     Case: 14-60164       Document: 00512955400         Page: 1     Date Filed: 03/03/2015




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

                                                                                 FILED
                                     No. 14-60164                            March 3, 2015
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
OCIEL IVAN GOMEZ-SORIA,

                                                  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. A070 611 840


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Ociel Ivan Gomez-Soria petitions for review of the Board of Immigration
Appeals’ (BIA) decision denying his request for cancellation of removal, under
8 U.S.C. § 1229b(a) (requiring, inter alia, continuous residence in United
States for seven years after having been “admitted in any status”). Gomez
challenges the BIA’s determination that a grant of benefits under the Family




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-60164

Unit Program (FUP), 8 C.F.R. § 236.12, does not constitute an “admission in
any status” for the purposes of 8 U.S.C. § 1229b(a).
      The BIA’s legal determination that Gomez is ineligible for cancellation
of removal is reviewed de novo; to the extent its determination relies upon
interpretation of ambiguous provisions in the Immigration and Naturalization
Act, such interpretation is reviewed in accordance with Chevron, U.S.A. Inc. v.
Natural Resources Defense Council, 467 U.S. 837 (1984). Ruiz-Romero v. Reno,
205 F.3d 837, 838 (5th Cir. 2000); see also, e.g., Diaz v. Ashcroft, 108 F. App’x
972, 973 (5th Cir. 2004).
      In 1983, Gomez entered the United States without inspection.           His
application for voluntary departure and employment authorization under the
Family Fairness Program, later the FUP, was approved in 1991. He was
granted legal permanent residence in October 1995. After his guilty-plea
conviction for possession of a controlled substance in July 2002, he was charged
with removability under 8 U.S.C. § 1229, and, at his removal hearing, sought
cancellation of removability under 8 U.S.C. § 1229b(a). The immigration judge
deemed him ineligible for cancellation of removal because he failed to meet the
seven-years’ continuous-residence requirement. See 8 U.S.C. § 1229b(a)(2).
The BIA agreed.
      Aliens who have been granted legal permanent resident status may seek
cancellation of removal if they have “been an alien lawfully admitted for
permanent residence for not less than 5 years, ha[ve] resided in the United
States continuously for 7 years after having been admitted in any status, and
ha[ve] not been convicted of any aggravated felony”. 8 U.S.C. § 1229b(a)
(emphasis added).    According to Gomez, he met the requirement of being
continuously present seven years in the United States because he was
“admitted in any status” in 1991 when he was accepted into the FUP benefit



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                                 No. 14-60164

program. This claim has been rejected by both the BIA in a precedential
decision and by this court in a non-precedential (persuasive) opinion. E.g.,
Matter of Reza-Murillo, 25 I&N Dec. 296, 299–300 (BIA 2010); Diaz, 108 F.
App’x at 973–75. Moreover, insofar as Gomez asserts the BIA’s interpretation
of “admission” in both this case and in Matter of Reza-Murillo is arbitrary and
capricious, and assuming arguendo the term is ambiguous, no compelling
evidence shows the BIA’s interpretation is incorrect under Chevron deference.
See, e.g., Dhuka v. Holder, 716 F.3d 149, 157 (5th Cir. 2013).
      DENIED.




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