490 F. App'x 712
6th Cir.2012Background
- Gonzalez, a Guatemalan national, entered the United States in 2000 as a non-immigrant and later sought asylum in Canada, but Canada returned him to the U.S. in 2004 under a Reciprocal Agreement.
- DHS served a Notice to Appear in November 2004 alleging removability as an admitted alien who overstayed admission.
- Matter of R-D- (2007) reclassified Gonzalez as an arriving alien, affecting eligibility for voluntary departure.
- DHS issued an Additional Charges of Inadmissibility/Deportability (I-261) in April 2008, which did not explicitly terminate the 2004 NTA.
- Gonzalez conceded removability and sought post-conclusion voluntary departure; the IJ held him statutorily ineligible for failure to meet the one-year presence requirement, and the BIA affirmed.
- Gonzalez challenges the BIA/ IJ rulings on (1) the effect of stipulation, (2) whether the “one-year” clock could be reset, and (3) whether the I-261 can serve as a notice to appear for presence calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a stipulation can override statutory eligibility for voluntary departure. | Gonzalez argues the stipulation showed eligibility. | DHS contends stipulations cannot alter legal requirements. | No; stipulations cannot override statutory requirements. |
| Whether the one-year presence clock for voluntary departure can be reset by post-R-D- changes. | Gonzalez seeks reset to 2007 or 2008. | Presence period remains tied to the original NTA date. | Clock cannot be reset by post-R-D- changes. |
| Whether the 2008 I-261 can serve as a new notice to appear for presence calculation. | I-261 effectively substituted the NTA and nullified 2004 NTA. | I-261 does not qualify as a notice to appear and thus cannot reset the presence clock. | I-261 does not function as a notice to appear; 2004 NTA controls. |
| Whether the court has jurisdiction to review the discretionary denial of voluntary departure when the legal eligibility is unresolved. | Review is allowed for non-discretionary legal questions. | Discretionary denial is not reviewable; only legal questions are. | Court may review non-discretionary legal questions, including statutory eligibility. |
Key Cases Cited
- Abdurakhmanov v. Holder, 666 F.3d 978 (6th Cir. 2012) (review of IJ’s legal determinations alongside BIA analysis; standard of review de novo for legal questions)
- Neuens v. City of Columbus, 303 F.3d 667 (6th Cir. 2002) (stipulations on questions of law are not binding)
- Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (6th Cir. 2004) (non-discretionary legal determinations are reviewable; discretion limited)
- Santana-Albarran v. Ashcroft, 393 F.3d 699 (6th Cir. 2005) (continuous physical presence as a factor in relief determinations)