In re Guadalupe AVILEZ-Nava, Respondent
File A75 769 895 - Los Angeles
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided August 10, 2005
23 I&N Dec. 799 (BIA 2005)
Interim Decision #3517
Where an alien departed the United States for a period less than that specified in section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(2) (2000) , and unsuccessfully attempted reentry at a land border port of entry before actually reentering, physical presence continued to accrue for purposes of cancellation of removal undersection 240A(b)(1)(A) unless, during that attempted reentry, the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.- The respondent‘s 2-week absence from the United States did not break her continuous physical presence where she was refused admission by an immigration official at a port of entry, returned to Mexico without any threat of the institution of exclusion proceedings, and subsequently reentered without inspection.
FOR RESPONDENT: Fabian C. Serrato, Esquire, Santa Ana, California
BEFORE: Board En Banc: SCIALABBA, Chairman; OSUNA, Acting Vice Chairman; HOLMES, HURWITZ, FILPPU, COLE, GRANT, MOSCATO, MILLER, and HESS, Board Members. Concurring Opinion: PAULEY, Board Member.
GRANT, Board Member:
In a decision dated August 4, 2003, an Immigration Judge found the respondent removable and denied her application for cancellation of removal under
The respondent is a native and citizen of Mexico who initially entered the United States in 1986 and resided here illegally. The record reflects that she has two United States citizen children, ages 12 and 2 years old.
Removal proceedings were commenced against the respondent with a Notice to Appear (Form I-862) dated May 18, 2001. At a hearing before an Immigration Judge, the respondent conceded removability and applied for cancellation of removal under
The Immigration Judge denied the respondent‘s application, relying on our decision in Matter of Romalez, 23 I&N Dec. 423 (BIA 2002). In that decision, we held that continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings. The Immigration Judge found that the respondent was statutorily ineligible for cancellation of removal under
On appeal, the respondent argues that the Immigration Judge erred in concluding that she had not shown the requisite 10 years of continuous physical presence. According to the respondent, she was simply told that she could not cross the border and was escorted to a door through which she returned to Mexico. She therefore asserts that she was not compelled to depart the United States under the threat of the institution of deportation or removal proceedings, as was the case in Matter of Romalez, supra. The DHS has not filed a response brief.
II. ISSUE
Our inquiry is whether the respondent has accrued the 10 years of continuous physical presence required to establish eligibility for cancellation of removal. We hold that an alien‘s continuous physical presence continues to accrue for purposes of
III. RELEVANT LAW
An alien may be eligible for cancellation of removal if it is established, inter alia, that he or she “has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date” of the application for relief.
Physical presence also terminates upon the commission of a specified criminal offense that renders the alien inadmissible or removable.
According to
In Matter of Romalez we addressed the alien‘s argument that pursuant to
Our ruling in Matter of Romalez has been upheld in the United States Courts of Appeals for the Fifth, Eighth, and Ninth Circuits. Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003) (holding that a departure under the threat of coerced deportation was properly regarded as a break in the continuum of the alien‘s physical presence for purposes of cancellation of removal); see also Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003). But see Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005) (holding that the record was insufficient to conclude that departures were under the threat of deportation where the alien was stopped and returned to Mexico two times by immigration officials); Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908 (8th Cir. 2005) (finding that the alien‘s apprehension and return by the Border Patrol was not a “presence-breaking voluntary departure” where there was no evidence that the alien was informed of and accepted the terms); Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004) (finding that Matter of Romalez is not applicable in the absence of
Under current law, therefore, the accrual of continuous physical presence terminates or breaks upon the occurrence of one of the following events: the service of a charging document; the commission of one of the enumerated criminal offenses; absences of a specified duration; or, as we held in Matter of Romalez, supra, voluntary departure under the threat of the commencement of removal or deportation proceedings. However, neither the Act nor our precedent decisions directly address the circumstances of an alien, such as the respondent, who has returned from a brief absence and is refused admission following an encounter with immigration officials at a land border port of entry.
The law currently provides that an applicant for admission who is coming or attempting to come into the United States at a port of entry is considered an arriving alien subject to inspection by immigration officers.
Under the law in effect at the time the respondent applied for admission in 1993, which was prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (effective Apr. 1, 1997) (“IIRIRA“), and the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (effective Apr. 24, 1996) (“AEDPA“), the respondent could have requested exclusion proceedings and have been either taken into custody, paroled into the United States, or returned to Mexico to await her hearing before an Immigration Judge. Section 236 of the Act, 8 U.S.C. § 1226 (1988 & Supp. V 1993). She might also have been permitted to withdraw her application for admission in exclusion proceedings before an Immigration Judge. See Matter of Gutierrez, 19 I&N Dec. 562, 564-65 (BIA 1988).4 However, it appears that none of these events occurred, and the respondent simply departed from the port of entry.
The question before us is whether there is a break in continuous physical presence for purposes of
Central to our holding in Matter of Romalez was the fact that execution of an order of removal would result in the termination of continuous physical presence. Matter of Romalez, supra, at 426-27. We concluded that the same should hold true for an action, taken in lieu of a formal removal, that also resulted in an enforced departure. Id.
Furthermore, we observed that the regulations governing special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, § 203(b), 111 Stat. 2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997) (“NACARA“), provide that a period of continuous physical presence is terminated when an alien has been removed under an order pursuant to any provision of the Act, has voluntarily departed under the threat of deportation, or has departed for purposes of committing an unlawful act.
In distinguishing this case from Matter of Romalez, we are guided in part by the recent decisions of the Seventh and Eighth Circuits, which hold that there was no break in continuous presence where an alien who encountered the Border Patrol after crossing into the United States at a place other than a port of entry was simply “turned back” and returned to Mexico. Reyes-Vasquez v. Ashcroft, supra;
In Reyes-Vasquez, the respondent returned illegally to the United States after a 2-week absence in 1990, was arrested by the Border Patrol, locked in a cell for several hours, fingerprinted, and then taken back to the border on a bus, without being told that he would otherwise have to go before an Immigration Judge. The Eighth Circuit explained that “voluntary departure under threat of deportation is the form of departure that breaks continual presence.” Reyes-Vasquez v. Ashcroft, supra, at 907. The court held, however, that “before 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.” Id. at 908.
Similarly, in Morales-Morales, after the respondent spent about 2 weeks in Mexico, she reentered the United States without inspection three or more times over a 6-day period, and each time she was apprehended and detained by the Border Patrol and voluntarily returned to Mexico. Morales-Morales v. Ashcroft, supra, at 420. The respondent testified that when she was detained by the Border Patrol prior to her voluntary departures, she never appeared before an Immigration Judge and was never placed in proceedings. The Seventh Circuit concluded that although it had no quarrel with the rule in Romalez, it could not equate being turned back at the border with a formal voluntary departure or a departure under an order of removal or deportation. Therefore, because there was no evidence in the record that Morales voluntarily departed for Mexico under the threat of removal or deportation proceedings, the court found no break in his continuous physical presence. Id. at 427-28.
We find that the circumstances of the aliens in these cases are sufficiently analogous to those of the respondent to make the circuit court decisions applicable here. In this case, the respondent was not made aware of the opportunity for exclusion proceedings. The evidence indicates that she genuinely had no idea how she would get back into the United States, and when taken aside by an official who told her she could not enter because she had no legal authorization to do so, she simply complied with his direction and returned to Mexico. There is no evidence that she left the port of entry under a threat of exclusion, that she withdrew an application for admission, or that she was fingerprinted, photographed, or otherwise detained. As the courts have held that apprehension and return to the border shortly after an illegal entry without formal acceptance of the terms of “voluntary return” or “voluntary departure” does not break an alien‘s continuous physical presence, it is clear that merely being turned back at a port of entry also does not end an alien‘s presence.
Consequently, we hold 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 pursuant to which the alien was
We note in this respect that a formal order of exclusion or expedited removal of an arriving alien is functionally equivalent to an order of deportation or removal, and it would be inconsistent with the purpose of such an order for it not to break an alien‘s presence. Moreover, an alien‘s acceptance of withdrawal of an application for admission, while not identical, is comparable to a voluntary return under the threat of removal, which was the specific subject of Matter of Romalez.7 We are mindful that procedures at the border are much changed following the enactment of the IIRIRA, resulting in a greater likelihood that refusals of admission will be better documented than in the past. Nevertheless, we believe these standards should apply, as well, to encounters at the land ports of entry that occurred prior to the IIRIRA. To hold otherwise would potentially bar otherwise eligible respondents from cancellation of removal on the basis of uncertain evidence and speculation as to what occurred during a particular encounter at a port of entry.
The evidence does not establish that at the time of her encounter at the San Ysidro port of entry in 1993, the respondent was formally excluded, was offered and accepted the opportunity to withdraw an application for admission, or was otherwise subjected to a formal, documented process pursuant to which she was determined to be inadmissible. We therefore hold that her departure and subsequent application for admission did not break her physical presence in this country, and that she has met the 10-year continuous physical presence requirement for cancellation of removal. This decision is consistent with the literal language of the statute and the purpose behind its enforcement provisions. It is also consistent with the principles that were enunciated in our decision in Matter of Romalez, supra, and endorsed by several circuit courts of appeals. Consequently, the respondent‘s appeal will be sustained, and the record will be remanded for consideration of her eligibility for cancellation of removal.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion, and for the entry of a new decision.
In re Guadalupe AVILEZ-Nava, Respondent
Because the respondent‘s attempted entry occurred prior to the effective date of enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (effective Apr. 1, 1997) (“IIRIRA“), this case is a strange and unfortunate choice as a precedential vehicle. However, because the majority has plainly signaled an intent that their decision (albeit dicta in this respect) apply to post-IIRIRA attempts to enter at a point of entry, the case is at the same time of unusual importance, with adverse consequences for the nation‘s efforts at effective border control.1
Inasmuch as Immigration Judges have generally been applying our decision in Matter of Romalez, 23 I&N Dec. 423 (BIA 2002), expansively to find a break in continuous presence virtually whenever an alien is compelled to leave the
In Matter of Romalez, supra, the Board held that when an alien is compelled to depart the United States under the threat of the institution of removal proceedings, such departure breaks the continuous physical presence required for cancellation of removal. In so holding, the Board found, inter alia, that the “Special Rules Relating to Continuous Residence or Physical Presence” set forth in
The majority here have decided 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 pursuant to which the alien was determined to be inadmissible to the United States.” Matter of Avilez, 23 I&N Dec. 799, 805-06 (BIA 2005). This standard, which no Federal court has adopted, cannot be found in the Act or the regulations and appears, notwithstanding its claimed roots in Matter of Romalez, to have simply been invented. To the contrary, I believe the proper standard is to be found in the regulations.
Matter of Romalez relied in significant part on the regulation at
Applying the correct standard, I would, if the events occurred today, find that the alien here did indeed experience a “meaningful interruption” of her continuous physical presence and that her directed “return” to Mexico thus was not “lacking in significance” as regards any break in her physical presence. Vasquez-Lopez v. Ashcroft, supra, at 974; see also Morales-Morales v. Ashcroft, supra. I cannot agree that a break in presence, post-IIRIRA, only takes place in the narrow circumstances adumbrated by the majority or described by the Eighth Circuit in Reyes-Vasquez v. Ashcroft, supra. Nothing in Matter of Romalez, supra, suggested that the kind of administrative voluntary departure in that case represented the only circumstances in which Congress contemplated a break in presence apart from the periods of absence set forth in the Act itself. Nor is a “meaningful interruption” standard consistent with such an interpretation. Yet that is essentially what the Eighth Circuit (and the majority here, with the exception of an alien who formally withdraws an application for admission) would prescribe. The Eighth Circuit asserts that Matter of Romalez, supra, is limited to situations in which a threat of the institution of removal proceedings is communicated to the alien prior to the alien‘s acceptance, rather than being placed in such proceedings, of the offered alternative of voluntary departure. But Romalez, although involving such facts, cannot be confined to this scenario. If it were, then even a departure pursuant to an order of removal would not break presence, a result gainsaid by the very regulation we applied in
With the preceding as backdrop, it becomes evident that the most important factors underlying Matter of Romalez-as applied to the different circumstances of aliens seeking to enter this country at a land port of entry-are not those involving the quid pro quo aspect of that decision wherein an alien is presented with a choice to depart “voluntarily” or undergo removal proceedings, but instead require an assessment of the extent to which an encounter with immigration enforcement authorities, while an alien is seeking to enter unlawfully, supports a conclusion that the alien‘s earlier departure and attempted reentry have broken the continuity of the alien‘s physical presence.8 Applying a “meaningful interruption” test, I would agree, as the majority here conclude, that an alien‘s withdrawal of an application for admission would break presence despite the fact that such a withdrawal need not, under the regulations, be accompanied by a threat of the institution of removal proceedings.9 Similarly, I would find that where an alien‘s post-IIRIRA encounter with immigration authorities at a port of entry was significant as evidenced by the alien‘s being interrogated, detained, fingerprinted, and photographed prefatory to being allowed to “return”10 rather than being placed in expedited removal proceedings, such an event would break presence.11 It is admittedly a much closer question whether a “meaningful interruption” of continuous physical presence is properly
Congress in the IIRIRA has distinguished between enforcement of our immigration laws at the time aliens seek to enter the United States at a port of entry and enforcement of those laws once entry has been made (lawfully or otherwise). It has done so by enacting a regime that allows for an expedited order of removal when authorities at a point of entry determine that an alien (other than one expressing a fear of persecution) has no right to be admitted to this country. See section 235(b) of the Act;
In this context, it is unrealistic to conclude that Congress would not and did not view as a “significant” or “meaningful” interruption of an alien‘s continuous presence the fact that, upon an attempted unlawful entry at a land port of entry an alien has been subjected to actions by immigration officials, such as interrogation, detention, fingerprinting, and/or photographing, that could have led to the institution of expedited removal. An alien should not derive an advantage in terms of meeting the continuous physical presence requirement, in all circumstances short of a withdrawal of admission or an actual threat of removal being conveyed, because immigration authorities permitted the alien to leave the port of entry rather than using the harsher alternative of expedited removal proceedings.13
I therefore respectfully concur.