Abraham Saldivar v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ABRAHAM VILLALBA SALDIVAR, No. 13-72643 AKA Abraham Saldivar, AKA Abraham Villalba, Agency No. Petitioner, A077-979-428 v. OPINION JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued August 2, 2016 Submitted November 1, 2017 Pasadena, California Filed November 7, 2017 Before: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges. Opinion by Judge Reinhardt; Dissent by Judge Kozinski 2 SALDIVAR V. SESSIONS SUMMARY* Immigration The panel granted Abraham Villalba Saldivar’s petition for review of the Board of Immigration Appeals’ decision holding that Saldivar was statutorily ineligible for cancellation of removal for failure to establish seven years continuous residence in the United States after being “admitted in any status,” and vacated and remanded. For the purposes of the appeal, the panel assumed that Saldivar was “waved through” at a port of entry, and reaffirmed that an alien is “admitted” when he presents himself for inspection and is waved through a port of entry. The panel held that the term “in any status” plainly encompasses every status recognized by immigration statutes, lawful or unlawful. The panel therefore concluded that Saldivar was statutorily eligible for cancellation of removal because he established continuous residence in the United States for more than seven years after his admission. Dissenting, Judge Kozinski wrote that the majority defies structure, precedent and common sense by interpreting immigration status to mean both lawful and unlawful status. Judge Kozinski concluded that the only sensible way to read the term status is to refer to one of several specific lawful categories, and that the majority creates an intra-circuit conflict with Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir. 1973), where the court explained that “mistaken * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SALDIVAR V. SESSIONS 3 admission conferred no status, permanent resident or otherwise.” Further, Judge Kozinski wrote that if any doubt remains about the meaning of status, the court should defer under Chevron to the BIA’s interpretation. COUNSEL Patrick F. Valdez (argued), Valdez Law Firm, Inglewood, California, for Petitioner. Sergio Sarkany (argued), Trial Attorney; Kiley Kane, Senior Litigation Counsel; United States Department of Justice, Washington, D.C.; for Respondent. OPINION REINHARDT, Circuit Judge: Abraham Villalba Saldivar (“Saldivar”), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”). In an unpublished, single-member decision, the BIA held that he was statutorily ineligible for cancellation of removal because he could not establish seven years of continuous residence in the United States after having been “admitted in any status.” 8 U.S.C. § 1229b(a)(2). Saldivar was “admitted” in 1993 when he was waved across the border after inspection by an immigration officer. Therefore, we must address only whether this “admission” was “in any status.” Because the phrase “in any status” plainly encompasses every status ...

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