Man’s Illegal Entry No Bar For Deportation Relief: 9th Circ.
The Ninth Circuit has ruled that a Mexican native was not ineligible for deportation relief because of his illegal entry to the United States, vacating a Board of Immigration Appeals decision that held that he couldn’t prove he was continuously present in the country for seven years.
The federal government had argued that Abraham Villalba Saldivar was not eligible for cancellation of removal following a drug possession conviction because his entry to the country in 1993 when he was “waved across the border” was illegal.
It argued that he, therefore, did not fit under the “admitted in any status” phrase that would have made him eligible for the relief under the Immigration and Nationality Act, but a three-judge panel disagreed in a 2-1 decision Tuesday, saying “any is any, and a status is a status, be it lawful or unlawful.”
Saldivar appealed to the Ninth Circuit in July 2013 after the BIA upheld an immigration judge’s ruling that his entry to the country in 1993 couldn’t be considered an admission “in any status.”
“Under the facts as we assume them to be, Saldivar was admitted to the United States in 1993, albeit in an unlawful status,” the panel majority said. “Because he established continuous residence in the United States for more than seven years after this admission, the BIA erred as a matter of law in concluding that Saldivar was statutorily ineligible for cancellation of removal.”
Saldivar was waved through the border in 1993 following inspection by an immigration officer in San Ysidro, California, when he was 10, according to the opinion. He married a U.S. citizen in 2001 and together they have three children, all of whom are American citizens, the opinion said.
In 2006, Saldivar became a lawful permanent resident. Roughly six years later, he was convicted of possession of methamphetamine and possession of paraphernalia for smoking a controlled substance, according to the opinion.
A short time later, he was served with a notice to appear by the U.S. Department of Homeland Security on charges that he was deportable because of his drug conviction. An immigration judge then rendered him deportable and Saldivar applied for cancellation of removal, the opinion said.
Ultimately, the immigration judge ruled that Saldivar could not establish seven years of continuous residency after being “admitted in any status” even if he had been waved through in 1993 and that the entry could not be considered an admission “in any status” on the ground that “mistaken admissions do not confer a status, either permanent or otherwise.”
The judge also ruled that Saldivar could not rely on his lawful permanent resident status, either, on the ground that his drug conviction occurred less than seven years after he received his green card.
Saldivar appealed to the BIA, which upheld the judge’s decision.