Galindo v. Holder

The seven-year continuous presence requirement under 8 U.S.C. § 1229b does not require continuous status of any particular kind, and an advanced parole trip outside the country does not change an individual’s residence or affect continuous presence in the United States.

Rosa Delicia Galindo de Rodriguez (“Galindo”) petitioned for the review of two Board of Immigration Appeals (“BIA”) final orders, one finding her ineligible for cancellation of removal, and the other denying her motion to reopen. In 1990, Galindo entered California lawfully from Mexico with a boarder-crossing card, then moved to Fresno and got married. Her husband became a naturalized citizen, and Galindo applied for adjustment through her husband’s citizenship. In 1996, while Galindo was in the process of adjustment, she was granted advanced parole to leave the country to visit her ailing mother. In 2005, Galindo was detained for alien smuggling. The BIA determined that Galindo’s advanced parole departure in 1996 broke the seven-year continuous residence in the United States after being admitted pursuant to the Immigration and Nationality Act (“INA”) § 240A(d)(1), 8 U.S.C. § 1229b(d)(1). On appeal, the Ninth Circuit held that: (1) 8 U.S.C. § 1229b(a)(2) does not require continuity of any status for the seven-year continuous residence in the United States, and (2) residence means “principal, actual dwelling place” or “the place of general abode,” and a brief visit to a family member does not mean that a person is changing his or her residence. Therefore, Galindo’s advanced parole trip to Mexico did not affect her physical continuous presence in the United States. The panel also held that Galindo could not retract her concessions of removability made before the Immigration Judge because such concessions are binding. Petition for review GRANTED, order VACATED, and REMANDED; Petition for review DENIED.