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Martinez-Alvarez v. Immigration & Naturalization Service

filed: August 14, 1995.

ROBERTO MARTINEZ-ALVAREZ, PETITIONER,
v.
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.



BIA NO. A92-038-893.{Judge}{Q}Judges{/Q}{/Judge}

Before: D.w. Nelson and Canby, Circuit Judges, and Tanner, District Judge.

Order

The memorandum Disposition in this case is hereby amended as follows:

The first two full sentences on page 3 are to be deleted and replaced by the following:

This argument fails because the requirement of "seven consecutive years" of "lawful unrelinquished domicile" cannot be construed to include time spent in this country in an entirely unlawful status. Raya-Ledesma v. INS, 42 F.3d 1263, 1265 (9th Cir. 1985), as amended, slip op. 5233 (9th Cir. May 11, 1995); Avila-Murrieta v. INS, 762 F.2d 733, 734 (9th Cir. 1985) . Even if Martinez-Alvarez's temporary residence status under the legalization program were to count toward the seven years, an issue we do not decide, Martinez-Alvarez would still be statutorily ineligible because he would not have accrued seven years. He acquired temporary residence status in 1988, only three years prior to the institution of deportation proceedings.

With this amendment, the members of the panel have voted unanimously to deny the petition for rehearing and to recommend rejection of the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active Judge has requested a vote on whether to rehear the matter en banc. (Fed.R. App. P. 35.)

The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.

IT IS SO ORDERED.

19950814

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