Barrera-Quintero v. Holder, Jr.
2012 U.S. App. LEXIS 23494
| 10th Cir. | 2012Background
- Barrera–Quintero, a Mexican citizen, entered the U.S. illegally in May 1990 and largely stayed here through 2007, with a brief 2004 departure.
- He pled nolo contendere in 1993 to willful infliction of corporal injury on a spouse in California.
- In 2004, Barrera was found with a fake Social Security card in Utah, chose voluntary return to Mexico under Form I-826, and reentered around August 2004.
- He was served a Notice to Appear in 2007 and sought cancellation of removal under 8 U.S.C. § 1229b, alleging ten years’ continuous presence.
- The Immigration Judge and BIA ruled Barrera ineligible for cancellation, relying on Romalez–Alcaide and Avilez–Nava to conclude the 2004 departure broke continuous presence; the court reviews jurisdiction, statutory interpretation, and discretionary aspects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Romalez–Alcaide is entitled to Chevron deference. | Barrera argues the BIA’s continuous-presence rule is not properly Chevron-deferred. | Government argues Romalez–Alcaide is a reasonable, deference-worthy construction. | Yes; BIA interpretation is reasonable and entitled to Chevron deference. |
| Whether Barrera’s 2004 departure broke continuous presence. | Barrera contends the 2004 departure wasn’t voluntary due to improper rights notice. | Romalez–Alcaide/Avilez–Nava support that such departure under threat breaks presence. | BIA’s interpretation reasonable; 2004 departure broke continuous presence. |
| Whether the voluntariness determination is reviewable. | Voluntariness was mischaracterized as discretionary; must be reviewed. | Voluntariness is discretionary and not reviewable under §1252(a)(2)(B)(i). | Discretionary aspects not reviewable; no jurisdiction to review voluntariness. |
| Whether telephonic cross-examination violated due process. | Barrera asserts lack of in-person cross-examination undermined due process. | Telephonic testimony permitted by regulation; no prejudice shown. | Telephonic cross-examination did not violate due process under the circumstances. |
Key Cases Cited
- Romalez–Alcaide v. INS, 23 I. & N. Dec. 423 (BIA 2002) (continual presence ends when departure occurs under threat of removal)
- Avilez–Nava v. INS, 23 I. & N. Dec. 799 (BIA 2005) (further development of continuous-presence rule)
- Sabido Valdivia v. Gonzales, 423 F.3d 1144 (10th Cir. 2005) (limits review to discretionary judgments; deference to agency)
- Arambula–Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) (jurisdiction to review constitutional claims and legal questions; deference framework)
- Tapia Garcia v. Holder, 237 F.3d 1216 (10th Cir. 2001) ( Chevron deference governs agency statutory interpretation in adjudications)
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (final order of removal under 1252(a) review; consult IJ’s reasoning)