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De Rodriguez v. Holder

United States Court of Appeals, Ninth Circuit

July 30, 2013

Rosa Delicia Galindo de Rodriguez, Petitioner,
v.
Eric H. Holder, Jr., Attorney General, Respondent. Rosa Delicia Galindo de Rodriguez, Petitioner,
v.
Eric H. Holder, Jr., Attorney General, Respondent.

Argued and Submitted June 5, 2013—Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-217-735

Philippe M. Dwelshauvers, Fresno, California, for Petitioner.

Jonathan Aaron Robbins (argued), Trial Attorney, Tony West, Assistant Attorney General, William C. Peachey, Assistant Director, and Rebecca Hoffberg Phillips, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: Stephen S. Trott and William A. Fletcher, Circuit Judges, and Sidney H. Stein, District Judge. [*]

SUMMARY[**]

Immigration

The panel granted Rosa Galindo de Rodriguez's petition for review of the Board of Immigration Appeals' decision finding her ineligible for cancellation of removal, but denied her petition from the denial of her motion to reopen.

The panel held that the BIA erred in concluding that Galindo's residence "after having been admitted in any status" was not continuous as required by 8 U.S.C. § 1229b(a)(2) because she took a thirteen-day trip to Mexico pursuant to a grant of advance parole. The panel also held that § 1229b(a)(2) only requires seven years of continuous residence; it does not require continuous status of any particular kind, and the lawfulness of her presence in the United States is immaterial to the continuity of residence. The panel held, however, that the BIA did not abuse discretion in denying Galindo's motion to reopen seeking to retract her admissions and concessions of removability.

OPINION

STEIN, District Judge

Rosa Delicia Galindo de Rodriguez ("Galindo") petitions for review of two final orders of the Board of Immigration Appeals ("BIA"), the first finding her ineligible for cancellation of removal and the second denying her motion to reopen. In her first petition, Galindo contends that the BIA erred in finding that she had not "resided in the United States continuously for 7 years after having been admitted in any status"—a requirement for certain legal permanent residents ("LPRs") to be eligible for cancellation of removal. See Immigration and Nationality Act ("INA") § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). The BIA found that her thirteen-day trip to Mexico, pursuant to an authorization of advance parole, severed the continuity of her United States residence. That conclusion cannot be squared with the plain text of the statute, which defines a person's residence as her "principal, actual dwelling place." See INA § 101(a)(33), 8 U.S.C. § 1101(a)(33).

Before this Court, the government also argues that she was required to maintain a lawful admitted status throughout her seven years of residence. But the provision at issue only requires seven years of continuous residence; it does not require continuous status of any particular kind. The lawfulness of her presence in the United States "after having been admitted in any status" is immaterial to the continuity of her residence. See 8 U.S.C. § 1229b(a)(2).

In her second petition, Galindo contends that the BIA should have reopened the case to allow her to retract her concession of removability and argue based on intervening case law that the Immigration Judge ("IJ") should have suppressed her initial confession to her alien-smuggling crime. This petition is meritless. Galindo presents no authority to support her argument that she may retract her binding concessions of removability. Accordingly, the Court grants her first petition, vacates ...


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