Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alanniz v. Barr

United States Court of Appeals, Ninth Circuit

May 20, 2019

Jose Mauricio Alanniz, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Submitted February 12, 2019 [*] Pasadena, California

          On 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.

          M. 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.

         SUMMARY[***]

         Immigration

         On 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.

         To be 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.

         The 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.

         The 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.

         Finally, 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.

          OPINION

          CALLAHAN, CIRCUIT JUDGE.

         Jose 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.

         I

         Alanniz, 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.

         A parole document dated October 10, 1997, paroled Alanniz "into the country for adjustment of status purposes, . . . until October 9, 1998."[1] 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. § 1229b(a)(2).

         In 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.

         While 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.

         In the 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 ("CAT").

         The IJ 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.[2] 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."

         The IJ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.