GOULD, Circuit Judge:
Jorge Raul Garcia ("Garcia") petitions for review of the Board of Immigration Appeals's ("BIA") dismissal of his appeal of an Immigration Judge's ("IJ") decision denying his application for cancellation of removal. The BIA concluded that Garcia's 1992 parole as a Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), did not qualify as an admission "in any status" as required by 8 U.S.C. § 1229b(a)(2) and, as a result, found Garcia statutorily ineligible for cancellation of removal because he did not establish seven years of continuous physical presence after having been "admitted in any status." We disagree and hold that parole as a Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), qualifies as an admission "in any status" for the purposes of 8 U.S.C. § 1229b(a)(2). We grant Garcia's petition and remand to the BIA for further proceedings consistent with our opinion.
Garcia was born in Mexico in 1984 to Mexican citizen parents. Garcia had a difficult and tragic childhood in Mexico. His father was incarcerated for murdering his mother, and in his youth Garcia suffered a closed head injury, a type of traumatic brain injury. Garcia entered the United States without inspection in 1992 and soon thereafter entered the foster care system in California. His long-term social worker described him as "respectful" and "good hearted." Garcia was diagnosed with bipolar disorder while in foster care. He
In April 1993, when Garcia was nine years old, the Los Angeles County Department of Children and Family Services ("DCFS") filed a petition with the state juvenile dependency court on behalf of Garcia because of allegations of severe physical abuse. On July 15, 1994, the court found Garcia a dependant child of the court, eligible for long-term foster care. The court also found "that it would not be in the best interests of the minor to be returned to his/her country of citizenship or the country of habitual residence of his/her parents." The court ordered that the DCFS "make the necessary application for special immigrant status as a permanent resident for [Garcia]."
On February 28, 2000, the immigration authorities approved Garcia's I-360 Petition and I-485 Application and gave him Legal Permanent Resident ("LPR") status. It took more than five years for Garcia's LPR status to be approved. A likely source for that delay may have been his missing birth certificate which was added to Garcia's file in April 1999. Garcia's I-181 Memorandum of Creation of Record of Lawful Permanent Residence, reflecting his approval for LPR status, lists "92" in the field "Year Adm[itted] to U.S. or Year of Change to present [Non-Immigrant] Class."
Garcia was arrested on November 13, 2005, for stealing a bicycle in Long Beach, California. The city prosecutor charged him with a misdemeanor for grand theft of property worth over $400, to which Garcia pleaded nolo contendere. See Cal.Penal Code § 487(a) (2005). Garcia was found guilty and received a suspended sentence of three years of summary probation and twenty days in county jail. On December 28, 2005, Garcia was arrested for shoplifting from a Target store in Manhattan Beach, California. Garcia was charged with petty theft with prior convictions, and with giving false information to a police officer. See Cal.Penal Code §§ 666, 148.9(a) (2005). He pleaded guilty to the theft charge, for which he received a suspended sentence of three years of formal probation and almost one year in county jail. The false information charge was dismissed.
Relying on these two convictions, in October 2006, the Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA") charging that Garcia was removable, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), for having, after admission,
An LPR is eligible for cancellation of removal if: (1) he has been "lawfully admitted for permanent residence for not less than 5 years"; (2) he "has resided in the United States continuously for 7 years after having been admitted in any status"; and (3) he "has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a). DHS opposed cancellation of removal on the ground that Garcia lacked the required seven years of continuous residence. Under the government's interpretation, the seven-year period ran from when Garcia received LPR status in 2000. Nearly six years had lapsed between when the California juvenile dependency court ordered DCFS's Special Immigrant Status Unit to file an immigration petition for Garcia in 1994, and when immigration authorities ultimately approved the petition. The government's interpretation did not credit any of that lapsed time, leaving Garcia narrowly short of the required seven years when he was convicted for the second theft offense in January 2006.
Garcia argued that he met the seven-year duration requirement on two separate grounds. First, Garcia contended that, under § 1255(h), he was deemed paroled into the United States—which counted as an admission "in any status" under § 1229b(a)(2)—upon the filing of his Special Immigrant Juvenile Status ("SIJS")-based immigration application in 1994, more than seven years before his second conviction. Second, he contended that his "admission" for permanent resident status could be imputed as of the date on which he became a ward of the State of California, his legal guardian, in the same way that such admission is imputed from a parent under Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir.2005) (holding that "for purposes of satisfying the seven-years of continuous residence `after having been admitted in any status' required for cancellation of removal under 8 U.S.C. § 1229b(a), a parent's admission for permanent resident status is imputed to the parent's unemancipated minor children residing with the parent"). The IJ rejected these arguments and denied cancellation of removal solely on the basis that Garcia did not have the required seven years of continuous residence.
The BIA affirmed. It reasoned that § 1255(h) provided that a Special Immigrant Juvenile is deemed to have been "paroled" into the United States for the purpose of adjustment of status, but that, under the plain language of § 1255(a), which permits the Attorney General to adjust the status of individuals who have been "inspected and admitted or paroled," being "paroled" into the United States is not the same as being "admitted." It also declined to extend the holding of our precedent in Cuevas-Gaspar to cover the legal guardianship between the State and its ward, concluding that such a relationship is materially distinguishable from that between parents and children. The BIA dismissed Garcia's appeal, and Garcia was removed to Mexico. Garcia petitions for a review of the BIA's decision.
The issues on review are (1) whether Garcia's SIJS-based parole for adjustment of status under § 1255(h) constitutes an admission "in any status" for purposes of eligibility for cancellation of removal under § 1229b(a)(2), and (2) whether Garcia should be imputed lawful admission from his legal guardian, the State of California. We "review de novo
Where the statute is unambiguous and congressional intent is clear "both the court and the agency must give effect to the unambiguously expressed intent of Congress." Id. at 1012 (quoting Chevron U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (internal quotation marks omitted)). Where congressional intent is unclear, a reviewing court must give deference to an agency's statutory interpretation provided it is not "arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 844, 104 S.Ct. 2778. "Chevron deference, however, does not apply to all statutory interpretations issued by agencies." Miranda Alvarado v. Gonzales, 449 F.3d 915, 921 (9th Cir.2006). An agency's statutory interpretation only "qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).
"It is well-established that Congress delegated to the BIA the authority to promulgate rules, on behalf of the Attorney General, that carry the force of law `through a process of case-by-case adjudication.'" Garcia-Quintero, 455 F.3d at 1012 (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). We give Chevron deference to BIA decisions that are issued under a "lawmaking pretense," a term borrowed from the Supreme Court's decision in Mead, 533 U.S. at 233, 121 S.Ct. 2164, capable of binding third parties. Garcia-Quintero, 455 F.3d at 1012 (citing Miranda Alvarado, 449 F.3d at 922). We have previously held, however, that BIA "interpretations promulgated in a non-precedential manner" do not carry the force of law and are not subject to Chevron deference. Id. at 1012. Because the BIA's decision under review here is a single-member unpublished decision, we do not give it Chevron deference because the "authority to make rules with force of law... was not invoked." Mead, 533 U.S. at 237, 121 S.Ct. 2164; see also Garcia-Quintero, 455 F.3d at 1013 (quoting 8 C.F.R. § 1003.1(g) for the proposition that "only `selected decisions of the [BIA] rendered by a three-member panel or by the [BIA] en banc may be designated to serve as precedents'"). Stated another way, if the BIA wants its decisions to be given Chevron deference, it must decide with a three-judge panel or en banc. An unpublished decision of a single board member is not entitled to Chevron deference.
But that does not end our consideration of whether deference to the BIA's decision is appropriate here. For even when Chevron deference is unwarranted because of the nature of the decision, we may accord deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Mead, 533 U.S. at 237, 121 S.Ct. 2164. Pursuant to Skidmore, a reviewing court "may properly
With these principles in mind, we consider the BIA's conclusion that parole as a Special Immigrant Juvenile under § 1255(h) does not qualify as an admission "in any status" for the purposes of eligibility for cancellation of removal under § 1229b(a).
The BIA dismissed Garcia's appeal on the basis that (1) under the plain language of the Immigration and Nationality Act, being "paroled" into the United States is not the same as being "admitted," and that (2) Garcia had not otherwise persuaded it that his initial parole into the United States qualified as an admission. This analysis was conclusory and did not take into account that both we and the BIA have construed "admitted in any status" as being broader than the statutorily-defined term "admitted." Nor did the BIA engage in a meaningful analysis to support its conclusion that SIJS-parolees are not admitted for the purposes of § 1229b(a)(2). Given its summary nature, the BIA's analysis does not merit significant deference. See Vasquez de Alcantar, 645 F.3d at 1101 n. 4 ("We afford little deference under Skidmore to the BIA's analysis in the present case, because it did not provide thorough reasoning and is conclusory."). We next address what we consider to be the controlling legal principles.
The phrase "admitted in any status" is not defined in the Immigration and Nationality Act ("INA"). The INA does, however, define "admission" and "admitted" to mean "the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A). "This definition is clear and unambiguous ... [and] we need not defer to the BIA with regard to the meaning of this term." Vasquez de Alcantar, 645 F.3d at 1100. There is no dispute here that Garcia was not admitted within the meaning of § 1101(a)(13)(A). See 645 F.3d at 1101.
We have previously concluded, however, that "there are instances where an alien is `admitted,' for the purposes of § 1229b(a)(2), without having been inspected and authorized to enter the United States at the border." Garcia-Quintero, 455 F.3d at 1016; see also Matter of Rosas-Ramirez, 22 I. & N. Dec. 616, 618 (BIA 1999) (declining to find "that reference to the definition of `admission' and `admitted' in [§ 1101](a)(13)(A) adequately answers the question of the intended scope of the term `admission' in section 237(a)(2)(A)(iii)"). "[T]he clause `in any status' has been interpreted to create alternative methods for aliens, who do not enter after inspection and authorization, to meet the `admitted in any status' requirement of § 1229b(a)(2)." Vasquez de Alcantar, 645 F.3d at 1100 (citing Cuevas-Gaspar,
The Government argues that SIJS-parolees are not "admitted in any status" under § 1229b(a)(2) because the plain language of the INA shows that parole is different from admission. The government points to the language of § 1101(a)(13)(B), which provides that "[a]n alien who is paroled under [§ 1182(d)(5)
The government's position is correct to a degree, but is not persuasive because it does not take into account all of the pertinent statutory language. Garcia was "deemed ... to have been paroled" under § 1255(h)(1), not paroled under § 1182(d)(5). Circuit and BIA precedent establish that, in the immigration context, not all paroles are treated equally. The definition, scope, and the consequences of parole may vary based on the wording and placement of a particular statutory provision. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1116 (9th Cir.2007) (holding that "conditional parolees" under § 1226(a) are not "paroled into the United States" within the meaning of § 1182(d)(5)(A)); Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 258 (BIA 2010) (holding that "conditional parole" under § 1226(a)(2)(B) is a "distinct and different procedure" from "parole" under § 1182(d)(5)(A)).
Parole under § 1255(h)(1) is different from parole under § 1182(d)(5). The plain language of § 1255(h) does not indicate that SIJS-parolees shall be considered paroled under § 1182(d)(5), nor that SIJS-parolees shall receive a parole card pursuant to § 1182(d)(5), as required by regulation. 8 C.F.R. § 235.1(h)(2); see Ortega-Cervantes, 501 F.3d at 1116 (finding "no indication that the government intended to parole Ortega-Cervantes into the United States pursuant to § 1182(d)(5)(A)" where the government did not "make[ ] its intention clear, for example, by expressly referencing § 1182(d)(5)(A) and by issuing an I-94 card."). That the INA provides that
Congress did not include SIJS-parolees in its express preclusion of § 1182(d)(5) parolees from admission eligibility. Under the doctrine of expressio unius est exclusio alterius, the statute's express preclusion of parolees under § 1182(d)(5) from admission, while remaining silent on the admission status of other parolees, could indicate that Congress intended not to preclude non-specified parolees from being considered to be admitted. See Washington v. Chu, 558 F.3d 1036, 1044 (9th Cir. 2009) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (quoting Beach v. Ocwen Fed. Bank, 523 U.S. 410, 418-19, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (internal quotation marks omitted) (emphasis omitted))). In this light, the precedents provided by the Government to show that parolees are more widely barred from being considered to have been admitted are unpersuasive because they stem from cases specifically involving parole under § 1182(d)(5) or from former phrases within the immigration code; none of them explicitly discusses SIJS-based parole, and so none is very helpful on the issue presented to us.
We conclude then that SIJS-based parolees are not expressly barred by Congress from being considered to have been "admitted in any status," and we next examine whether SIJS-based parole qualifies as one of the "alternative methods for aliens ... to meet the `admitted in any status' requirement" for cancellation of removal. Vasquez de Alcantar, 645 F.3d at 1101.
Garcia contends that his SIJS-based parole is soundly analogous to the DHS action in Garcia-Quintero that we held conferred admission "in any status" for the purposes of cancellation of removal. He contends that case law and legislative purpose support a conclusion that his SIJS-based parole was also an admission "in any status."
In Garcia-Quintero, we concluded that Garcia-Quintero's acceptance into the Family Unity Program ("FUP") rendered him "admitted in any status" for purposes of eligibility for cancellation of removal under § 1229b(a)(2). 455 F.3d at 1009. We reasoned that acceptance into the program gave unique benefits for a narrow group of aliens, including protection from deportation and authorization to work, and was "designed to help families stay together while the beneficiaries adjust to LPR status." Id. at 1009-10. Evaluating extant BIA precedent on the meaning of "in any status," we there concluded that the "limited benefits and protections" of the FUP gave its beneficiaries a status. Id. at 1018. We took note that the section of the FUP regulations governing travel outside of the United States included the terms "status" and "admitted." Id.
Since then we have twice considered aliens' requests to extend the holding of Garcia-Quintero to other situations, and our opinions declining to do so have refined the criteria necessary to conclude that a DHS action creates an alternative method for an alien to meet the "admitted in any status" requirement. In Vasquez de Alcantar, we held that neither the filing nor the approval of an alien's Form I-130 Petition for Alien Relative, which allows him to apply for adjustment of status,
In an opinion filed the same day as Vasquez de Alcantar, we similarly concluded that employment authorization does not create an alternative method for an alien to meet the "admitted in any status" requirement. Guevara, 649 F.3d at 1094. In so holding, we reasoned that "the FUP was enacted by Congress to assist a very narrow group of aliens" and set forth heightened eligibility requirements. Id. at 1093. We noted that the program's purpose was "to prevent the separation of families and to provide a means by which a qualifying family member ... could eventually apply for permanent residence status." Id. We clarified that Garcia-Quintero "was not based upon the fact that FUP participants were allowed to work ... [but] instead focused on the aliens' acceptance into the FUP." Id. at 1093-94. Employment authorization was more provisional for Guevara than for FUP participants. Guevara received authorization pending his application for adjustment of status. See 8 C.F.R. § 274a.12(c)(9). Unlike other provisions conferring authorization incident to preexisting status, § 274a.12(c) applies to aliens who "may or may not have any legal status." 649 F.3d at 1092. Employment authorization for aliens in that residual category could be "terminated or revoked at any time" for certain reasons. Id. We concluded that there was no support "for concluding that Congress intended to make a whole class of aliens (not inspected or authorized) `admitted' by the mere grant of an employment authorization." Id.
Under the principles established in Garcia-Quintero and the cases that have followed it, we perceive that SIJS-based parolees are similarly situated to FUP participants and qualify as having been "admitted in any status." As is the case for FUP participants, SIJS-parolees are a narrow class of juvenile aliens who must meet heightened eligibility requirements to apply to be classified as a Special Immigrant Juvenile, and SIJS-based parole affords particular benefits. To qualify for SIJS, an alien must be declared to be a court dependant eligible for long-term foster care due to abuse, neglect, or abandonment, and a judge or administrative body must find that it is not in the juvenile's best interest to return to his country
These special eligibility requirements and benefits show a congressional intent to assist a limited group of abused children to remain safely in the country with a means to apply for LPR status. Such an intent, while not identical to that involved in Garcia-Quintero, is analogous to Congress's goal, in enacting the FUP, of "prevent[ing] the separation of families and [providing] a means by which a qualifying family member... c[an] eventually apply for permanent residence status." Guevara, 649 F.3d at 1093 (discussing rationale behind Garcia-Quintero's holding). A Special Immigrant Juvenile like Garcia does not have the same family to be kept together that was involved in Garcia-Quintero, because the state and foster homes are his family. But he was given similar special recognition and opportunity to make contacts in this country, and for that reason should not be wrenched away without adequate process. That Congress has subsequently mandated expeditious adjudication of SIJS applications may be viewed as a clarification by Congress that it does in fact desire extra protection for SIJS-eligible minors. The Vasquez de Alcantar court noted that similar subsequent statutory enactments to the FUP were relevant to the holding in Garcia-Quintero. 645 F.3d at 1106.
Congress's extension of certain protections to FUP participants and SIJS parolees gives those narrow groups of aliens strong claims to remain in this country. Our decisions in Vasquez de Alcantar and Garcia-Quintero emphasized that the much broader groups of aliens who have filed I-130 petitions or sought employment authorization are entitled only to a chance to seek admission. Those groups have much weaker claims to remain in this country. An I-130 petitioner seeks admission and legal status, but is not entitled to it. Even an approved I petition is only an intermediate and contingent step toward admission. See Vasquez de Alcantar, 645 F.3d at 1103 (citing United States v. Elrawy, 448 F.3d 309, 313-14 (5th Cir.2006); Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.2005)). Aliens seeking employment authorization under 8 C.F.R. § 274a.12(c) pending adjustment of status enjoy similarly provisional benefits. Immigration authorities have discretion to grant or deny authorization, and may revoke an earlier authorization for certain reasons not applicable here. See Guevara, 649 F.3d at 1092 (citations omitted). Congress's decision to permit certain undocumented aliens to seek adjustment of status "only confers the right to apply." Id. at 1093. For these groups of aliens, the completion of an intermediate step toward admission does not render them "admitted in any status."
It is not surprising that the SIJS regulations do not mention admission, as the FUP regulations do. The FUP regulations permit beneficiaries to travel abroad without penalty, although they must seek prior authorization. That policy furthers the FUP's goal of keeping families together in this country, while allowing them to maintain ties to familial and social networks in their countries of origin. By contrast, SIJS-based parolees' claims to remain in this country derive from their status as juvenile dependants of the court and their lack of viable family ties. Cf. 8 C.F.R. § 204.11(a). Such parolees are unlikely to have occasion to travel abroad while their applications are pending and they remain dependants of the court. There would be no need for regulations governing the status they would enjoy upon re-entry after travel abroad. While we found the FUP regulations' text persuasive in reaching our holding in Garcia-Quintero, we did not think it as materially significant as statutory text, legislative intent, and case law. See 455 F.3d at 1018-19. The absence of analogous provisions in the SIJS regulations does not persuade us that Congress intended to deny SIJS-based parolees eligibility for cancellation of removal.
Because SIJS-based parole is analogous to one of the "alternative methods for aliens ... to meet the `admitted in any status' requirement" for cancellation of removal, we hold that the grant of SIJS-based parole qualifies as an admission "in any status" for cancellation of removal purposes. See Vasquez de Alcantar, 645 F.3d at 1100. On this basis Garcia has accrued the required seven years of continuous presence after being "admitted in any status," and he is eligible for cancellation of removal.
