GARCIA-QUINTERO v. GONZALES
The Ninth Circuit Court of Appeals today released an opinion in GARCIA-QUINTERO v. GONZALES, No. 03-73930, an administrative appeal. The panel consisted of Michael Daly Hawkins, Susan P. Graber, and Richard A. Paez, Circuit Judges.
PAEZ, Circuit Judge:
Petitioner Pedro Garcia-Quintero petitions for review of the Board of Immigration Appeals’s (”BIA” or “Board”) order that found him removable for alien smuggling, and ineligible for cancellation of removal due to his failure to accrue seven years of continuous residence in the United States after being “admitted in any status.” At the removal hearing, GarciaQuintero’s counsel attempted to assert the Fifth Amendment’s right against self-incrimination on behalf of Garcia-Quintero. The immigration judge (”IJ”), however, required GarciaQuintero to assert his Fifth Amendment right himself, but allowed his attorney to advise him about when to exercise this right. After invoking the Fifth Amendment several times, Garcia-Quintero admitted that he tried to help his goddaughter unlawfully enter the United States. On the basis of this testimony, the IJ ordered Garcia-Quintero removed for having engaged in alien smuggling. Garcia-Quintero appealed the IJ’s ruling to the BIA. In addition to challenging the IJ’s procedure for invoking the Fifth Amendment, Garcia-Quintero moved to remand his case so the IJ could consider his application for cancellation of removal. In an unpublished order, the BIA rejected his appeal, and also denied his motion because it determined that he . . .
GRABER, Circuit Judge, concurring in part and dissenting in part:
Although I concur in the majority’s analysis of the Fifth Amendment issue and agree that the deference we owe to the Board of Immigration Appeals (”BIA”) is defined by Skidmore v. Swift & Co., 323 U.S. 134 (1944), rather than by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), I respectfully dissent from the majority’s conclusion that the BIA misinterpreted 8 U.S.C. § 1229b(a)(2). Title 8 U.S.C. § 1229b(a)(2) provides that cancellation of removal is available, at the Attorney General’s discretion, for a legal permanent resident alien (”LPR”) who is inadmissible or deportable if (among other criteria) he “has resided in the United States continuously for 7 years after having been admitted in any status.” (Emphasis added.) There is no dispute that Petitioner’s period of continuous residence ended on June 8, 2001, when he attempted to smuggle an alien into the United States. 8 U.S.C. § 1229b(d)(1). There also is no dis. . .