FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ANGEL POSOS-SANCHEZ, AKA Elias No. 17-72002 Avalos Fonseca, AKA Angel Figueroa Martinez, AKA Pedro Agency No. Soto-Hernandez, A092-724-951 Petitioner, v. OPINION MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 7, 2021 Pasadena, California Filed July 7, 2021 Before: Kim McLane Wardlaw, Ronald M. Gould, and John B. Owens, Circuit Judges. Opinion by Judge Wardlaw 2 POSOS-SANCHEZ V. GARLAND SUMMARY * Immigration Denying in part and granting in part Angel Posos- Sanchez’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that: 1) the agency correctly concluded that Posos had not been “admitted” to the United States and was therefore removable and ineligible to adjust his status; and 2) in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Notice to Appear (NTA) served on Posos – which lacked the time and date of his removal proceedings – did not terminate his period of physical presence in the United States and, as a result, the agency erred in finding him ineligible for voluntary departure on the ground that he had not been physically present for a year before service his NTA. The panel concluded that the IJ correctly concluded that Posos had not been “admitted” as required by 8 U.S.C. § 1182(a)(6)(A)(i) (removability ground based on lack of admission) and 8 U.S.C. § 1255(a) (adjustment of status). The panel explained that 8 U.S.C. § 1101(a)(13)(A) defines “admission” and “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” and that, based on this court’s precedent, unless an immigration official has inspected a noncitizen at a port of entry and then granted that noncitizen permission to enter the United States, that noncitizen has not been “admitted.” Accordingly, the panel concluded that * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. POSOS-SANCHEZ V. GARLAND 3 Posos had not been admitted when agents at a border patrol checkpoint in San Clemente, California, apprehended and released him after he showed them his then-valid temporary resident card. The panel assumed that these actions could amount to “inspection and authorization,” but explained the event did not take place at a “port of entry,” as the checkpoint sits well within the United States. Noting that the court has read the term “admitted” more broadly when statutory context demanded, the panel found no factual or legal ground to do so here. The panel observed that the BIA had reached the same result as the IJ, but concluded that the BIA erred in concluding that INS’s ultimate decision to deny Posos temporary resident status would have undone any hypothetical admission at the checkpoint. The panel concluded that the BIA’s …
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