Reyes-Sanchez v. Holder
646 F.3d 493
| 7th Cir. | 2011Background
- Reyes-Sanchez, a Mexican citizen, entered the U.S. illegally in 1987 and lived there with family.
- She briefly returned to Mexico in August 2001 and was apprehended at the border near El Paso on August 19, 2001.
- She admitted unlawful presence on a Form I-826 and chose to return to Mexico, signing under a fictitious name Christina Maldonado-Rodriguez.
- In May 2003, ICE raided her home; she was again apprehended and issued a Notice to Appear charging removability for unlawful presence.
- Immigration proceedings began in 2004; after government disclosure showing the 2001 departure, the IJ determined there was a break in continuous physical presence, which the BIA affirmed; the court reviews and upholds that determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2001 border departure breaks continuous presence | Reyes-Sanchez argues border turnover lacked formal safeguards and thus may not be a break | Government contends Romalez-Alcaide governs, showing a departure under threat of removal breaks presence | Yes, there was a break in continuous presence due to a formal, documented departure under threat of removal |
| Whether Form I-826 and border documentation informed rights sufficiently | Form did not adequately explain potential cancellation eligibility | Form informed rights and consequences; adequate under Romalez-Alcaide framework | Form I-826 provided sufficient notice of rights and consequences, supporting the break as formal/documented |
| What standard governs review of discretionary relief in this context | Review should consider discretionary factors | Review restricted to statutory/legal questions, not discretionary determinations | Court reviews for substantial evidence, not de novo discretion; denial upheld under statutory interpretation |
Key Cases Cited
- In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (departure under threat of removal may break continuous presence)
- Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004) (continuous physical presence is a non-discretionary statutory interpretation issue)
- Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005) (formal, documented process at border can break presence; mere border refusal not enough)
- Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005) (informal border refusals and lack of formal process relevant to break in presence)
- Morales-Morales, 384 F.3d 418 (7th Cir. 2004) (discusses Morales-Morales interpretation of continuous presence)