Rosario-Mijangos v. Holder
2013 U.S. App. LEXIS 9798
| 2d Cir. | 2013Background
- Rosario-Mijangos, a Mexican citizen, seeks cancellation of removal; two 2007 encounters with Border Patrol yielded voluntary returns to Mexico.
- He had signed Form I-826 and Form I-213 during each encounter, admitting illegal presence and waiving a hearing; he alleges he did not read or understand the forms.
- An IJ found the encounters constituted a formal, documented process and that Rosario-Mijangos voluntarily elected to return, breaking ten-year continuous presence.
- The BIA affirmed, holding the voluntary returns were a formal process sufficient to sever continuous presence under Avilez-Nava and Romalez-Alcaide.
- Rosario-Mijangos later moved to reopen; the BIA denied the motion and this court reviews the denial and the underlying eligibility for cancellation.
- The court ultimately denies Rosario-Mijangos’s petitions for review of the BIA’s March 31, 2011 decision and the November 14, 2011 denial of the motion to reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether voluntary returns interrupted continuous presence | Rosario-Mijangos contends no formal process occurred. | Rosario-Mijangos voluntarily returned and signed waivers pursuant to a formal process. | Yes; continuous presence was interrupted. |
| Whether the returns constituted a formal, documented process | The procedure was not a formal removal process as no proper exclusion or hearing occurred. | The I-826/I-213 procedures and signatures evidenced a formal process. | Yes; procedures met Avilez-Nava criteria for formality. |
| Whether the motion to reopen was properly denied | Ineffective assistance theory could affect exhaustion of remedies under 8 U.S.C. § 1252(d)(1). | No prejudice from counsel's belated brief; no new evidence. | Denied; issues exhausted and preserved by the agency decision. |
Key Cases Cited
- Ascencio-Rodriguez v. Holder, 595 F.3d 105 (2d Cir. 2010) (defines continuous presence and applies deference to BIA interpretation)
- Romalez-Alcaide v. INS, 23 I. & N. Dec. 423 (BIA 2002) (voluntary departure under threat of deportation terminates continuous presence; formal process required for interruption)
- Avilez-Nava v. INS, 23 I. & N. Dec. 799 (BIA 2005) (formal, documented process required to interrupt continuous presence; contrasts with informal border encounters)
- Barrera-Quintero v. Holder, 699 F.3d 1239 (10th Cir. 2012) (voluntary return procedures can interrupt continuous presence when formal and documented)
- Reyes-Sanchez v. Holder, 646 F.3d 493 (7th Cir. 2011) (voluntary return with formal documentation interrupts continuous presence)
- Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007) (review of agency factual findings under substantial evidence; deference to BIA findings)
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (standard for reviewing agency factual determinations)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir. 2006) (impact of credibility determinations on factual findings)
- Diallo v. INS, 232 F.3d 279 (2d Cir. 2000) (courts need not critique every constitutive detail of testimony in credibility)