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Rubio v. Lynch

United States Court of Appeals, Fifth Circuit

May 21, 2015

RAMIRO CONSTANTINO TULA RUBIO, also known as Ramiro Tula, Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL, Respondent

Page 289

Petition for Review of an Order of the Board of Immigration Appeals.

For Ramiro Constantino Tula Rubio, also known as: Ramiro Tula, Petitioner: Matthew Lorn Hoppock, Esq., Attorney, Dunn & Davison, L.L.C., Kansas City, MO.

For Loretta Lynch, U.S. Attorney General, Respondent: Andrea Niki Gevas, Tangerlia Cox, Jeffrey Ronald Meyer, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

Before STEWART, Chief Judge, HAYNES, Circuit Judge, and BROWN, District Judge.[*]

OPINION

Page 290

HAYNES, Circuit Judge:

Ramiro Constantino Tula-Rubio, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals, which held he was ineligible for cancellation of removal because he was not " admitted in any status" at least seven years prior to his commission of a state offense as required by 8 U.S.C. § 1229b(a)(2). We GRANT Tula-Rubio's petition.

I. Background

In 1992, at the age of four, Tula-Rubio entered the United States while riding in a car driven by a U.S. citizen, which was physically waved through the port of entry by an immigration officer. In 2002, Tula-Rubio became a lawful permanent resident of the United States. While residing in the United States as a lawful permanent resident, Tula-Rubio was convicted of the Texas state offenses of possession of marijuana and evading arrest or detention, which he committed in May 2006. After a trip to Mexico in 2013, he attempted to return to the United States by presenting his permanent resident card. He was subsequently served a Notice to Appear and charged with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) & (II), due to his criminal history.

At a proceeding before an immigration judge, Tula-Rubio admitted in large part to the charges of removability. The judge sustained the charges and held that Tula-Rubio was removable. Tula-Rubio then filed an application for cancellation of removal pursuant to § 1229b(a). He argued that he satisfied the requirement of " resid[ing] in the United States continuously for 7 years after having been admitted in any status," § 1229b(a)(2), because he resided in the United States after lawfully entering in 1992 pursuant to the wave of an immigration officer's hand while he was a passenger of a car. Tula-Rubio did not offer any evidence that he received a border crossing card or visa when he entered the United States in 1992. The immigration judge pretermitted his application for cancellation of removal, holding that Tula-Rubio's entry in 1992 did not constitute an " admission in any status" under § 1229b(a)(2). The immigration judge reached this holding, in part, by reasoning that the term " status" denotes someone who possesses a certain legal standing and does not encompass those who have no legal right to enter or remain in the United States. The immigration judge thus ordered Tula-Rubio's removal to Mexico.

Tula-Rubio appealed to the Board of Immigration Appeals (" the Board" ). In a brief, unpublished order, the Board dismissed Tula-Rubio's appeal, agreeing with the immigration judge that his 1992 entry to the United States did not constitute an " admission in any status." Tula-Rubio timely petitioned this court for review of the Board's decision.

II. Standard of Review

Although we generally lack jurisdiction to review Board decisions to deny discretionary relief, we retain authority to review " questions of law," including whether a petitioner is ineligible for discretionary relief in the form of cancellation of removal. 8 U.S.C. § 1252(a)(2)(B), (D); see Rodriguez-Be ...


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