Galindo moved to the United
States in May 1990, she took only one trip outside the
country. The significance of that trip is the focus of this
appeal. Shortly after commencing her application for
adjustment of status in fall 1996, Galindo applied for and
received a grant of advance parole to visit her ailing mother
in Tijuana, Mexico. Advance parole was granted on
December 23, 1996, allowing her to travel to Mexico and
back. Galindo crossed into Mexico on December 24, 1996,
visited her mother, and returned thirteen days later, on
January 5, 1997. Upon her return, Galindo was paroled into
the country to continue her then-pending application for
adjustment of status.
B. Galindo’s Arrest and Removal Proceedings
Approximately nine years later, on November 16, 2005,
Galindo was detained at the San Ysidro border station when
she attempted to use her daughter’s United States birth
certificate to bring an undocumented minor child across the
border. Galindo had agreed to drive the girl from Tijuana to
a location in California in exchange for $500. Galindo and
another individual had picked the girl up in Tijuana and
proceeded to the border. During inspection, the border agent,
suspecting that the birth certificate did not belong to the girl,
took the occupants inside for a secondary inspection. When
questioned, each of the three occupants admitted that the girl
6 GALINDO V . HOLDER
was not Galindo’s daughter, and Galindo admitted that she
had agreed to transport her for pay. Galindo was served with
a notice to appear and detained pending a removal hearing.
After an initial hearing at which an IJ explained her rights
and continued the case to allow her to find an attorney,
Galindo appeared pro se and declined the offer of more time
to find counsel. The IJ then recited the allegations in her
notice to appear, and Galindo admitted that each factual
allegation was true and admitted the charge of removability.
Galindo explained that she wished to apply for cancellation
of removal, and the IJ continued the hearing. By the time the
hearing resumed, Galindo had found pro bono counsel who
obtained another continuance. At the next appearance,
counsel explained that Galindo understood the charges and
that she still admitted the factual allegations and conceded
removability, but was submitting an application for
cancellation of removal.
On March 7, 2007, the IJ held a merits hearing on
Galindo’s application for cancellation and focused on
whether Galindo could demonstrate the required seven years’
continuous residence in the United States after an admission
“in any status.” Specifically, the IJ accepted counsel’s proffer
that Galindo had been lawfully admitted in 1990, but found
that her December 1996 trip ended her continuous residence,
and that her parole into the country in January 1997 could not
qualify as an admission.
C. Galindo’s Appeal to the BIA and Motion to
Reopen
Galindo timely appealed to the BIA, contesting only the
denial of her cancellation application, not the finding of
GALINDO V . HOLDER 7
removability. She contended that she was admitted in 1990
and that, despite short trips to Mexico, she continuously
resided in the country until November 16, 2005, when service
of the notice to appear cut off the accrual of residence time
pursuant to INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
Alternatively, she argued that her parole into the country on
January 5, 1997, was an “admission” and the start of her
period of continuous residence. The BIA dismissed her
appeal in an unpublished decision dated July 15, 2008,
concluding that she could not demonstrate the required seven
years of continuous residence after having been admitted. The
BIA found that her December 1996 departure broke the
continuity of her residence after her 1990 admission and that
her parole was not a qualifying admission.
Galindo then moved the BIA to reopen her removal
proceedings on the ground that intervening case law, de
Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir.
2008), required the IJ to exclude the record of her
interrogation and thus entitled her to withdraw her concession
of removability. The BIA denied the motion in an
unpublished decision, finding that Galindo had presented no
new evidence to suggest that the government had not
complied with the pertinent regulations regarding her
interrogation at the border, and that in any event, she had
presented no authority to exclude her subsequent factual
admissions and concessions of removability before the IJ.
II. Jurisdiction and Standard of Review
We have jurisdiction pursuant to INA § 242(a)(1),
8 U.S.C. § 1252(a)(1). We review the BIA’s legal
conclusions de novo, “except to the extent that deference is
owed to its interpretation of the governing statutes and
8 GALINDO V . HOLDER
regulations.” Garcia-Quintero v. Gonzales, 455 F.3d 1006,
1011 (9th Cir. 2006). “The BIA’s decision reviewed here is
unpublished and issued by a single member of the BIA; it
does not carry the force of law, and it is accorded only
Skidmore deference proportional to its thoroughness,
reasoning, consistency, and ability to persuade.” Mejia-
Hernandez v. Holder, 633 F.3d 818, 822 (9th Cir. 2011). The
BIA’s denial of a motion to reopen is reviewed for abuse of
discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.
2002).
III. Discussion
A. Galindo “resided in the United States continuously
for 7 years after having been admitted in any
status” pursuant to § 1229b(a)(2).
There is no dispute that Galindo was “admitted” with
non-immigrant “status” within the meaning of the statute
when she entered the country in May 1990. See 8 U.S.C.
§ 1229b(a)(2). Instead, the government argues that she ran
afoul of the statute twice in the seven years that followed: (1)
when she violated the terms of her entry and thus ceased to be
lawfully admitted and (2) when she left the country on a
thirteen-day trip to Mexico to visit her mother. In essence, the
government reads the statute to require seven years of
continuous lawful presence—not seven years of residence
after a lawful entry. The statutory scheme simply does not
bear the government’s interpretation.
GALINDO V . HOLDER 9
1. Maintenance of lawful status after the
admission is not required.
An entry must be “lawful” to qualify as an admission.
8 U.S.C. § 1101(a)(13)(A). But, contrary to the government’s
contentions, the admission in any status is a single event,
after which residence must be continuous. As the BIA has
held and as this Court has agreed, an alien accrues continuous
residence time “after having been admitted in any status”
pursuant to 8 U.S.C. § 1229b(a)(2) despite violating the terms
of a border-crossing card. See Guevara v. Holder, 649 F.3d
1086, 1094–95 (9th Cir. 2011) (discussing In re Blancas-
Lara, 23 I. & N. Dec. 458 (BIA 2002)). That an alien remains
in the country unlawfully is immaterial to this requirement
because “Congress in 8 U.S.C. § 1229b(a)(2) did not include
maintenance of status as a prerequisite for relief.” Guevara,
649 F.3d at 1095.
When Congress intends to require seven years of
continuous lawful residence, it does so explicitly. Cf. INA
§ 212(h), 8 U.S.C. § 1182(h) (“lawfully resided continuously
in the United States for a period of not less than 7 years”
(emphasis added)). That Congress required a period of lawful
resident status in the immediately preceding clause of the
very same sentence places the issue beyond dispute. See
8 U.S.C. § 1229b(a)(1) (“lawfully admitted for permanent
residence for not less than 5 years”). In sum, § 1229b(a)(2)
does not require continuity of any status, let alone lawful
status.
10 GALINDO V . HOLDER
2. Galindo’s brief trip to Mexico on advance
parole did not end her period of continuous
residence.
The government’s reliance on Galindo’s thirteen-day trip
to end her period of continuous residence in the United States
is inconsistent with the definition of “residence” in the
statute. “The term ‘residence’ means the place of general
abode; the place of general abode of a person means his
principal, actual dwelling place in fact, without regard to
intent.” 8 U.S.C. § 1101(a)(33). By that or any definition, a
brief visit to family does not change a person’s residence. The
statute does not treat every dwelling in which an alien stays
as a new residence; the text instructs courts to take a wider
view, deeming the “principal, actual dwelling place” and “the
place of general abode” to be the residence. Id. (emphasis
added). The objective circumstances—authorization of parole
already secured and her home in California awaiting her
return while she visited her ailing mother—do not suggest a
change in her residence.
Indeed, this Court applied the same definition of
“residence” in the context of an application for naturalization
and found that an alien with longer and regularized trips to
his former home in Mexico still resided in the United States.
Alcarez-Garcia v. Ashcroft, 293 F.3d 1155, 1157–58 (9th Cir.
2002); see id. at 1157 n.2 (observing that Congress codified
the definition applied in 8 U.S.C. § 1101(a)(33)). There, the
applicant had shown that his father’s residence was in Texas
even though the father was constantly moving around the
state for work and spent three months each year with his
family in Mexico. Id. at 1157–58.
GALINDO V . HOLDER 11
The government’s proposed construction impermissibly
converts a requirement that an alien “reside” in the United
States for seven years into a requirement that she be
“physically present” in the country every day for seven years.
Cf. Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir. 1993)
(finding alien had continuously resided in United States
despite one “brief” and one “longer trip to Mexico” because
statute “requires continuous residence in the United States,
not continuous presence here” (emphasis in original)). Such
a rewriting is especially impermissible here because Congress
used the term “physically present” in the same statutory
section to impose more stringent eligibility requirements on
those without LPR status. See 8 U.S.C. § 1229b(b)(1)(A).
Moreover, the very same section goes on to define
“continuous physical presence” in a more flexible manner
than the government would have the Court define
“continuous residence.” “Physical presence” is, as a matter of
statute, continuous despite a trip out of the country lasting up
to ninety days. 8 U.S.C. § 1229b(d)(2). Placed in context, the
government would have the Court hold that, by visiting her
ailing mother briefly, Galindo as a matter of law changed her
residence to Mexico while remaining physically present in
California. That construction cannot be squared with the
definition of “residence” or the context in which that term is
used.1
1
For the first time at oral argument, the government advanced a new
theory: that Galindo’s trip actually ended years after she returned home to
California because, it contends, the legal fiction of her reentry pursuant to
parole was that she remained at the border until the resolution of her then-
pending application for LPR status. The government’s proposed rule
would only favor aliens who avoid the consequences of the asserted legal
fiction by leaving and reentering the county surreptitiously instead of
securing advance parole and presenting themselves for inspection at the
12 GALINDO V . HOLDER
Accordingly, the BIA committed legal error by
concluding based on the undisputed facts that Galindo had
not resided in the United States continuously after her
admission in 1990. The Court grants the petition for review
of the BIA’s dismissal of her appeal, and remands for
consideration of the merits of Galindo’s application for
cancellation of removal.
B. The BIA properly denied Galindo’s motion to
reopen because she cannot retract her concessions
of removability.
Galindo’s motion to reopen—claiming that she can retract
her concessions of removability and her admissions of the
pertinent facts in order to attack the evidentiary bases for her
removal on remand—was meritless, and the BIA properly
denied that motion. Galindo does not contest that she
conceded removability herself and then again through
counsel. Nor does she now claim that she was not, in fact,
removable as charged. She contends only that the law
governing her interrogation might have changed, and that she
should thus be permitted to restart the removal proceedings
with a clean slate.
But Galindo’s concessions of removability before the IJ
are binding and render the asserted change in the law
immaterial; the BIA was thus well within its discretion to
deny her motion to reopen. Galindo contends that she may
withdraw her concessions pursuant to this Court’s decision in
Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003).
There, we concluded that the alien’s concession was not
border. In any event, the government proffers no support for this reading
of the continuous residence requirement, and the Court finds none.
GALINDO V . HOLDER 13
“dispositive” because the change in the law at issue
potentially changed the meaning of the alien’s concession. Id.
at 886. Here, by contrast, there is no possibility that Galindo
mistakenly conceded removability based on a now-
questionable rule of law. The law governing alien smuggling
has not changed, and she admitted all of the facts of that
crime. Accordingly, the Court denies the petition for review
of the BIA’s denial of her motion to reopen.
IV. Conclusion
The BIA improperly concluded that Galindo’s residence
“after having been admitted in any status” was not continuous
as required by 8 U.S.C. § 1229b(a)(2) because she took a
thirteen-day trip to Mexico pursuant to a grant of advance
parole. We therefore grant Galindo’s petition for review of
the BIA’s dismissal of her appeal and remand. However, the
BIA acted within its discretion in denying her motion to
reopen; the Court denies the petition for review of that order.
Petition for review No. 08-73477 is GRANTED. The
July 15, 2008 order of the BIA is therefore VACATED, and
the case is REMANDED. Petition for review No. 09-71264
is DENIED.