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Gustavo Cruz-Miguel v. Eric H. Holder

April 27, 2011

GUSTAVO CRUZ-MIGUEL, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT. FRANCISCO JAVIER SANCHEZ-FLORES, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT. ROGELIO MIGUEL-RAMIREZ, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT. PABLO FRANCISCO-LORENZO, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.*FN1



The opinion of the court was delivered by: Reena Raggi, Circuit Judge:

09-3155-ag, 09-3156-ag, 09-3157-ag, 09-5176-ag

Cruz-Miguel et al v. Holder, Sanchez-Flores v. Holder, Miguel-Ramirez v. Holder, Francisco-Lorenzo v.

Holder

Argued: April 14, 2011

Before: RAGGI, LOHIER, Circuit Judges, PRESKA, Chief District Judge.*fn2

Petitioners challenge orders of removal from the United States, submitting that the Board of Immigration Appeals erred in concluding that they were statutorily ineligible for adjustment of status because their release on "conditional parole" under § 236(a)(2)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(a)(2)(B), does not satisfy the "paroled into the United States" requirement of INA § 245(a), id. § 1255(a).

Petitions for review DENIED.

Gustavo Cruz-Miguel, Francisco Javier Sanchez-Flores, and Rogelio Miguel-Ramirez, citizens of Mexico, and Pablo Francisco-Lorenzo, a citizen of Guatemala, petition for review of removal orders that became final after the Board of Immigration Appeals ("BIA") dismissed their appeals from decisions of Immigration Judge ("IJ") Michaelangelo Rocco that found each man removable under § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), see 8 U.S.C. § 1182(a)(6)(A)(i), and ineligible for adjustment of status under INA § 245(a), see id. § 1255(a).*fn3 Petitioners submit that the BIA erred in concluding that their "conditional parole" under INA § 236(a)(2)(B), id. § 1226(a)(2)(B), failed to satisfy the "paroled into the United States" requirement of § 1255(a) so as to permit each man to adjust his status to that of a lawful permanent resident. Because we conclude that aliens released on "conditional parole" pursuant to § 1226(a)(2)(B) have not been "paroled into the United States" within the meaning of § 1255(a), we deny the petitions for review.*fn4

I. Background

A. Unlawful Entry into the United States and Placement in Removal Proceedings

On different dates between October 1998 and October 2003, petitioners each entered the United States illegally at the nation's southwest border: (1) Cruz-Miguel on October 10, 1998, near Douglas, Arizona; (2) Sanchez-Flores on January 26, 1999, near Eagle Pass, Texas; (3) Francisco-Lorenzo on January 15, 2001, near Phoenix, Arizona; and (4) Miguel- Ramirez on October 10, 2003, near El Paso, Texas. Some years later, petitioners came to the attention of local law enforcement authorities in upstate New York, who notified Department of Homeland Security ("DHS") immigration officials.*fn5 Upon inspection, DHS served each man with a Form I-862 Notice to Appear and placed him in removal proceedings. The Notice alleged removability based on each man's status as "[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General." Id. § 1182(a)(6)(A)(i).

B. Release on "Conditional Parole"

On the same day each petitioner was taken into DHS custody, he was released therefrom on his "own recognizance" pursuant to 8 U.S.C. § 1226, pending a final determination of removability. As discussed further infra at 11-12, § 1226(a)(2) permits the executive to release an alien from custody pending a removability determination either on a "bond of at least $1,500" or on "conditional parole." Id. § 1226(a)(2)(A)-(B). All parties appear to agree that petitioners were released on "conditional parole." Certainly, none of the petitioners was provided with a Form I-94 Arrival-Departure Record or other document indicating that he had been granted "parole into the United States" under INA § 212(d)(5)(A), which, as discussed further infra at 11, permits the executive to parole aliens into the United States temporarily for "urgent humanitarian reasons" or to achieve a "significant public benefit." Id. § 1182(d)(5)(A).*fn6

C. Removal Proceedings

Before the IJ, petitioners acknowledged that they had entered the United States illegally, i.e., without inspection and without being admitted or paroled into this country upon arrival.*fn7 Petitioners nevertheless moved to terminate removal proceedings, contending that they were entitled to seek adjustment of status to that of lawful permanent residents under Id. § 1255(a).*fn8 That section, discussed further infra at 9-10, allows the executive to grant an adjustment of status, inter alia, to "an alien who was inspected and admitted or paroled into the United States." Id. Petitioners argued to the IJ that their release on "conditional parole" under § 1226(a)(2)(B) satisfied the "paroled into the United States" requirement of § 1255(a). The IJ concluded otherwise, holding that petitioners were statutorily ineligible for adjustment of status and removable as charged. See In re Cruz-Miguel, et al., Nos. A 098 929 367, A 095 966 008, A 076 025 155 (Immig. Ct. Buffalo, N.Y. Aug. 16, 2007); In re Francisco- Lorenzo, No. A 097 302 010 (Immig. Ct. Buffalo, N.Y. Dec. 21, 2007).*fn9

Petitioners appealed to the BIA. In separate unpublished decisions, the BIA affirmed the IJ's removal decision and dismissed the appeals. See In re Cruz-Miguel, No. A 098 929 367 (B.I.A. June 25, 2009); In re Miguel-Ramirez, No. A 095 966 008 (B.I.A. June 25, 2009); In re Sanchez-Flores, No. A 076 025 155 (B.I.A. June 25, 2009); In re Francisco- Lorenzo, No. A 097 302 010 (B.I.A. Nov. 17, 2009). In doing so, the BIA ruled that petitioners were not eligible to adjust their status because release on "conditional parole" under § 1226(a)(2)(B) is not the same as having been "paroled into the United States" within the meaning of § 1255(a).*fn10 Petitioners timely filed petitions for review.

II. Discussion

Petitioners contend that the BIA erred in failing to equate release on "conditional parole" under 8 U.S.C. § 1226(a)(2)(B) with having been "paroled into the United States" for purposes of establishing eligibility for adjustment of status under 8 U.S.C. § 1255(a). To date, three of our sister circuits have considered this same argument and uniformly rejected it. See Delgado-Sobalvarro v. Attorney Gen. of the U.S., 625 F.3d 782 (3d Cir. 2010) (according Chevron deference to BIA's precedential decision in In re Castillo-Padilla, 25 I. & N. Dec. 257 (B.I.A. 2010)); Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007) (relying on construction of language and history of statute); see also Castillo-Padilla v. U.S. Att'y Gen., No. 10-13273, 2011 WL 880846 (11th Cir. Mar. 15, 2011) (unpublished)

(ruling in the alternative). We here reach the same conclusion. The language of the relevant INA provisions makes plain that an alien released on conditional parole pending resolution of ongoing removal proceedings is not thereby "paroled into the United States" so as to be eligible for adjustment of status under § 1255(a). Even if we were to identify statutory ambiguity on this point, we would accord Chevron deference to the BIA's reasonable construction of the statute in In re Castillo-Padilla, 25 I. & N. Dec. 257. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

A. Jurisdiction and Standard of Review

Federal courts lack jurisdiction to review a discretionary denial of adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i); Ruiz v. Mukasey, 552 F.3d 269, 275 n.4 (2d Cir. 2009). We retain jurisdiction, however, to review "constitutional claims or questions of law raised upon a petition for review," 8 U.S.C. § 1252(a)(2)(D), including whether an alien is eligible for adjustment of status, see Aslam v. Mukasey, 537 F.3d 110, 115 (2d Cir. 2008). Because the question of eligibility for adjustment of status is one of law, our standard of review is de novo. See Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 2010). Where the question turns on the proper construction of statutory provisions that have been the subject of a precedential decision by the administering agency, we will defer to a reasonable agency interpretation, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 843- 44; Wellington v. Holder, 623 F.3d 115, 118 (2d Cir. 2010), but only if traditional ...


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