FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ALBERTO HERNANDEZ, No. 21-70493 Petitioner, Agency No. v. A094-447-896 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 9, 2021 Pasadena, California Filed June 28, 2022 Before: Paul J. Kelly, Jr., * Milan D. Smith, Jr., and Danielle J. Forrest, Circuit Judges. Opinion by Judge Forrest * The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 2 HERNANDEZ V. GARLAND SUMMARY ** Immigration Denying Jose Alberto Hernandez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that: (1) Hernandez’s receipt of temporary protected status (“TPS”) was not an admission, and he therefore could not meet the statutory requirement that he have seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal; and 2) the Board properly concluded that Hernandez’s domestic-violence conviction was a particularly serious crime (“PSC”) that barred him from obtaining asylum. Considering the Supreme Court’s recent decision in Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021), and the plain language of the TPS statute, 8 U.S.C. § 1254a(c)(5), the panel concluded that the granting of TPS does not constitute being “admitted in any status” under the cancellation statute, 8 U.S.C. § 1229b(a). The panel held that Sanchez effectively overruled circuit precedent requiring consideration of the benefits conferred by an alien’s immigration status in determining whether the alien had been admitted. The panel explained that circuit precedent judicially expanding the statutory definition of admission was clearly irreconcilable with Sanchez’s holding that lawful status and admission are distinct concepts in immigration law. The panel wrote that Sanchez is clear that TPS does not constitute an admission to the United States no matter how great its benefits. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HERNANDEZ V. GARLAND 3 The panel wrote that the plain language of the TPS statute reinforced its conclusion that receiving TPS does not constitute an admission under the cancellation statute. Most compelling is the statute’s express statement that a grant of TPS does not constitute an admission. Moreover, certain other language indicates that TPS is a disfavored way to establish any of the cancellation-of-removal requirements, and notably absent from the statute’s list of benefits is admission. Accordingly, the panel agreed with the BIA that Hernandez failed to satisfy the 7-year continuous residence requirement after having been admitted in any status, and he was therefore not eligible for lawful permanent resident cancellation of removal. The panel rejected Hernandez’s argument that the BIA legally erred in its PSC determination by considering the cumulative effect of his three domestic-violence convictions, instead of considering his third conviction in 2016 alone. The panel concluded that the BIA’s …
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