Medina-Nunez v. Lynch

An alien’s acceptance into the Family Unity Program, without inspection, does not qualify under 8 U.S.C. § 1229b(a) for the seven-year residency requirement to file an application for cancellation of removal.

In 1985, Jose Juan Medina-Nunez was a Mexican citizen who entered into the United States without inspection. Upon entry, he was accepted into the Family Unity Program (“FUP”), which allowed for him to receive protection from removal, work authorization, voluntary departure, and the ability to travel internationally. After being convicted of several crimes, the government issued a notice to appear. Medina-Nunez appealed, under 8 U.S.C. § 1229b(a), the decision of the Board of Immigration Appeals (“BIA”) to deny Medina-Nunez’s application for cancelation of removal. On appeal, the Ninth Circuit decided whether Medina-Nunez’s application was rightfully denied. The panel first analyzed whether FUP acceptance constitutes the seven-year residency requirement of 8 U.S.C. § 1229b(a) when filing an application for cancelation of removal. While the BIA did not have anything on record deciding this issue in 2005, no deference could be given to BIA’s decision on the matter. However, in 2010, the BIA published a decision on the matter stating that the term “admitted” means “the lawful entry of the alien into the United States after inspection and authorization by an immigration office.” The panel held that because Medina-Nunez was admitted to the United States under a grant of FUP, where an alien does not need to be inspected, and because Medina-Nunez was not inspected, the BIA correctly denied his application for cancellation of removal. Petition DENIED.