Hernandez v. Garland

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 09-14-2022
  • Case #: 21-70493
  • Judge(s)/Court Below: Forrest, J. for the Court; Kelly, J.; Smith, J.
  • Full Text Opinion

Temporary protected status (TPS) does not constitute being “admitted in any status” under the cancellation statute of 8 U.S.C. § 1229b(a). Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021).

Petitioner was given temporary protected status after entering the U.S. illegally. Petitioner became a lawful permanent resident after seven years but after multiple convictions of domestic violence, the government sought removal. Petitioner sought cancellation of removal under 8 U.S.C. § 1229b(a) and asylum. The IJ denied Petitioner’s applications for relief and the BIA affirmed its decision that Petitioner was not eligible for cancellation of removal as Petitioner had not shown seven years of continuous residence, as well as Petitioner’s domestic violence conviction constituted a serious crime that barred him from seeking asylum. On appeal, the Ninth Circuit Court of Appeals held that Petitioner’s temporary protected status was not an admission that satisfied the seven-year requirement of the LPR cancellation statute. The Ninth Circuit reasoned based on the U.S. Supreme Court decision in Sanchez v. Mayorkas and the LPR cancellation statutory language, TPS is not an admission. Further, the Ninth Circuit held the BIA did not err determining Petitioner’s domestic violence conviction constituted a serious crime barring asylum as it reasoned that the BIA only limited their analysis to Petitioner’s third conviction pertaining to the seriousness of the crime in light of Petitioner’s previous convictions. PETITION FOR REVIEW DENIED. 

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