Ramos-Torres v. Holder
2011 U.S. App. LEXIS 6795
5th Cir.2011Background
- Ramos-Torres, a Mexican citizen, illegally entered the U.S. in 1980 and was convicted in 1982 of unlawfully entering the U.S.
- He received three years of unsupervised probation conditioned on not illegally returning to the U.S. and was granted administrative voluntary departure to Mexico after that conviction.
- He allegedly reentered illegally and, in 1993, obtained lawful permanent resident (LPR) status under IRCA's amnesty provisions.
- In 2006, Ramos-Torres was convicted of illegally transporting aliens and was subject to removal proceedings, with the IJ finding removability.
- Ramos-Torres sought cancellation of removal as an LPR, but the IJ held he could never have obtained LPR status due to his 1982 voluntary departure, and the BIA affirmed.
- On review, the Fifth Circuit analyzes whether the 1982 voluntary departure under threat of deportation interrupted continuous residence and rendered him ineligible for LPR cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ramos-Torres exhausted the issue of 'voluntary departure under threat of deportation' | Ramos-Torres argues the departure was under threat of deportation and should be reviewed as a legal question | Government contends there was no exhaustion for this legal challenge and the issue is not reviewable | No jurisdiction to review the legal question due to exhaustion requirement |
| Whether a voluntary departure under threat of deportation interrupts continuous residence for IRCA | Voluntary departure under threat is distinct from a deportation order and should not interrupt continuous residence | Voluntary departure under threat interrupts continuous residence just like an order of deportation | Voluntary departure under threat interrupts continuous residence, barring LPR eligibility |
| Whether Ramos-Torres could be eligible for cancellation of removal as an LPR given 1982 departure | IRCA requires continuous residence; voluntary departure did not terminate it if interpreted narrowly | Voluntary departure under threat breaks continuous residence, making LPR cancellation impossible | He remained ineligible for LPR cancellation due to interrupted residence |
| What is the proper standard of review for BIA's interpretation of immigration statutes | De novo review of legal questions with limited deference to BIA | Defer to BIA's interpretation unless plainly erroneous | Review de novo for legal questions, with some deference to BIA’s statutory interpretations |
Key Cases Cited
- Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir.2003) (voluntary departure interrupts continuous presence; relevance to continuous residence)
- Vargas-Gonzalez v. I.N.S., 647 F.2d 457 (5th Cir.1981) (departure under threat of deportation interrupts residence)
- Segura-Viachi v. I.N.S., 538 F.2d 91 (5th Cir.1976) (departure impacts residence status under immigration statutes)
- Phinpathya v. INS, 464 U.S. 183 (1984) (statutory interpretation of continuous residence/absence implications)
- Espinoza-Gutierrez v. Smith, 94 F.3d 1270 (9th Cir.1996) (absence distinctions under different provisions; caution against misapplication)
- Pedroza-Padilla v. Gonzales, 486 F.3d 1362 (9th Cir.2007) (voluntary departure and residence continuity considerations)
- Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.2003) (voluntary departure context and presence continuity)
- Mrvica v. Esperdy, 376 U.S. 560 (1964) (general principle on continuity and residence considerations)