Ascencio-Rodriguez v. HolderAscencio-Rodriguez v. Holder
Case Information
*1 08-3058-ag
Ascencio-Rodriguez v. Holder
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008
(Argued: May 8, 2009 Decided: February 17, 2010 )
Docket No. 08-3058-ag
J ESUS A SCENCIO -R ODRIGUEZ ,
Petitioner ,
v.
E J , OLDER H H. RIC R ., [*] Attorney General of the United States,
Respondent .
Before: W ALKER , ABRANES C , and W , ALLACE [**] [***] Circuit Judges .
Petitioner Jesus Ascencio-Rodriguez (“Ascencio-Rodriguez” or “petitioner”) seeks review of a
May 22, 2008 decision by the Board of Immigration Appeals affirming the November 3, 2006 judgment
of an Immigration Judge, which denied his application for cancellation of removal but granted his
request for voluntary departure. We hold, in a question of first impression in this Circuit, that, for the
purposes of cancellation of removal eligibility under
R OBERT C. R OSS , West Haven, CT, for Petitioner Jesus Ascencio- Rodriguez.
C HRISTINA B ECHAK P ARASCANDOLA , Trial Attorney, Office of Immigration Litigation (Gregory G. Katsas, Assistant Attorney General, Civil Division, and Richard M. Evans, Assistant Director, Office of Immigration Litigation, on the brief ), United States Department of Justice, Washington, DC, for Respondent.
J OSÉ A. C ABRANES , Circuit Judge :
Petitioner Jesus Ascencio-Rodriguez (“Ascencio-Rodriguez” or “petitioner”) seeks review of a
May 22, 2008 decision by the Board of Immigration Appeals (“BIA”) affirming the November 3, 2006
judgment of an Immigration Judge (“IJ”), which denied petitioner’s application for cancellation of
removal but granted his request for voluntary departure. Petitioner asserts that the IJ and thе BIA
erred in concluding that his arrest and conviction for illegal entry into the United States in February
2001 interrupted his “continuous physical presence” in the United States and thereby rendered him
ineligible for cancellation of removal pursuant to
BACKGROUND
Petitioner was born in Mexico in 1969 and first came to the United States in April 1989. At some point in June or July of 1994, he was arrested by an immigration officer and “given a document” to leave the country. He contends that he returned to the United States in April 1995. Petitioner returned to Mexico again in 1998 to get married and re-entered the United States shortly thereafter without incident.
Petitioner claims that he next left for Mexico in early February 2001 to visit his ailing mother and thereafter was arrested three times by the Border Patrol when trying to re-enter the United States. The second of these three arrests occurred on February 20, 2001, near Brownsville, Texas. Petitioner admits that in connection with that attempt to re-enter, he paid $2500 for fraudulent documents—including a border crossing card in the name of Raphael Sanchez-Sanchez—that he could show to the Border Patrol. Upon questioning by the Border Patrol, petitioner apparently gave his correct name and was then arrested at the checkpoint.
Petitioner was charged that same day with entering the United States illegally in violation of
The record is less than clear with respect to events that followed. Petitioner’s judgment of conviction, entered on February 28, 2001, indicates that he was sentenced to 90 days’ imprisonmеnt, but the judgment also states that the “execution” of the sentence was suspended and that Ascencio- Rodriguez was “placed on probation without supervision for a period of three (3) years, conditioned on no further violation of federal and/or state laws.” J.A. 206. A Record of Deportable/Inadmissible Alien form produced by the government also indicates that on February 20, 2001 petitioner was granted a “Voluntary Return in lieu of prosecution.” J.A. 157. According to petitioner’s testimony before the IJ, after appearing in court and signing some documents, he was placed on a bus and returned to Mexico on the same day of his arrest.
Petitioner attempted to re-enter the United States on March 5, 2001 but was arrested again by the Border Patrol. He asserts that he attempted to re-enter the United States for a fourth time on April 20, 2001 and successfully evaded the Border Patrol.
On May 19, 2005, the Department of Homeland Security in Vermont issued petitioner a Notice
to Appear, in which it charged him with removability under
It is well established that aliens detained at the border are not entitled to the same protections as those who have been admitted into the United States. As the Supreme Court has explained:
The distinction between an alien who has effected an entry into the United States and оne who has never entered runs throughout immigration law. See Kaplan v. Tod ,267 U.S. 228 , 230 (1925) (despite nine years’ presence in the United States, an “excluded” alien “was still in theory of law at the boundary line and had gained no foothold in the United States”); Leng May Ma v. Barber ,357 U.S. 185 , 188-190 (1958) (alien “paroled” into the United States pending admissibility had not effected an “entry”). It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.
Zadvydas v. Davis
,
The Attorney General may cancel removal of . . . an alien who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period; (C) hаs not been convicted of an offense under [8 U.S.C. § 1182(a) , § 1227(a)(2), or § 1227(a)(3)], subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
denied petitioner’s application for cancellation of removal on the basis that petitioner was statutorily
ineligible for cancellation because he had not met his burden of establishing ten years’ continuous
physical presence in the United States, as required by
In connection with his holding, the IJ made two relevant findings. First, after noting that
continuous physical presence ends when an alien departs the United States under the threat of initiation
of removal proceedings, the IJ found that petitioner departed the United States under the threat of such
proceedings at least three times in 2001 and, accordingly, had ended his “physical presence” in the
United States within the meaning of
Petitioner filed a timely notice of appeal to the BIA. On May 22, 2008, the BIA adopted and affirmed the IJ’s decision. The BIA noted that it had previously
held that an immigration official’s refusal to admit an alien at a land border port of entry will constitute a break in the alien’s continuous physical presence if there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his application for admission, or was subjected to any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.
J.A. 2 (citing In re Avilez-Nava , 23 I. & N. Dec. 799). The BIA then noted that petitioner was arrested on February 20, 2001 and concluded that the evidence established that petitioner “was subjected to a formal, documented process and determined to be inadmissible.” J.A. 3. Accordingly, the BIA determined that the petitioner was ineligible for cancellation of removal because he сould not show that he had been physically present in the United States for a continuous period of not fewer than ten years. This petition timely followed.
DISCUSSION
“Where, as here, the BIA adopts the IJ’s reasoning and offers additional commentary, we
review the decision of the IJ as supplemented by the BIA.”
Wala v. Mukasey
,
I.
Aliens who are present in the United States but have not attained permanent resident status and
are subject to removal may petition for cancellation of removal pursuant to
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the
United States, or a foreign country relating to a controlled substance (as defined in [
is inadmissible.
Petitioner’s illegal entry into the United States in violation
Mireles-Valdez v. Ashcroft
,
Although no Court of Appeals has rejected the central holding of
In re Romalez-Alcaide
, several
have held that it does not apply in cases where an alien is simply turned away at the border. In
Reyes-
Vasquez v. Ashcroft
, for example, the Eighth Circuit held that, for
In re Romalez-Alcaide
to apply, the
threat of deportation, and its consequences, must be expressed to and understood by the alien. 395
F.3d 903, 907 (8th Cir. 2005). According to the Eighth Circuit, this understanding is generally absent
when an alien is turned away at the border, and therefore frustrated entries ordinarily do not qualify as
“voluntary departures” under a threat of deportation so as to operate to break an alien’s “continuous
physical presence” in the United States.
See id.
at 908 (“[B]efore it may be found that a presence-
breaking voluntary departure occurred, the record must contain some evidence that the alien was
informed of and accepted its terms.”);
see also Morales-Morales
,
The BIA again considered the circumstances that may constitute a break in continuous physical presence in In re Avilez-Nava , 23 I. & N. Dec. 799. In that case, the BIA explicitly adopted the holdings of the Eighth Circuit in Reyes-Vasquez and the Seventh Circuit in Morales-Morales in concluding that being turned back at the border “without formal acceptance of the terms ‘voluntary return’ оr ‘voluntary departure’ does not break an alien’s continuous physical presence.” Id. at 805. The BIA thus held that
an immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected to any other formal, documented process pursuаnt to which the alien was determined to be inadmissible to the United States .
Id. at 805-06 (emphasis added).
The BIA did not explain what might qualify as a “ formal, documented process pursuant to which the alien was determined to be inadmissible,” id. (emphasis added), but it added that the following evidence might suffice to demonstrate such a process:
testimony or documentary evidence of a legally enforced refusal of admission and return such as a Record of Deportable/Inadmissible Alien (Form I-213), a Notice of Action—Voluntary Departure (Form I-210), an IDENT printout, affidavits or statements of the alien or immigration officials, photographs, fingerprints, or other appropriate forms and official records of the DHS.
Id.
at 806 (emphasis added). The BIA cautioned, however, that if “the evidence indicates that the
alien’s encounter with immigration authorities involves nothing more than being returned to the border
following refusal of admission for failure to have proper documents, the encounter does not break
continuous physical presence.”
Id.
In
Tapia v. Gonzales
, the Ninth Circuit, in the only reported decision
to have considered the BIA’s “formal, documented process” requirement, held that the acts of
fingerprinting and photographing an alien do not transform a border “turnarоund” into a formal,
documented process that breaks an alien’s period of continuous physical presence.
II.
Our Court has not yet had the opportunity to apply the BIA’s decisions in
In re Romalez
-
Alcaide
and
In re Avilez-Nava
. We hold today that the BIA’s interpretation of the cancellation of removal
statute expressed in both of those decisions is reasonable and is entitled to
Chevron
deference.
See
Chevron
,
III.
As the IJ noted, the circumstances of petitioner’s arrest on February 20, 2001 and his
subsequent departure from the United States are, on this record, somewhat of a mystery. The record
reveals with certainty, however, the following facts: Petitioner was arrested in the early morning hours
of February 20, 2001 while attempting to enter the United States. He was subsequently charged in the
District Court with improper entry in violation of
Petitioner does not dispute that his conviction was the product of a “formal, documented
process,” but he does contend that the conviction has no bearing on his admissibility. Although he
*12
correctly notes that the statute under which he was convicted,
Petitioner responds that there are exceptions by which an otherwise inadmissible alien might be
deemed admissible, and therefore a conviction under
*14
The fact that the judgment of petitioner’s conviction did not include an
explicit
finding of
inadmissibility (which, in any event, would have served no purpose) is irrelevant where, in this case, it
served as the functional equivalent of such a finding. To allow an alien to plead guilty to illegal entry,
be convicted of the crime, leave the country, and yet continue to accrue “continuous physical
presence” time within the meaning of our immigration laws would be contrary to the objectives of
those laws and the BIA’s relevant decisions.
See In re Avilez-Nava
, 23 I. & N. Dec. at 806 (explaining
that formal orders of exclusion, expedited removal, and the withdrawal of an application for admission
are all the equivalent of, or comparable to, an order of removal or voluntary return under the threat of
removal);
In re Romalez-Alcaide
, 23 I. & N. Dec. at 429 (“We deem it contrary to the overall objectives
of the IIRIRA to allow an alien to continue to accrue time for purposes of obtaining relief after the
alien departs under . . . the threat of [a formal order of removal].”). Petitioner was subjected to a
“formal, documented process” that went well beyond merely being turned back at the border and that
wаs, therefore, sufficient to terminate his “continuous physical presence” within the meaning of
CONCLUSION
To summarize, we hold that (1) the decisions of the Board of Immigration Appeals in
In re
Romalez-Alcaide
, 23 I. & N. Dec. 423 (B.I.A. 2002) (
en banc
), and
In re Avilez-Nava
, 23 I. & N. Dec. 799
(B.I.A. 2005) (
en banc
), are reasonable interpretations of
Accordingly, the petition for review is DENIED .
Notes
[*] Pursuant to
[**] The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The Honorable John M. Walker was designated as the third member of this panel. See Second Circuit Internal Operating Procedure E(b) (formerly § 0.14(b) of the Local Rules).
[***] The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
[1] This statute provides, in relevant part, that “[a]ny alien who (1) enters or attempts to enter the United States at
any time or place other than as designated by immigration officers . . . shall, for the first commission of any such offense,
be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such
offense, be fined under title 18 or imprisoned not more than 2 years, or both.”
[2] This provision provides that “[a]n alien present in the United States without being admitted or paroled, or
who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.”
[3] This provision provides, in relevant part: “Any nonimmigrant who . . . is not in possession of a valid
nonimmigrant visa or border crossing identification card at the time of application for admission, is inadmissible.”
[5]
[6] This subsection provides as follows:
[
[7] This subsection permits the Attorney General to adjust the immigration a status of an alien who entered the
United States “without inspection” by an immigration officer,
see
[8] We do not mean to suggest that the procedures followed by the government in this case were exemplary.
Indeed, many of the records produced by immigration authorities in this case raise more questions than they answer.
Nevertheless, it is apparent from the record before us that petitioner’s departure was more akin to a formal removal than
the informal interactions at the border that the BIA and other Courts of Appeals have found insufficient to terminate a
period of continuous physical presence.
Cf. Tapia
,