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Keywords

regulationparoleasylum
regulationparoleasylum

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Lezama-Garcia v. Holder

Facts

Lezama entered the United States without inspection from Nicaragua and remained continuously since at least April 1993. He was subject to a removal order due to a prior asylum application denial in 1997 but applied for relief under NACARA 202 in March 2000. While awaiting an interview for his application in 2004, he inadvertently drove into Mexico while trying to navigate traffic, was turned away upon attempting to return, and was subsequently charged as an 'arriving alien' subject to removal.

Lezama entered the United States without inspection from Nicaragua. He has remained in this country continuously since at least April 1993 (other than the March 2004 incident in question here where he drove into Mexico). He was subject to an order of removal, having had a prior asylum application denied in absentia in 1997. In March of 2000, however, he applied for relief under NACARA 202.

Issue

Did Lezama abandon his application for adjustment of status under NACARA 202 by inadvertently departing the United States?

Did Lezama abandon his application for adjustment of status under NACARA 202 by inadvertently departing the United States?

Rule

Under 8 C.F.R. 245.13(k)(1), an application for adjustment of status is deemed abandoned if the applicant departs the United States without an approved advance parole request.

Under 8 C.F.R. 245.13(k)(1), an application for adjustment of status is deemed abandoned if the applicant departs the United States without an approved advance parole request.

Analysis

The court found that the IJ's application of the regulation was erroneous because it did not consider the circumstances of Lezama's departure, which was unintentional. The court emphasized that the regulation does not specify that an inadvertent departure results in abandonment of the application, and thus, Lezama's NACARA application remained pending despite his brief departure.

The court found that the IJ's application of the regulation was erroneous because it did not consider the circumstances of Lezama's departure, which was unintentional. The court emphasized that the regulation does not specify that an inadvertent departure results in abandonment of the application, and thus, Lezama's NACARA application remained pending despite his brief departure.

Conclusion

The Ninth Circuit granted Lezama's petition for review, concluding that the IJ's determination of abandonment was contrary to the regulation, and remanded the case for further proceedings.

We conclude that deeming Lezama's NACARA application abandoned was contrary to the regulation, and ordering removal conflicted with NACARA itself. We therefore grant the petition and remand for further proceedings.

Who won?

Carlos Antonio Lezama-Garcia prevailed in the case because the Ninth Circuit found that the IJ's ruling was contrary to the applicable regulation regarding abandonment of his NACARA application.

Carlos Antonio Lezama-Garcia prevailed in the case because the Ninth Circuit found that the IJ's ruling was contrary to the applicable regulation regarding abandonment of his NACARA application.

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