By Marcus Fields
Last Friday, in Chavez v. Holder, the Fourth Circuit denied a petition for review of a decision by the Board of Immigration Appeals (BIA) that found Ms. Chavez statutorily ineligible for cancellation of a removal order. The Court agreed with the BIA’s conclusion that Chavez could not establish the required seven years of residency to be eligible for cancellation because she had not been admitted until November, 2006.
Under 8 U.S.C. § 1229b(a) a permanent resident can have their removal cancelled if: (1) they have been “lawfully admitted for permanent residence” for at least five years, (2) they have resided in the United States for at least seven continuous years “after having been admitted in any status,” and (3) they have “not been convicted of any aggravated felony.” ‘Admitted’ is defined in 8 U.S.C. § 1101(a)(13)(A) as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.”
The petitioner, Maria Luisa Chavez, first entered the United States in 1989 without being inspected by an immigration agent. In 1992, due to an ongoing conflict in her native El Salvador, Chavez was granted Temporary Protective Status (TPS) which allowed her to stay and work in the United States for the duration of the conflict. In 2006 Chavez received Legal Permanent Resident status and later that year visited family in El Salvador. She reentered the United States on November 19, 2006, and was inspected by an immigration officer at the border. On October 14, 2007, Chavez was arrested for petit larceny in Virginia and following her conviction on December 4, 2007, Immigration and Customs Enforcement initiated removal proceedings.
Chavez argued that she was ‘admitted’ for purposes of § 1229b(a) when she was granted TPS in 1992 and thus satisfied the continuous residency requirement necessary for cancellation of removal. The Fourth Circuit, reviewing the statutory question de novo, quickly dismissed this argument. It found instead, relying on Bracamontes v. Holder, that the definition found in § 1101(a)(13)(A) was unambiguous and did not include grants of TPS. In Bracamontes, the Fourth Circuit had concluded that the word ‘admitted’ “contemplate[s] a physical crossing of the border following the sanction and approval of United States authorities.” Applying that definition to the present case the Fourth Circuit found that Chavez was not ‘admitted’ until she was inspected by an immigration officer while reentering the United States in 2006.
Chavez alternatively argued that she did not have to establish ‘admission’ in order to satisfy the continuous residency requirement found in § 1229b(a)(2). She relied on language found in 8 U.S.C. § 1254a(e) allowing residence under TPS to count towards the continuous residency requirement if the resident could establish extreme hardship. Chavez argued this language would be superfluous if grants of TPS could never establish admission and admission was required to satisfy § 1229b(a)(2). The Fourth Circuit, however, concludes that § 1254a(e) and § 1229b(a)(2) can be read together in harmony without causing any language to be superfluous. The Court suggests, for example, that an alien could be admitted to the United States under a student visa and then subsequently be granted TPS after the expiration of that visa. If the alien could establish extreme hardship she could count any period of residence under TPS as part of the continuous residency requirement of § 1229b(a)(2). Under such a scenario § 1254a(e) would provide a non-superfluous exception to the general rule for calculating continuous residency, while the student visa would provide the necessary ‘admission’.
Because Chavez was not admitted into the United States until November, 2006, the Fourth Circuit found that at the time of her arrest she had not established the seven required years of continuous residence to be eligible for cancellation of removal and thus denied her petition for review.