Lezama-Garcia v. Holder

An unintentional departure does not constitute abandonment of an alien's NACARA § 202 application to adjust status and that alien cannot be removed until that application is decided.

Lezama-Garcia illegally entered the U.S. in 1993 and became subject to removal as his prior asylum application was denied in 1997. In 2000, Lezama applied for relief under § 202 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), "a provision excusing both his prior entry without inspection and the pending 1997 order of removal - to adjust his status to that of an alien lawfully admitted for permanent residence." In 2004, Lezama was driving a company truck to San Diego, as he approached the Mexico border, he was unable to exit the freeway because of traffic, and was motioned by a police officer to continue into Mexico. Lezama was unable to re-enter the U.S. because he "lacked a valid entry document" and four days later tried to enter with someone else's identification was detained. Lezama was charged with "being an 'arriving alien' subject to removal under 8 U.S.C. § 1182(a)(7)(i)(I)" and he subsequently filed a motion to terminate removal proceedings arguing that he was not an "arriving alien." The Immigration Judge denied the motion to terminate and "concluded that Lezama had abandoned his pending NACARA application 'as of the moment of his departure.'" The BIA affirmed and Lezama appealed arguing that his departure was unintentional, involuntary, or inadvertent. The Ninth Circuit held that Lezama did not abandon his NACARA application and ordering removal conflicted with NACARA reasoning that Lezama's departure to Mexico was not "desired" and under NACARA § 202(c)(2), "even if his departure rendered him an 'arriving alien,' he remains eligible for adjustment of status." Therefore Lezama's application will remain pending and the case will be remanded "to allow the government to rule on the pending application to adjust status under NACARA § 202." Petition GRANTED.