Opinion
17-71729
10-17-2022
JOSE FREDY NUNEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 6, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A094-300-774
Before: LEE and H.A. THOMAS, Circuit Judges, and BENNETT, Senior District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Petitioner Jose Fredy Nunez ("Nunez") is a native and citizen of Honduras who entered the United States without inspection in about 1994, when he was around twelve years old. Nunez was placed in removal proceedings in 2012, and submitted an application for asylum, withholding of removal, and relief under the Convention Against Torture. He challenges his removability, and seeks review of a ruling of the Board of Immigration Appeals ("BIA") upholding a ruling of an Immigration Judge ("IJ") denying all requested relief. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.
According to his asylum application and supporting declaration, Nunez fled from his home in Honduras to the United States when his family was attacked by a family associated with a rival political party. Both Nunez and the Government acknowledge that Nunez entered the United States without inspection as a child and was ultimately granted Temporary Protected Status ("TPS") in 1999. After his 2012 conviction for driving under the influence, Nunez was served with a Notice to Appear, charging him with inadmissibility under INA § 212(a)(6)(A)(i) for being "present in the United States without being admitted or paroled." 8 U.S.C. § 1182(a)(6)(A)(i); see also id. § 1227(a)(1)(A) ("Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.").
Nunez contests his removability under INA § 212(a)(6)(A)(i), claiming that per this Court's decision in Ramirez v. Brown, he was constructively "admitted" to the United States when he received TPS in 1999. 852 F.3d 954, 958 (9th Cir. 2017). The Government claims that this argument is not exhausted, as Nunez did not raise it before the IJ or the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). However, this Court "do[es] not require an alien to exhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed." Alcaraz v. I.N.S., 384 F.3d 1150, 1158 (9th Cir. 2004). Nunez's brief to the BIA was due on January 6, 2017, the Government's response was due on January 27, 2017, and this Court issued its opinion in Ramirez v. Brown on March 31, 2017. Accordingly, the exhaustion requirement is excused, and this Court has jurisdiction over Nunez's removability argument.
However, Nunez's claim that "an alien granted TPS is considered 'admitted'" has been foreclosed by recent authority of the Supreme Court. In Sanchez v. Mayorkas, the Supreme Court abrogated Ramirez, holding that "[l]awful status and admission . . . are distinct concepts in immigration law," and reasoning that:
The TPS statute permits [an immigrant] to remain in the country; and it deems him in nonimmigrant status for purposes of applying to become [a lawful permanent resident]. But the statute does not constructively "admit" a TPS recipient-that is "consider[]" him as having entered the country "after inspection and authorization." And because a grant of TPS does not come with a ticket of admission, it does not eliminate the disqualifying effect of an unlawful entry.141 S.Ct. 1809, 1813-14 (2021) (citation omitted) (quoting 8 U.S.C. § 1254a(f)(4), § 1101(a)(13)(A)). Accordingly, an immigrant who entered the United States without inspection and was subsequently granted TPS is not constructively "admitted" to the United States. Id. at 1813. As Nunez entered without inspection in 1994, and received TPS in 1999, he was not lawfully admitted to the United States. See id. at 1813-14. At best, his TPS conferred lawful status, not a "ticket of admission." See id.
Nevertheless, the record and the briefs are devoid of details with respect to whether Nunez's Temporary Protected Status was ever lawfully terminated. In Nunez's brief to the BIA, he recounted that he "was granted TPS status and may have maintained that status until he was convicted of a DUI in 2012." Before this Court, Nunez states that his TPS was "apparently terminated when [he] was arrested for a criminal offense in 2012," and the Government notes that "at some point he may have acquired TPS." This is the extent of the discussion of Nunez's TPS on the record. Neither the IJ nor the BIA adjudicated Nunez's TPS, and the record does not include any documents elucidating this issue. Specifically, the record contains no facts indicating that Nunez's TPS was revoked, and no legal analysis as to whether his DUI conviction constitutes legally sufficient grounds for such a revocation.
Accordingly, we GRANT the petition and remand to the BIA to determine whether Nunez remains in Temporary Protected Status-and, if that status was revoked, whether such a revocation was lawful. As we grant the petition on the issue of removability alone, we do not reach the merits of Nunez's asylum, withholding, or CAT claims.
PETITION GRANTED.
The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation.