Jose Zecena Osorio v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Jose David Zecena Osorio. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DENIED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13105

Date Filed: 05/31/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13105
Non-Argument Calendar
________________________
Agency No. A091-735-587

JOSE DAVID ZECENA OSORIO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 31, 2016)
Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Jose Davis Zecena Osorio petitions for review of the Board of Immigration
Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ’s”) denial of
his motion to terminate removal proceedings. On petition for review, Zecena
Osorio argues that the BIA erred in determining that he was properly charged as
inadmissible under the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(A)(i), because he lawfully entered into the United States holding
temporary-resident status, which meant that he had been admitted or paroled.
Upon review of the record and the parties’ briefs, we deny Zecena Osorio’s
petition.
We review legal determinations of the BIA and the IJ de novo. Ayala v.
U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010). We review the BIA’s
decision as the final judgment, unless the BIA expressly adopts the IJ’s decision.
Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). When the BIA explicitly
agrees with the findings of the IJ, we review the decisions of both the BIA and the
IJ as to those issues. Ayala, 605 F.3d at 948. We defer to the Department of
Homeland Security’s (“DHS’s”) “interpretation of its own regulations unless its
interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Assa’ad
v. U.S. Att’y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003) (quoting Auer v. Robbins,
519 U.S. 452, 461, 117 S. Ct. 905, 911, 137 L. Ed. 2d 79 (1997)).

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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) provides for two bases for removability including grounds of
inadmissibility under 8 U.S.C. § 1182 and grounds of deportability under 8 U.S.C.
§ 1227, which governs the removal of aliens admitted to the United States.
Dormescar v. U.S. Att’y Gen., 690 F.3d 1258, 1260–61 (11th Cir. 2012). Prior to
the adoption of IIRIRA, “there was a fundamental distinction between excludable
aliens,” who sought admission but had not yet achieved it, “and deportable aliens,”
who had succeeded in either legally or illegally entering the country. Id. at 1260.
Under IIRIRA, an alien may now be considered inadmissible for being in the
United States without being admitted or paroled. 8 U.S.C. § 1182(a)(6)(A)(i).
When an alien is charged with inadmissibility, he has the burden of proving that he
is “‘clearly and beyond doubt’” entitled to admission and that he is not
inadmissible under any ground enumerated in 8 U.S.C. § 1182. Garces v. U.S.
Att’y Gen., 611 F.3d 1337, 1345–46 (11th Cir. 2010) (citing 8 U.S.C.
§ 1229a(c)(2)(A)).
The distinction between inadmissibility and deportability turns on the alien’s
“status” rather than his physical location. Poveda v. U.S. Att’y Gen., 692 F.3d
1168, 1174–75 (11th Cir. 2012). An alien in the United States who has been
admitted is subject to deportability grounds for removability, while an alien who
has not been, regardless of his location, is subject to inadmissibility grounds. Id. at
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1175. An “admission” is defined as “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).
The Immigration Reform Control Act (“IRCA”) provides that an alien can
adjust his status to that of “lawfully admitted for temporary residence” if he can
establish that he entered the United States before January 1, 1982, and has resided
in the United States continuously since such date. 8 U.S.C. § 1255a(a)(2)(A); see
also 8 C.F.R. § 245a.2 (detailing the process to apply for temporary-resident
status). An alien who is provided lawful temporary-resident status under IRCA
can then have his status adjusted to “lawfully admitted for permanent residence” if
he meets certain requirements, including the demonstration of certain basic
citizenship skills. 8 U.S.C. § 1255a(b). During the period of time that an alien
receives lawful temporary-resident status, he is permitted to return to the United
States after brief and casual trips abroad, which reflect an intention on the part of
the alien to achieve lawful permanent-resident status. 8 U.S.C. § 1255a(b)(3)(A);
see 8 C.F.R. § 245a.2(m)(2) (providing that an alien whose application for
temporary-resident status has been approved may be admitted to the United States
as a returning temporary resident if certain conditions are met). The Attorney
General shall terminate an alien’s temporary-resident status if it appears that the
alien in question was not eligible for such status. 8 U.S.C. § 1255a(b)(2).
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Termination of the status of an alien previously adjusted to lawful temporary
resident “shall act to return such alien to the unlawful status held prior to the
adjustment.” 8 C.F.R. § 245a.2(u)(4).
We held in the pre-IIRIRA context that the plain language of 8 U.S.C.
§ 1255a(b)(3)(A), which allows temporary residents to travel abroad for brief and
casual trips, does not affect the definition of “entry” for purposes of determining
whether a legalization applicant should be placed in exclusion or deportation
proceedings. See Assa’ad, 332 F.3d at 1336, 1340–41 (concluding that it was
appropriate for an alien who entered the United States while her legalization
application was pending and without travel documents to be placed in exclusion
rather than deportation proceedings when her parole was subsequently terminated).
Moreover, we have noted that an alien holding permanent-resident status who
returns from abroad is not regarded as seeking an “admission” each time he reenters the United States. Poveda, 692 F.3d at 1179.
Accordingly, the BIA did not err in affirming the IJ’s denial of Zecena
Osorio’s motion to terminate his removal proceedings. In particular, the BIA did
not err in determining that Zecena Osorio was properly charged as inadmissible
because he reverted back to his prior unlawful status of entry without inspection at
the time that his status as a temporary resident was terminated under the plain
language of 8 C.F.R. § 245a.2(u)(4). Moreover, Zecena Osorio’s lawful reentry
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into the United States in 1996 is irrelevant to the determination of whether he is
subject to charges of inadmissibility because he was able to lawfully reenter at the
time based on his temporary-resident status, which was subsequently terminated.
PETITION DENIED.

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