Miriam Eliu Yepez-Razo v. Alberto R. Gonzales, Attorney General

Miriam Eliu Yepez-Razo (“Yepez-Razo”) petitions for review of a decision of the Board of Immigration Appeals (“BIA”) that found her ineligible for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”), Pub.L. No. 82-414, 66 Stat. 163 (June 27, 1952), 8 U.S.C. § 1182 (h). We have jurisdiction under 8 U.S.C. § 1252 . We conclude that the BIA erred when it found that Yepez-Razo was not “lawfully residing” in the United States for purposes of section 212(h) from January 15, 1995 to June 13,1995.

I.

Yepez-Razo, a native and citizen of Mexico, was born on December 15, 1976 and entered the United States on November 4, 1987. Yepez-Razo’s father, who obtained lawful permanent resident status in 1988 as a Special Agricultural Worker under 8 U.S.C. § 1160 , filed a Petition for Alien Relative on her behalf on November 22, 1991. The Immigration and Naturalization Service (“INS”) approved the petition on February 10, 1992. Yepez-Razo filed a Form 1-817, Application for Family Unity Voluntary Departure, at some time in 1992; the application is not in the record and the INS was unable to provide it in response to Yepez-Razo’s Freedom of Information Act…