     Case: 11-60258     Document: 00511707133         Page: 1     Date Filed: 12/27/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 27, 2011
                                     No. 11-60258
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

FRANCISCO JOSE ROSALES FIGUEROA,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A078 010 292


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Francisco Jose Rosales-Figueroa, a native and citizen of Guatemala,
petitions this court to review the decision of the Board of Immigration Appeals
(BIA) affirming the immigration judge’s (IJ) order of removal and determination
that Rosales-Figueroa was ineligible for cancellation of removal under 8 U.S.C.
§ 1229b(a) because he failed to demonstrate that he resided in the United States
continuously for seven years after admission under any status. We generally
lack jurisdiction to review Rosales-Figueroa’s final order of removal. 8 U.S.C.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-60258

§ 1227(a)(2)(B)(I); see Balogun v. Ashcroft, 270 F.3d 274, 277-78 (5th Cir. 2001).
However, because the determination whether Rosales-Figueroa is ineligible for
cancellation of removal because he failed to satisfy the residency requirement is
a question of law, we have jurisdiction to review his petition. See 8 U.S.C.
§ 1252(a)(2)(C). The BIA’s legal determinations are reviewed de novo, and its
factual findings are reviewed for substantial evidence. See Girma v. INS, 283
F.3d 664, 666 (5th Cir. 2002).
      An alien who has been granted legal permanent residence may seek the
relief of cancellation of removal if he has been a lawful permanent resident for
at least five years, has resided in the United States continuously for seven years
after having been admitted under any status, and has not been convicted of an
aggravated felony. § 1229b(a). Here, the only issue is at what point Rosales-
Figueroa resided in the United States for a continuous period of seven years
after being admitted in any status. Rosales-Figueroa disputes that he was not
admitted until his status was adjusted in 2003 to legal permanent resident, and
asserts that he instead was conferred admission status in 2002, when he was
granted employment authorization pending the approval of adjustment of status.
He acknowledges that his conviction in 2009 for possession of methamphetamine
ended his continuous residence.
      Although Rosales-Figueroa argues that he was admitted in any status
when he was granted employment authorization, he has proffered no evidence
showing that he received such authorization or indicating the date on which that
authorization was granted. Nevertheless, even if Rosales-Figueroa received
employment authorization in 2002, he has not shown that such authorization
enables him to satisfy the residency requirement. He has provided no statutory,
regulatory, or precedential support for his argument that a grant of employment
authorization should be treated as an admission and has set forth no basis upon
which we should conclude that “admission in any status” includes employment
authorization.

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      To the contrary, our case law suggests that employment authorization
likely does not confer admission status. We have narrowly construed “admitted
in any status” and generally have not expanded the definition beyond events
that directly confer or alter an alien’s immigration status. See, e.g., Deus v.
Holder, 591 F.3d 807, 810-11 (5th Cir. 2009) (rejecting that, for purposes of the
residency requirement, a parent’s years of lawful permanent residence may be
imputed to a minor child). Moreover, we have held in analogous contexts that
the receipt of employment authorization does not confer legal immigration
status. See United States v. Lucio, 428 F.3d 519, 522-26 (5th Cir. 2005) (holding
that alien who received employment authorization and was permitted to remain
in the country during pendency of his application to adjust his immigration
status could be charged with being in the country illegally and unlawfully for
purposes of 18 U.S.C. § 922(g)(5)(A)); United States v. Flores, 404 F.3d 320, 326-
27 (5th Cir. 2005) (concluding that alien who applied for Temporary Protective
Status under 8 U.S.C. § 1254(a) could be deemed to be illegally or unlawfully in
the United States even though he could not be deported and had received
employment authorization); see also Bokhari v. Holder, 622 F.3d 357, 359-61 (5th
Cir. 2010) (concluding that employment authorization provided pursuant to 8
C.F.R. § 274a.12(b)(2) does not confer lawful immigration status).
      The applicable regulations further support that a grant of employment
authorization does not confer admission status. Rosales-Figueroa appears to
allege that he received employment authorization pending his application for
adjustment of status application pursuant to 8 C.F.R. § 274a.12(c)(9). Section
274(a).12 lists the classes of aliens who are authorized to accept employment; the
principal classes of aliens are (1) aliens authorized employment incident to
status; (2) aliens authorized for employment with a specific employer incident
to status; and (3) aliens who must apply for authorization. Unlike the other
categories of aliens, aliens who must apply for authorization are not granted
authorization without restriction based upon their status, i.e., aliens, like

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Rosales-Figueroa, who must apply for authorization are not admitted or granted
any status, and their authorization is not incidental to that status.        See
§ 274a.12(a)(1)-(20), (c). Instead, the grant of employment authorization to
aliens like Rosales-Figueroa is discretionary and may be terminated or revoked
at any time under the criteria set forth in 8 C.F.R. § 274a.14. § 274a.14(a)-(b).
Accordingly, the relevant regulations do not provide that aliens such as Rosales-
Figueroa receive employment authorization because they have been admitted or
granted status.
      We additionally note that the only circuit court to consider the instant
issue concluded that the grant of employment authorization does not constitute
“admission in any status.” See Guevara v. Holder, 649 F.3d 1086, 1090-95 (9th
Cir. 2011). Although not precedential, Guevara represents persuasive authority.
See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010). Thus, Rosales-
Figueroa has failed to establish that the BIA erred in determining that he was
subject to removal and ineligible for cancellation of removal.
      Rosales-Figueroa further argues that he should have been granted relief
because removal would cause his father, a legal permanent resident, to suffer an
exceptional and extremely unusual hardship. He also asserts that he wrongly
was not granted voluntary departure. Rosales-Figueroa failed to exhaust these
issues before the BIA, and we therefore lack jurisdiction to review them. See
Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
      Rosales-Figueroa’s petition for review is DENIED.




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