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Jorge Raul Garcia v. Eric H. Holder Jr.

November 2, 2011

JORGE RAUL GARCIA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A072-897-225

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

FOR PUBLICATION

OPINION

Argued and Submitted August 30, 2011-Pasadena, California

Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Richard Seeborg, District Judge.*fn1

Opinion by Judge Gould

OPINION

Jorge Raul Garcia ("Garcia") petitions for review of the Board of Immigration Appeals's ("BIA") dismissal of his appeal of an Immigration Judge's ("IJ") decision denying his application for cancellation of removal. The BIA concluded that Garcia's 1992 parole as a Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), did not qualify as an admission "in any status" as required by 8 U.S.C. § 1229b(a)(2) and, as a result, found Garcia statutorily ineligible for cancellation of removal because he did not establish seven years of continuous physical presence after having been "admitted in any status." We disagree and hold that parole as a Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), qualifies as an admission "in any status" for the purposes of 8 U.S.C. § 1229b(a)(2). We grant Garcia's petition and remand to the BIA for further proceedings consistent with our opinion.

I

A

Garcia was born in Mexico in 1984 to Mexican citizen parents. Garcia had a difficult and tragic childhood in Mexico. His father was incarcerated for murdering his mother, and in his youth Garcia suffered a closed head injury, a type of traumatic brain injury. Garcia entered the United States without inspection in 1992 and soon thereafter entered the foster care system in California. His long-term social worker described him as "respectful" and "good hearted." Garcia was diagnosed with bi-polar disorder while in foster care. He went to special education classes in school. He has been diagnosed with diabetes and assessed as having "low-average" intelligence. Garcia was emancipated from the foster care system in 2004 at the age of 20. He has a U.S. citizen child.

In April 1993, when Garcia was nine years old, the Los Angeles County Department of Children and Family Services ("DCFS") filed a petition with the state juvenile dependency court on behalf of Garcia because of allegations of severe physical abuse. On July 15, 1994, the court found Garcia a dependant child of the court, eligible for long-term foster care. The court also found "that it would not be in the best interests of the minor to be returned to his/her country of citizenship or the country of habitual residence of his/her parents." The court ordered that the DCFS "make the necessary application for special immigrant status as a permanent resident for [Garcia]."*fn2 That month, DCFS's Special Immigrant Status Unit filed an immigration application on Garcia's behalf. The application included, inter alia, an I-360 Petition for classification as a special immigrant and an I-485 Application for adjustment to permanent resident status, based on Garcia's being an undocumented foster child/Special Immigrant Juvenile.

On February 28, 2000, the immigration authorities approved Garcia's I-360 Petition and I-485 Application and gave him Legal Permanent Resident ("LPR") status. It took more than five years for Garcia's LPR status to be approved. A likely source for that delay may have been his missing birth certificate which was added to Garcia's file in April 1999. Garcia's I-181 Memorandum of Creation of Record of Lawful Permanent Residence, reflecting his approval for LPR status, lists "92" in the field "Year Adm[itted] to U.S. or Year of Change to present [Non-Immigrant] Class."

B

Garcia was arrested on November 13, 2005, for stealing a bicycle in Long Beach, California. The city prosecutor charged him with a misdemeanor for grand theft of property worth over $400, to which Garcia pleaded nolo contendere. See Cal. Penal Code § 487(a) (2005). Garcia was found guilty and received a suspended sentence of three years of summary probation and twenty days in county jail. On December 28, 2005, Garcia was arrested for shoplifting from a Target store in Manhattan Beach, California. Garcia was charged with petty theft with prior convictions, and with giving false information to a police officer. See Cal. Penal Code §§ 666, 148.9(a) (2005). He pleaded guilty to ...


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