JOSE HERNANDEZ V. MERRICK GARLAND, No. 21-70493 (9th Cir. 2022)
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The Board of Immigration Appeals (BIA) denied Petitioner’s cancellation of removal concluding that his receipt of temporary protected status (TPS) was not admission and, therefore, he could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission. The BIA also denied Petitioner’s application for asylum concluding that his 2016 domestic-violence conviction was a “particularly serious crime” that barred him from relief. Petitioner challenges the BIA’s decision raising two primary arguments: (1) under Ninth Circuit precedent, his TPS does constitute an admission “in any status” under the cancellation statute, 8 U.S.C. Section 1229b(a), and (2) the BIA applied an improper legal standard in deciding that his 2016 conviction was for a particularly serious crime.
The Ninth Circuit filed: (1) an order amending the opinion filed June 28, 2022, otherwise denying the petitions for rehearing and rehearing en banc and stating that no further petitions for rehearing would be accepted, and (2) an amended opinion denying Petitioner’s petition for review of the BIA decision. In the amended opinion, the panel held that: (1) Petitioner’s receipt TPS was not an admission, and he, therefore, could not meet the statutory requirement that he has seven years of continuous residence in the United States after admission for purposes of lawful permanent resident cancellation of removal; and (2) the BIA properly concluded that Petitioner’s domestic-violence conviction was a particularly serious crime (“PSC”) that barred him from obtaining asylum. The panel rejected Petitioner’s argument that the BIA legally erred in its PSC determination by considering the cumulative effect of his three domestic-violence convictions.
Court Description: Immigration The panel filed: (1) an order amending the opinion filed June 28, 2022, otherwise denying the petitions for rehearing and rehearing en banc and stating that no further petitions for rehearing would be accepted; and (2) an amended opinion denying Jose Alberto Hernandez’s petition for review of a decision of the Board of Immigration Appeals. In the amended opinion, 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 BIA 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 HERNANDEZ V. GARLAND 3 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. 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 specific references to Hernandez’s third domestic-violence conviction made clear that it did not hold that all three convictions, considered collectively, constituted a particularly serious crime. Rather, the agency held only that the third conviction was particularly serious in light of the previous convictions. The panel concluded that it need not address whether the BIA properly considered Hernandez’s prior convictions in deciding that his third conviction was particularly serious because Hernandez did not “specifically 4 HERNANDEZ V. GARLAND and distinctly” argue that this was error in his opening brief, and thus forfeited the issue.
This opinion or order relates to an opinion or order originally issued on June 28, 2022.
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