Gabino Rodriguez-Labato v. Jefferson B. Sessions, III
868 F.3d 690
| 8th Cir. | 2017Background
- Petitioner Gabino Rodriguez‑Labato, a Mexican national, was served a Notice to Appear on August 13, 2009, and conceded removability; he applied for cancellation of removal under 8 U.S.C. § 1229b(b).
- DHS alleged Petitioner entered the U.S. April 1, 2001 and had previously voluntarily departed on multiple occasions; continuous presence for cancellation is measured back ten years from the NTA (i.e., since Aug. 13, 1999).
- DHS produced a Spanish Form I‑826 dated March 23, 2001, in which Petitioner selected an option admitting he was in the U.S. illegally and opting to return to Mexico instead of requesting a hearing; records show he was detained, fingerprinted, photographed, and returned to Mexico.
- At removal proceedings Petitioner testified he understood signing I‑826 related to voluntary departure but claimed officers did not explain the waiver of hearing or the legal consequences (civil penalties, ineligibility for relief, or effect on continuous presence).
- The IJ found Petitioner’s March 23, 2001 return was a voluntary departure “under threat of deportation” that broke continuous presence; the Board affirmed, and Petitioner petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioner’s March 23, 2001 return was a voluntary departure under threat of deportation that breaks continuous presence for § 1229b(b) eligibility | Petitioner: he did not fully understand warnings or legal consequences, so his return did not break continuous presence | Government: selection on Form I‑826 and documented processing show he voluntarily returned under threat of deportation | Held: Court affirms—Form I‑826 selection plus documented detention/processing demonstrate departure under threat of deportation that breaks continuous presence |
| Whether regulatory warnings in 8 C.F.R. § 240.25 apply when an alien waives proceedings and returns voluntarily pre‑proceedings | Petitioner: lack of warnings means he did not knowingly waive rights and thus did not depart under threat | Government: statutory/regulatory warning regime applies only to voluntary departure under § 1229a proceedings, not to pre‑proceedings returns | Held: Court rejects government’s narrow view—§ 240.25 warnings apply to grants under § 1229c(a) including pre‑proceedings voluntary departure |
| Whether failure to receive the § 240.25 warnings precludes finding of voluntary departure under threat of deportation | Petitioner: absence of required warnings invalidates finding that he left under threat | Government: warnings not required here; even without warnings, record shows threat understood | Held: Court holds failure to receive warnings does not preclude finding; the totality (I‑826 choice and documented process) sufficed to show departure under threat |
Key Cases Cited
- Reyes‑Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir.) (defines when voluntary departure breaks continuous presence)
- Palomino v. Ashcroft, 354 F.3d 942 (8th Cir.) (same principle on breaking continuous presence)
- Goswell‑Renner v. Holder, 762 F.3d 696 (8th Cir.) (standard of review for agency factfinding)
- Ortiz‑Cornejo v. Gonzales, 400 F.3d 610 (8th Cir.) (requires evidence of an expressed and understood threat of deportation)
- Morales‑Morales v. Ashcroft, 384 F.3d 418 (7th Cir.) (noting that § 240.25 warnings demonstrate a threat of deportation)