Submitted February 12, 2019 [*] Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A073-815-349
Mackenzie W. Mackins, Mackins & Mackins LLP, Sherman
Oaks, California, for Petitioner.
Jocelyn Lopez Wright, Senior Litigation Counsel; Leslie
McKay, Assistant Director; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
Before: Dorothy W. Nelson and Consuelo M. Callahan, Circuit
Judges, and Edward R. Korman, [**] District Judge.
petition for review of a decision of the Board of Immigration
Appeals, the panel denied Jose Alanniz's challenge to the
pretermission of his application for cancellation of removal,
holding that parole into the United States under 8 U.S.C.
§ 1182(d)(5) is not an "admission in any
status" for purposes of meeting the residency
requirement for cancellation of removal, and remanded his
asylum application for further fact-finding.
eligible for cancellation of removal for certain permanent
residents, an applicant must establish, as relevant here,
that he or she has "resided in the United States
continuously for 7 years after having been admitted in any
status." Because Alanniz's period of residency was
deemed to end when he was convicted of a drug offense in
2006, he had to show that he had been "admitted in any
status" by at least 1999. Although Alanniz did not
adjust to lawful permanent resident status until 2000, he
contended that he met the residency requirement because his
1997 grant of parole constituted being "admitted in any
status." The BIA rejected that contention and found him
ineligible for cancellation.
panel held that Alanniz's parole was not an admission
and, therefore, he was not "admitted in any status"
until his later adjustment to lawful permanent resident
status. The panel explained that it was bound by
Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir.
2015), in which this court deferred to the BIA's reading
of "admitted in any status" as meaning that a
person has been "admitted," as defined in 8 U.S.C.
§ 1101(a)(13)(A). In Medina-Nunez, the court
also deferred to the BIA's decision that acceptance into
the Family Unity Program was not such an admission. Because
the court held in Medina-Nunez that the BIA's
determination that even a specialized parole, such as
acceptance into the Family Unity Program, did not constitute
an admission, the panel concluded that Alanniz could not
prevail on his argument that his 1997 parole constituted an
admission. Accordingly, the panel concluded that Alanniz
failed to obtain the seven years of continuous residency
required for cancellation.
panel also rejected Alanniz's contention that his case
should be remanded on the ground that his 1997 parole
document was not part of the administrative record, and held
that Alanniz's brief to the BIA did not challenge the
denial of relief under the Convention Against Torture.
the panel acceded to the parties' request to remand
Alanniz's asylum claim to the agency to allow an
Immigration Judge to undertake the initial fact-finding
necessary to determine the viability of Alanniz's
proposed group, as defined by Alanniz.
CALLAHAN, CIRCUIT JUDGE.
Alanniz, a native and citizen of Mexico, entered the United
States without inspection in 1986, received parole in 1997,
and adjusted to lawful permanent resident ("LPR")
status in 2000. He was convicted of a crime involving cocaine
in 2006. He admitted to being removable, but asserted that he
was eligible for cancellation of removal based on continuous
residency in the United States for more than seven years. The
Board of Immigration Appeals ("BIA") affirmed the
Immigration Judge's (IJ) pretermission of his application
for cancellation of removal holding that Alanniz's
continuous residency did not commence with the 1997 parole,
but with his 2000 adjustment to LPR status. We agree and
affirm the pretermission of his application for cancellation
of removal. However, at the parties' mutual request, we
remand Alanniz's asylum application for the fact-finding
necessary to determine the viability of Alanniz's
proposed social group.
a native and citizen of Mexico, was born on March 19, 1982.
He claims that his parents brought him into the United States
without inspection in 1986. He adjusted his status to LPR in
August 2000. At the time of his removal hearing, he was
unmarried and had four United States citizen children (born
in 2000, 2003, 2005, and 2009). His parents and siblings are
either citizens or LPRs.
parole document dated October 10, 1997, paroled Alanniz
"into the country for adjustment of status purposes, . .
. until October 9, 1998." Although this document was not
placed in the certified record of this petition for review,
Alanniz's primary contention before us is that the
document constitutes an "admission" into the United
States for the purpose of beginning the seven years of
continuous residence necessary to qualify for discretionary
cancellation of removal pursuant to 8 U.S.C. §
2002, Alanniz was convicted of possession of a controlled
substance, cocaine, in violation of California law and
sentenced to three years probation. Then in 2006, Alanniz was
convicted of violating a California criminal statute by being
under the influence of cocaine and sentenced to 140 days in
jail. Removal proceedings were initiated against Alanniz in
2012 based on his 2002 conviction. At the conclusion of a
June 12, 2012 hearing before an IJ, the IJ issued an oral
decision sustaining the charge of removability and ordering
Alanniz removed to Mexico. Alanniz appealed to the BIA which
dismissed his appeal, and he then filed a petition for review
with the Ninth Circuit.
his petition was pending before the Ninth Circuit, Alanniz
filed a motion to reopen with the BIA asserting that, in
October 2012, a California Superior Court had amended the
2002 criminal complaint against Alanniz so that it no longer
identified the controlled substance. The BIA granted
reopening, vacated its previous order, and remanded the case
to the IJ for further proceedings. We then dismissed
Alanniz's petition for review for lack of jurisdiction.
reopened proceedings, DHS amended the Notice to Appear
substituting Alanniz's 2006 drug conviction for the 2002
conviction. In a January 22, 2014 order, the IJ denied
Alanniz's requests for relief. Alanniz admitted that he
was removable but sought cancellation of removal, asylum, and
relief under the Convention Against Torture
granted DHS's motion to pretermit Alanniz's
application for cancellation of removal. The IJ was not
persuaded by Alanniz's argument that his 2002 conviction
no longer disqualified him from cancellation of removal, but
found that it was "undisputed" that Alanniz had
been convicted of a controlled substance related offense in
2006, and that the substance had been cocaine. Accordingly, to
be eligible for cancellation, Alanniz had to show "that
he was 'admitted' and resid[ed] in the U.S. since at
least 1999." However, the IJ found that his initial
entry was without inspection, and his "first
'admission' was when he adjusted his status to a
lawful permanent resident on August 3, 2000."
proceeded to deny Alanniz's request for asylum noting
that, even accepting that he provided credible testimony,
Alanniz's concern that "he will be targeted for harm
by the drug cartels and other criminals in the country"
was a generalized fear of harm by criminals and not harm on
account of a protected ground. The IJ also denied relief
under the CAT noting that there was ...