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Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840
603
Matter of Mario A. FAJARDO ESPINOZA, Respondent
Decided June...
Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840
604
the respondent with removability as an alien convicted of a ...
Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840
605
offense that renders him removable. In 2011, the respondent ...
Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840
606
The Supreme Court’s analysis in Chevron consists of two step...
Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840
607
congressionally mandated benefits; (2) the FUP applies to a ...
Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840
608
absurd consequences that would otherwise result. See Matter ...
Pub. L. 101-649 Immigration Act of 1990
TITLE III--FAMILY UNITY AND TEMPORARY PROTECTED STATUS
Sec. 301. Family unity.
Sec...
(d) Temporary Disqualification From Certain Public Welfare Assistance.-- Aliens provided the
benefits of this section by v...
§236.10 Description of program.
The family unity program implements the provisions of section 301 of the Immigration Act o...
May 5, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or
(b)(2)(C) of section ...
denial. However, if the applicant is found not to be eligible for benefits under §236.13(b), the Service
reserves the righ...
An alien granted Family Unity Program benefits who intends to travel outside the United States
temporarily must apply for ...
[62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 76 FR 53791, Aug. 29, 2011]
Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)
Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)
Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)
Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)
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Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)

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Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)

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Matter of FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)

  1. 1. Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840 603 Matter of Mario A. FAJARDO ESPINOZA, Respondent Decided June 8, 2015 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued the requisite 7 years of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed. Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed. FOR RESPONDENT: Martin Zaehringer, Esquire, Ventura, California BEFORE: Board Panel: PAULEY and GREER, Board Members; O’HERRON, Temporary Board Member. PAULEY, Board Member: In a decision dated May 7, 2013, an Immigration Judge found the respondent removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), as an alien convicted of a controlled substance violation, denied his applications for cancellation of removal and voluntary departure, and ordered him removed from the United States. The respondent has appealed from that decision. The appeal will be dismissed. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of Mexico who entered the United States without inspection in 1996. On November 13, 2002, while he was in the United States, the respondent was granted Family Unity Program (“FUP”) benefits. His status was later adjusted to that of a lawful permanent resident on April 25, 2005. On September 4, 2012, the respondent was convicted of possession of a controlled substance in violation section 11377(a) of the California Health and Safety Code, based on a guilty plea to the charge that he committed the offense on June 14, 2011. As a result, the Department of Homeland Security (“DHS”) issued a notice to appear on March 11, 2013, charging
  2. 2. Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840 604 the respondent with removability as an alien convicted of a violation of a State law relating to a controlled substance. The Immigration Judge determined that the respondent was removable based on the conviction documents included in the record. He also concluded that the respondent was ineligible for cancellation of removal because, at the time he committed the removable offense, he had not accrued 7 years of continuous residence in the United States “after having been admitted in any status,” as required by section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2012). The Immigration Judge denied the respondent’s request for voluntary departure as a matter of discretion. The respondent contends that he is not removable as charged because the conviction documents do not establish that he was convicted of a controlled substance violation. He also argues that his grant of FUP benefits in 2002 should constitute an “admission” and that he therefore accrued the requisite continuous residence to establish eligibility for cancellation of removal under section 240A(a)(2) of the Act. Finally, the respondent challenges the Immigration Judge’s denial of his request for voluntary departure. II. ANALYSIS A. Removability The respondent’s conviction record includes a minute order and felony complaint, which establish that he pled guilty to possession of methamphetamine, a federally controlled substance, in violation of section 11377(a) of the California Health and Safety Code. The Immigration Judge concluded that this record supported a finding that the respondent is removable under section 237(a)(2)(B)(i) of the Act as an alien convicted of a controlled substance violation. We agree. See Coronado v. Holder, 759 F.3d 977, 984–86 (9th Cir. 2014) (holding that section 11377(a) is divisible and that “[w]here the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint”). B. Cancellation of Removal To be eligible for cancellation of removal, the respondent must establish, inter alia, that he “resided in the United States continuously for 7 years after having been admitted in any status.” Section 240A(a)(2) of the Act. According to section 240A(d)(1) of the Act, continuous residence is deemed to end when an alien has committed a certain type of
  3. 3. Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840 605 offense that renders him removable. In 2011, the respondent committed a removable offense under section 237(a)(2)(B)(i), which stopped the accrual of his continuous residence. The question before us is whether his period of residence began in 2005, when he adjusted his status, or in 2002, when he was granted FUP benefits. Although the respondent was present in the United States in 2002, the Immigration Judge determined that his continuous residence did not commence at that time because the grant of FUP benefits does not constitute an “admission” as defined in section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2012).1 In reaching this conclusion, the Immigration Judge applied our holding in Matter of Reza, 25 I&N Dec. 296 (BIA 2010). The respondent contends that Matter of Reza was wrongly decided and that we should instead follow Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), a decision of the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises. We conclude that our more recent precedent should control in this case. Prior to Matter of Reza, the Ninth Circuit held that a grant of FUP benefits constitutes being “admitted in any status” for purposes of establishing eligibility for cancellation of removal. Garcia-Quintero v. Gonzales, 455 F.3d at 1018−20. The focus of the court’s decision, which was rendered without the benefit of our reasoning in Reza, was more on the question whether a grant of FUP benefits conferred a “status” than on whether it constitutes an “admission.” We do not dispute that an alien who was granted FUP benefits has a “status” for immigration purposes. See Matter of Blancas, 23 I&N Dec. 458, 460 (BIA 2002) (describing the broad definition of the phrase “in any status,” as used in section 240A(a)(2) of the Act). However, we also do not consider the court’s finding regarding the term “admission” to have been dictated by the plain or unambiguous language of the statute. See Garcia-Quintero v. Gonzales, 455 F.3d at 1018−19. We respectfully believe that our subsequent precedent decision in Reza is reasonable and therefore entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–83 (2005) (“A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”). 1 According to section 101(a)(13)(A) of the Act, “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”
  4. 4. Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840 606 The Supreme Court’s analysis in Chevron consists of two steps that courts routinely apply when reviewing an agency’s interpretation of a statute. First, the court analyzes the statutory language to determine whether it is ambiguous. If the statute allows for more than one reasonable interpretation, the agency’s interpretation controls unless it is unreasonable. The Ninth Circuit accords Chevron deference to our reasonable legal interpretation of an ambiguous statute only if we publish our decision or rely on a directly controlling published decision. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010). When a conflict in statutory interpretation exists between Board precedent and case law of the circuit in which the case arises, we, like the courts, must apply the first step of Chevron to determine whether to apply the law of the circuit or our own precedent. See, e.g., Matter of Douglas, 26 I&N Dec. 197, 199–200 (BIA 2013). In certain circumstances, we have determined that the statutory scheme as a whole requires that the otherwise clear and unambiguous definition of the terms “admitted” and “admission” in section 101(a)(13)(A) of the Act must yield, specifically where absurd or bizarre results would otherwise ensue. See Matter of Chavez-Alvarez, 26 I&N Dec. 274, 276−77 (BIA 2014), rev’d on other grounds, Chavez-Alvarez v. Att’y Gen. of U.S., 783 F.3d 478 (3d Cir. 2015). The Ninth Circuit has taken a similar approach. See, e.g., United States v. Hernandez-Arias, 757 F.3d 874, 880 (9th Cir. 2014); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1100−01 (9th Cir. 2014) (stating that the definition of the term “admitted” is “clear and unambiguous,” but examining “alternative methods” for interpreting the phrase “admitted in any status”). We must decide whether, in order to avoid absurd results, an alien granted FUP benefits should be deemed to have been “admitted in any status,” notwithstanding the otherwise clear statutory definition of the term “admitted.” In Garcia-Quintero, the Ninth Circuit concluded that being granted FUP benefits constitutes being “admitted in any status.”2 Garcia-Quintero v. Gonzales, 455 F.3d at 1020. Although the court expressly considered the “plain meaning” of the phrase “admitted in any status,” it did so in conjunction with other factors, including the legislative history of the statute and both our precedent decisions and its own case law, rather than concluding that the plain meaning alone was unambiguous. Id. at 1018–19. Subsequently, in Garcia v. Holder, 659 F.3d 1261, 1270 (9th Cir. 2011), a case involving a Special Immigrant Juvenile parolee, the court summarized the factors it considered in Garcia-Quintero when determining that an alien’s grant of FUP benefits constitutes being “admitted in any status.” These factors included that (1) FUP participants are accorded 2 The Ninth Circuit expressly accorded a low level of deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to our prior unpublished decision in that case. 2011 >>>
  5. 5. Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840 607 congressionally mandated benefits; (2) the FUP applies to a narrow class of aliens subject to heightened eligibility requirements; (3) the FUP regulations gave participants an immigration status; and (4) Congress later clarified and reauthorized the FUP. Applying those factors, the Ninth Circuit concluded that being granted parole as a Special Immigrant Juvenile also constituted being “admitted in any status.” Id. at 1272. Significantly, the Ninth Circuit explained in Garcia that a Special Immigrant Juvenile parolee, like an alien granted FUP benefits, was not “admitted” under the clear and unambiguous definition of that term in section 101(a)(13)(A) of the Act. Id. at 1267. However, the court applied its own jurisprudence interpreting the phrase “admitted in any status” in section 240A(a)(2) of the Act, taking into consideration the court’s view of congressional intent within the broader statutory scheme of the Act. Id. at 1269−72. We agree with the Ninth Circuit that the “clear and unambiguous” definition of the terms “admitted” and “admission” in the Act must yield in certain circumstances. However, we have only so construed these terms in the context of adjustment of status and then only to avoid absurd or bizarre results. Matter of Reza, 25 I&N Dec. at 299–300; see also, e.g., Matter of Chavez-Alvarez, 26 I&N Dec. at 276–77 (holding that an alien’s adjustment of status constitutes an “admission” for purposes of removability for having been convicted of an aggravated felony after admission). For example, consistent with this narrow tailoring, we have found that a grant of asylum status does not constitute an admission. Matter of V-X-, 26 I&N Dec. 147, 150–52 (BIA 2013). For all of these reasons, we respectfully disagree with the Ninth Circuit’s conclusion that the phrase “admitted in any status” includes a grant of FUP benefits. Therefore, in the interest of uniformity, we will apply our holding in Matter of Reza nationwide. Likewise, for the reasons stated in Matter of Reza and Matter of V-X-, we also disagree with the respondent’s alternative contentions that, notwithstanding the statutory requirements of section 101(a)(13)(A) of the Act, other applications or procedures should qualify as admissions, including the filing of a visa petition or the submission of a biometric information form in conjunction with an application for FUP benefits. See also Guevara v. Holder, 649 F.3d 1086, 1091 (9th Cir. 2011) (holding that a grant of employment authorization pending adjustment of status does not constitute “admission in any status”); Vasquez de Alcantar v. Holder, 645 F.3d at 1102 (holding that approval of a visa petition does not constitute “admission in any status”). As our published decisions demonstrate, adjustment of status may qualify as an “admission” without satisfying the definition in section 101(a)(13)(A) because of the bizarre and
  6. 6. Cite as 26 I&N Dec. 603 (BIA 2015) Interim Decision #3840 608 absurd consequences that would otherwise result. See Matter of Chavez-Alvarez, 26 I&N Dec. at 276−77; Matter of V-X-, 26 I&N Dec. at 150–51; Matter of Alyazji, 25 I&N Dec. 397, 399 (BIA 2011); Matter of Reza, 25 I&N Dec. at 298; Matter of Rodarte, 23 I&N Dec. 905, 908 (BIA 2006); see also Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014). That is not the case here. C. Voluntary Departure The Immigration Judge denied the respondent’s request for voluntary departure as a matter of discretion. Therefore the respondent’s argument regarding his statutory eligibility for voluntary departure does not meaningfully challenge the Immigration Judge’s decision. In any case, the respondent’s 2012 controlled substance conviction renders him ineligible for voluntary departure under section 240B(b)(1)(B) of the Act, 8 U.S.C. § 1229c(b)(1)(B) (2012), because it precludes him from demonstrating that he has been a person of good moral character for the last 5 years.3 See section 101(f)(3) of the Act. Accordingly, the respondent’s appeal will be dismissed. ORDER: The appeal is dismissed. 3 Proceedings before the Immigration Judge started and ended within 1 year of the respondent’s 2012 conviction. Therefore, even if the Ninth Circuit were to consider the relevant period of good moral character to be 5 years prior to the respondent’s initial voluntary departure request, rather than treating the application as a continuing one, the bar would apply. Cf. Aragon-Salazar v. Holder, 769 F.3d 699 (9th Cir. 2014) (requiring an alien to demonstrate good moral character only during the 7-year period before filing an application for special rule cancellation of removal).
  7. 7. Pub. L. 101-649 Immigration Act of 1990 TITLE III--FAMILY UNITY AND TEMPORARY PROTECTED STATUS Sec. 301. Family unity. Sec. 302. Temporary protected status. Sec. 303. Special temporary protected status for Salvadorans. SEC. 301. FAMILY UNITY. (a) Temporary Stay of Deportation and Work Authorization for Certain Eligible Immigrants.-- The Attorney General shall provide that in the case of an alien who is an eligible immigrant (as defined in subsection (b)(1)) as of May 5, 1988, who has entered the United States before such date, who resided in the United States on such date, and who is not lawfully admitted for permanent residence, the alien-- (1) may not be deported or otherwise required to depart from the United States on a ground specified in paragraph (1), (2), (5), (9), or (12) of section 241(a) of the Immigration and Nationality Act (other than so much of section 241(a)(1) of such Act as relates to a ground of exclusion described in paragraph (9), (10), (23), (27), (28), (29), or (33) of section 212(a) of such Act), and (2) shall be granted authorization to engage in employment in the United States and be provided an "employment authorized" endorsement or other appropriate work permit. (b) Eligible Immigrant and Legalized Alien Defined.--In this section: (1) The term "eligible immigrant" means a qualified immigrant who is the spouse or unmarried child of a legalized alien. (2) The term "legalized alien" means an alien lawfully admitted for temporary or permanent residence who was provided-- (A) temporary or permanent residence status under section 210 of the Immigration and Nationality Act, (B) temporary or permanent residence status under section 245A of the Immigration and Nationality Act, or (C) permanent residence status under section 202 of the Immigration Reform and Control Act of 1986. (c) Application of Definitions.--Except as otherwise specifically provided in this section, the definitions contained in the Immigration and Nationality Act shall apply in the administration of this section.
  8. 8. (d) Temporary Disqualification From Certain Public Welfare Assistance.-- Aliens provided the benefits of this section by virtue of their relation to a legalized alien described in subsection (b)(2)(A) or (b)(2)(B) shall be ineligible for public welfare assistance in the same manner and for the same period as the legalized alien is ineligible for such assistance under section 245A(h) or 210(f), respectively, of the Immigration and Nationality Act. (e) Exception for Certain Aliens.--An alien is not eligible for the benefits of this section if the Attorney General finds that-- (1) the alien has been convicted of a felony or 3 or more misdemeanors in the United States, or (2) the alien is described in section 243(h)(2) of the Immigration and Nationality Act. (f) Construction.--Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to obtain benefits under this section. (g) Effective Date.--This section shall take effect on October 1, 1991; except that the delay in effectiveness of this section shall not be construed as reflecting a Congressional belief that the existing family fairness program should be modified in any way before such date. Title 8: Aliens and Nationality PART 236—APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED Subpart B—Family Unity Program Subpart B—FAMILY UNITY PROGRAM §236.10 Description of program. §236.11 Definitions. §236.12 Eligibility. §236.13 Ineligible aliens. §236.14 Filing. §236.15 Voluntary departure and eligibility for employment. §236.16 Travel outside the United States. §236.17 Eligibility for Federal financial assistance programs. §236.18 Termination of Family Unity Program benefits.
  9. 9. §236.10 Description of program. The family unity program implements the provisions of section 301 of the Immigration Act of 1990, Public Law 101-649. This Act is referred to in this subpart as “IMMACT 90”. §236.11 Definitions. In this subpart, the term: Eligible immigrant means a qualified immigrant who is the spouse or unmarried child of a legalized alien. For purposes of §§236.10 to 236.18 only, Legalized alien means an alien who: (1) Is a temporary or permanent resident under section 210 or 245A of the Act; (2) Is a permanent resident under section 202 of the Immigration Reform and Control Act of 1986 (Cuban/Haitian Adjustment); or (3) Is a naturalized U.S. citizen who was a permanent resident under section 210 or 245A of the Act or section 202 of the Immigrant Reform and Control Act of 1986 (IRCA) (Cuban/Haitian Adjustment), and maintained such a status until his or her naturalization. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43679, July 14, 2000] §236.12 Eligibility. (a) General. An alien who is not a lawful permanent resident is eligible to apply for benefits under the Family Unity Program if he or she establishes: (1) That he or she entered the United States before May 5, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(A) of section 301 of IMMACT 90), and has been continuously residing in the United States since that date; and (2) That as of May 5, 1988, (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or (b)(2) (C) of section 301 of IMMACT 90) or as of December 1, 1988, (in the case of a relationship to a legalized alien described in subsection (b)(2) (A) of section 301 of IMMACT 90), he or she was the spouse or unmarried child of a legalized alien, and that he or she has been eligible continuously since that time for family-sponsored immigrant status under section 203(a) (1), (2), or (3) or as an immediate relative under section 201 (b)(2) of the Act based on the same relationship. (b) Legalization application pending as of May 5, 1988 or December 1, 1988. An alien whose legalization application was filed on or before May 5, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(A) of section 301 of IMMACT 90), but not approved until after that date will be treated as having been a legalized alien as of
  10. 10. May 5, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(B) or (b)(2)(C) of section 301 of IMMACT 90), or as of December 1, 1988 (in the case of a relationship to a legalized alien described in subsection (b)(2)(A) of section 301 of IMMACT 90), for purposes of the Family Unity Program. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43679, July 14, 2000] §236.13 Ineligible aliens. The following categories of aliens are ineligible for benefits under the Family Unity Program: (a) An alien who is deportable under any paragraph in section 237(a) of the Act, except paragraphs (1)(A), (1)(B), (1)(C), and (3)(A); provided that an alien who is deportable under section 237(a)(1)(A) of such Act is also ineligible for benefits under the Family Unity Program if deportability is based upon a ground of inadmissibility described in section 212(a)(2) or (3) of the Act; (b) An alien who has been convicted of a felony or three or more misdemeanors in the United States; (c) An alien described in section 241(b)(3)(B) of the Act; or (d) An alien who has committed an act of juvenile delinquency (as defined in 18 U.S.C. 5031) which if committed by an adult would be classified as: (1) A felony crime of violence that has an element the use or attempted use of physical force against another individual; or (2) A felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000] §236.14 Filing. (a) General. A Form I-817, Application for Family Unity Benefits, must be filed with the correct fee required in §103.7(b)(1) of this chapter and the required supporting documentation. A separate application with appropriate fee and documentation must be filed for each person claiming eligibility. (b) Decision. The service center director has sole jurisdiction to adjudicate an application for benefits under the Family Unity Program. The director will provide the applicant with specific reasons for any decision to deny an application. Denial of an application may not be appealed. An applicant who believes that the grounds for denial have been overcome may submit another application with the appropriate fee and documentation. (c) Referral of denied cases for consideration of issuance of notice to appear. If an application is denied, the case will be referred to the district director with jurisdiction over the alien's place of residence for consideration of whether to issue a notice to appear. After an initial denial, an applicant's case will not be referred for issuance of a notice to appear until 90 days from the date of the initial denial, to allow the alien the opportunity to file a new Form I-817 application in order to attempt to overcome the basis of the
  11. 11. denial. However, if the applicant is found not to be eligible for benefits under §236.13(b), the Service reserves the right to issue a notice to appear at any time after the initial denial. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 66 FR 29672, June 1, 2001; 74 FR 26939, June 5, 2009] §236.15 Voluntary departure and eligibility for employment. (a) Authority. Voluntary departure under this section implements the provisions of section 301 of IMMACT 90, and authority to grant voluntary departure under the family unity program derives solely from that section. Voluntary departure under the family unity program shall be governed solely by this section, notwithstanding the provisions of section 240B of the Act and 8 CFR part 240. (b) Children of legalized aliens. Children of legalized aliens residing in the United States, who were born during an authorized absence from the United States of mothers who are currently residing in the United States under voluntary departure pursuant to the Family Unity Program, may be granted voluntary departure under section 301 of IMMACT 90 for a period of 2 years. (c) Duration of voluntary departure. An alien whose application for benefits under the Family Unity Program is approved will receive voluntary departure for 2 years, commencing with the date of approval of the application. Voluntary departure under this section shall be considered effective from the date on which the application was properly filed. (d) Employment authorization. An alien granted benefits under the Family Unity Program is authorized to be employed in the United States and will receive an employment authorization document. The validity period of the employment authorization document will coincide with the period of voluntary departure. (e) Extension of voluntary departure. An application for an extension of voluntary departure under the Family Unity Program must be filed by the alien on Form I-817 along with the correct fee required in §103.7(b)(1) of this chapter and the required supporting documentation. The submission of a copy of the previous approval notice will assist in shortening the processing time. An extension may be granted if the alien continues to be eligible for benefits under the Family Unity Program. However, an extension may not be approved if the legalized alien is a lawful permanent resident, or a naturalized U.S. citizen who was a lawful permanent resident under section 210 or 245A of the Act or section 202 of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 66-903, and maintained such status until his or her naturalization, and a petition for family-sponsored immigrant status has not been filed on behalf of the applicant. In such case, the Service will notify the alien of the reason for the denial and afford him or her the opportunity to file another Form I-817 once the petition, Form I-130, has been filed on his or her behalf. No charging document will be issued for a period of 90 days from the date of the denial. (f) Supporting documentation for extension application. Supporting documentation need not include documentation provided with the previous application(s). The extension application shoud only include changes to previous applications and evidence of continuing eligibility since the date of prior approval. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000] §236.16 Travel outside the United States.
  12. 12. An alien granted Family Unity Program benefits who intends to travel outside the United States temporarily must apply for advance authorization in accordance with 8 CFR 223.2(a). The authority to grant an application for advance authorization for an alien granted Family Unity Program benefits rests solely with USCIS. An alien who is granted advance authorization and returns to the United States in accordance with such authorization, and who is found not to be inadmissible under section 212(a)(2) or (3) of the Act, shall be inspected and admitted in the same immigration status as the alien had at the time of departure, and shall be provided the remainder of the voluntary departure period previously granted under the Family Unity Program. [62 FR 10360, Mar. 6, 1997, as amended at 76 FR 53790, Aug. 29, 2011] §236.17 Eligibility for Federal financial assistance programs. An alien granted Family Unity Program benefits based on a relationship to a legalized alien as defined in §236.11 is ineligible for public welfare assistance in the same manner and for the same period as the legalized alien who is ineligible for such assistance under section 245A(h) or 210(f) of the Act, respectively. §236.18 Termination of Family Unity Program benefits. (a) Grounds for termination. The Service may terminate benefits under the Family Unity Program whenever the necessity for the termination comes to the attention of the Service. Such grounds will exist in situations including, but not limited to, those in which: (1) A determination is made that Family Unity Program benefits were acquired as the result of fraud or willful misrepresentation of a material fact; (2) The beneficiary commits an act or acts which render him or her inadmissible as an immigrant ineligible for benefits under the Family Unity Program; (3) The legalized alien upon whose status benefits under the Family Unity Program were based loses his or her legalized status; (4) The beneficiary is the subject of a final order of exclusion, deportation, or removal issued subsequent to the grant of Family Unity benefits unless such final order is based on entry without inspection; violation of status; or failure to comply with section 265 of the Act; or inadmissibility at the time of entry other than inadmissibility pursuant to section 212(a)(2) or 212(a)(3) of the Act, regardless of whether the facts giving rise to such ground occurred before or after the benefits were granted; or (5) A qualifying relationship to a legalized alien no longer exists. (b) Notice procedure. Notice of intent to terminate and of the grounds thereof shall be served pursuant to the provisions of 8 CFR 103.8(a)(2). The alien shall be given 30 days to respond to the notice and may submit to the Service additional evidence in rebuttal. Any final decision of termination shall also be served pursuant to the provisions of 8 CFR 103.8(a)(2). Nothing in this section shall preclude the Service from commencing exclusion or deportation proceedings prior to termination of Family Unity Program benefits. (c) Effect of termination. Termination of benefits under the Family Unity Program, other than as a result of a final order of removal, shall render the alien amenable to removal proceedings under section 240 of the Act. If benefits are terminated, the period of voluntary departure under this section is also terminated.
  13. 13. [62 FR 10360, Mar. 6, 1997, as amended at 65 FR 43680, July 14, 2000; 76 FR 53791, Aug. 29, 2011]

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