                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                   September 20, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-60612


                    BLANCA ESTHELA DIAZ De DIAZ,

                                                          Petitioner,

                               versus

                JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                                          Respondent.


               Petition for Review of an Order of the
                     Board of Immigration Appeals
                             (A44-098-304)


Before KING, CHIEF JUDGE, and BARKSDALE and PICKERING, Circuit

Judges.

PER CURIAM:*

     By granting a period for voluntary departure, the Family Unity

Program, Pub. L. No. 101-649, § 301, 104 Stat. 5029 (1991) (FUP),

permits qualified aliens to remain in the United States and work

while awaiting adjustment to lawful permanent resident status.         At

issue is whether voluntary departure status and other benefits

under the FUP constitute an “admission in any status”, making

petitioner eligible for cancellation of removal under 8 U.S.C. §

1229b(a)(2) (requiring, for cancellation of removal eligibility,


     *
       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this opinion should not be published and is not precedent except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.
continuous residence in United States for seven years after having

been admitted in any status).     FUP’s voluntary departure is not an

“admission”; the petition for review is DENIED.

                                   I.

     Blanca Esthela Diaz de Diaz, a citizen of Mexico, entered the

United States    illegally   in   1986.      She    was   granted    voluntary

departure under the Family Fairness Program in 1990, after her

husband became a legal United States resident; in 1991, that

program became the FUP.      Diaz’ voluntary departure under FUP was

extended in 1991.      On 16 June 1993, Diaz was granted permanent

residence status.

     On 17 March 2000, the INS issued Diaz a notice to appear,

advising   she   was    subject   to      removal    under    8     U.S.C.   §§

1182(a)(6)(A)(i) and (E)(i) as an alien present in the United

States without being admitted or paroled and as an alien who

knowingly aided another alien to attempt illegal entry into the

United States.   The INS later alternatively charged Diaz under 8

U.S.C. § 1227(a)(1)(E) as an alien who, within five years of entry,

knowingly aided another alien to attempt such illegal entry.

     Diaz filed an application for cancellation of removal under 8

U.S.C. § 1229b(a).     During removal hearings before the immigration

judge (IJ), Diaz admitted to helping smuggle her sister into the

United States from Mexico and conceded deportability under §




                                    2
1227(a)(1)(E).       The   Government       withdrew     its   charge    under    §

1182(a)(6)(A)(i).

     After    the    IJ    determined       Diaz   was      removable   under     §

1227(a)(1)(E)    (alien     aiding   smuggling         of    another    alien    is

removable),   Diaz    requested   cancellation         of    removal.     The    IJ

concluded Diaz had not accumulated seven years of continuous

residence after being admitted in any status, as required under §

1227(a)(2) for such cancellation, because:                  Diaz’ FUP voluntary

departure status was not an “admission”; therefore, the seven-year

period did not begin to run until she became a permanent resident

on 16 June 1993; and the period of continuous residence ended on

the date of her notice to appear, 17 March 2000, approximately

three months short of the requisite seven years, pursuant to 8

U.S.C. § 1229b(d)(1) (period of continuous physical presence ends

when alien served with notice to appear); see also Gonzalez-Torres

v. INS, 213 F.3d 899, 902-03 (5th Cir. 2000).

     Diaz appealed the IJ’s order to the Board of Immigration

Appeals (BIA).      On the same grounds as relied upon by the IJ, it

dismissed her appeal and ordered her removal.

                                     II.

     Generally, we review only the decision of the BIA, not the IJ.

See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).

Although the BIA’s conclusions of law are reviewed de novo, its

interpretations of ambiguous provisions of the Immigration and


                                        3
Naturalization Act (INA), 8 U.S.C. § 1101 et seq., are owed the

usual Chevron deference.     Ruiz-Romero v. Reno, 205 F.3d 837, 838

(5th Cir. 2000) (citing Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)). The BIA’s findings of

fact are “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary”.   8 U.S.C. § 1252(b)(4)(B).

     Diaz contends she is eligible for cancellation of removal

because she is a lawful permanent resident meeting the requirements

under § 1229b(a):

          (1) has been an alien lawfully admitted for
          permanent residence for not less than 5 years,

          (2) has    resided  in   the United  States
          continuously for 7 years after having been
          admitted in any status, and

          (3) has not been convicted of any aggravated
          felony.

8 U.S.C. § 1229b(a)(1)-(3) (emphasis added).   Having been admitted

on 16 June 1993, Diaz has been lawfully admitted for permanent

residence status for more than five years.     And, notwithstanding

her charge for smuggling her sister into the United States, she has

not been convicted of any aggravated felony.    Therefore, at issue

is whether she has “resided in the United States continuously for

7 years after having been admitted in any status”.         Id.   Diaz

contends she meets this requirement, claiming that, for purposes of

§ 1229b(a)(2), the grant of FUP benefits in 1990 constituted an

“admission in any status”.


                                  4
     The FUP acknowledges spouses and children of legalized aliens

as present in the United States and permits them being granted

“voluntary departure” status.             Immigration Act of 1990 (IMMACT),

Pub. L. No. 101-649, § 301(a)(1), 104 Stat. 5029; 8 C.F.R. §

236.15.   If granted FUP voluntary departure, an alien may receive

work authorization, § 301(a)(2); 8 C.F.R. § 236.15(d), and may

apply for advanced authorization to travel, 8 C.F.R. § 236.16.

This travel authorization includes a provision that, upon return to

the United States, the alien “shall be inspected and admitted in

the same immigration status as the alien had at the time of

departure, and shall be provided the remainder of the voluntary

departure    period        previously    granted    under     the   Family     Unity

Program”.    Id. (emphasis added).

     According to Diaz, it is axiomatic that, if a returning alien

will be admitted in the same status as at departure, then that

alien has already been “admitted in any status”; further, because

the regulations provide that aliens are authorized to travel

“incident    to    status”,     one     such   status   can   be    FUP   voluntary

departure.    8 C.F.R. § 274a.12(a)(13) & (14).               Diaz contends her

period of FUP voluntary departure should therefore qualify as an

“admission in any status” and fulfill the balance of the seven

years residence in the United States required by § 1229b(a)(2).

     The Government responds that, in the immigration context,

“admission”       is   a    term   of    art    with    specific     meaning    and


                                          5
requirements.    “The terms ‘admission’ and ‘admitted’ mean, with

respect to an alien, the lawful entry of the alien into the United

States   after   inspection   and   authorization   by   an   immigration

officer.”    8 U.S.C. § 1101(a)(13).     According to the Government,

because the FUP does not provide for an “admission” of an alien

into the United States, the BIA was correct to conclude the time

Diaz spent in the United States under FUP voluntary departure did

not count toward that required for cancellation of removal.

     The FUP permits qualified aliens to remain in the United

States and work while awaiting adjustment to lawful permanent

resident status; an alien granted FUP benefits is effectively

granted an extended voluntary departure. See Hernandez v. Reno, 91

F.3d 776, 778 (5th Cir. 1996); 8 C.F.R. 236.15(a) (“[v]oluntary

departure under this section implements the provisions of section

301 of IMMACT ... and authority to grant voluntary departure under

the family unity program derives solely from that section”).           On

the other hand, as reflected above, a voluntary departure is not an

admission under the definition in 8 U.S.C. § 1101(a)(13).

     Diaz claims that, after approval of FUP benefits, an alien has

effectively been inspected and admitted, if only on a temporary

basis.   She provides, however, no evidence or legal authority to

support this claim.    Moreover, voluntary departure (or temporary

stay of removal) is not equivalent to admission for temporary

residence.



                                    6
     The BIA stated:   “We do not consider a period during which an

alien is to ‘depart’, even if that period is protracted, to be an

‘admission’ to the United States”.     We agree.   Diaz, as an alien

given voluntary departure, could not simultaneously be admitted in

any status; in the immigration context, voluntary departure and

admission are mutually exclusive.     This is confirmed by the FUP:

          (f) CONSTRUCTION. — Nothing in this section
          shall be construed as authorizing an alien to
          apply for admission to, or to be admitted to,
          the United States in order to obtain benefits
          under this section.

Section 301(f) of IMMACT, Pub. L. 101-649, 104 Stat. 4978.

     Diaz contends this section is confusing at best, but that it

most likely prohibits either permitting an alien to enter the

country merely to obtain FUP benefits or granting admission to an

alien merely so she may obtain FUP benefits.    Diaz’ first possible

interpretation is redundant, see § 301(a) (defining eligible alien

as immigrant who resided in United States before 5 May 1988); and

it continues to ignore that “admission” in the immigration context

is a term of art.   Her second interpretation also fails, given that

it is FUP voluntary departure status, not admission, that permits

receipt of FUP benefits.

     Although Diaz was permitted to work under FUP, she admits she

remained technically deportable as an alien who entered the United

States illegally. Notwithstanding FUP’s barring her removal during

the voluntary departure period beginning in 1990, it did not change


                                  7
her illegal presence in the United States.    That did not change

until she adjusted her status through admission on 16 June 1993 as

a lawful permanent resident.

     Given our deferential standard of review, we hold the BIA

decided correctly that a grant of FUP benefits, including voluntary

departure, does not constitute an “admission in any status”.

Therefore, Diaz fails to demonstrate she resided in the United

States for seven continuous years following admission in any

status, as required for cancellation of removal eligibility.   See

§ 1229b(a)(2).

                               III.

     For the foregoing reasons, the petition is

                                                        DENIED.




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