*1 Force, CA, Diego, the Air fact that he Attorney, tion to San for Plaintiff- discharge Appellee. not contest his does DADT, finding Air Force’s Calandra, Gen., A Doris District Atty. made his sexual orientation state- Hensala Office, Sacramento, Attorney General’s the Air ments various members of CA, Seale, Lee E. Of- General’s officer, Force, commanding including his fice, Sacramento, CA, for Intervenor. separation purpose procuring for the McCabe, Michael J. Law Offices of Mi- service, the district court not err did McCabe, CA, chael San Diego, for Defen- affirming the Air or- Force’s decision dant-Appellant. recoupment of the cost of dering Hensa- Contrary education.
la’s medical SCHROEDER, Before: Chief Judge. majority’s speculation, the Deutch memo status; is not aimed at it aimed at ORDER procuring conduct—the of a dis- Upon majority the vote of nonre- recipient so as to charge render the regular judges court, cused active government educational funds unable to is ordered that this case be reheard perform military fulfill his commitment to pursuant en court banc to Circuit Rule 35- required period. service three-judge panel 3. The shall majority hold Because does not Hen- be precedent by cited as or to this court part any his of the bargain sala to without Circuit, district court of the Ninth so, legal doing respectfully excuse I except to extent adopted by the en majority from Part dissent II.C of the banc court. opinion. Petitioner, VASQUEZ-LOPEZ, Delfino America, UNITED STATES of Plaintiff-Appellee, v. ASHCROFT, Attorney John Intervenor, California, State General, Respondent. No. 01-71827. Aarmyl
Raphyal CRAWFORD, aka Crawford, Defendant- Court of Appeals, United States
Appellant. Ninth Circuit. No. 01-50633. Nov. Submitted 2002.* United States Court of Appeals, Filed Jan. 2003.
Ninth Circuit. Sept. Amended 2003. Sept. Filed: Curnow, Atty., P.
David Asst. U.S. Sheri Hobson,
Walker USSD-Offiee of U.S.
* 34(a)(2). panel unanimously R.App. finds this case suitable P. argument. decision without oral Fed. *2 Phoenix, Arizona, Franquinha,
Michael
petitioner.
for
Jr.,
McCallum,
D.
Alison R.
Robert
Drucker,
Keener,
Im-
Donald E.
Office
D.C.,
Litigation, Washington,
for
migration
respondent.
STAPLETON,**
Before:
FERNANDEZ,
O’SCANNLAIN, and
Judges.
Circuit
ORDER
13, 2003,
January
The
filed on
amended.
ordered
The Clerk is instructed
Judge
to file the
Ber-
opinion.
amended
denying re-
zon’s dissent from the order
hearing en banc shall also be filed.
unanimously
panel has
voted
petition
rehearing.
Judge
deny
for
deny
petition
voted to
O’Scannlain
cuit, sitting by designation.
Stapleton,
**The
Senior
Honorable Walter K.
Judge
Cir
United States
Third
Circuit
banc,
Judge Staple- Lopez eligibility
rehearing
en
1229b(b)(l)
Judge
Fernandez
so recom- under 8
ton
because his
departure,
mended.
although for fewer than 90
days, was
of deportation.
threat
petition
The full
court was advised
*3
should have
reheard
case en banc
an active
rehearing
judge
for
en banc and
in
give
order to
to the language
effect
requested a vote whether to rehear the
on
Congress
Congress
chose: “When
acts to
en banc.
matter failed
matter
The
to re-
statute,
amend
we
presume
intends its
majority
ceive a
of the votes of the nonre-
amendment
to have
real
substantial
in favor of
judges
cused active
en banc
INS,
386, 397,
effect.”
514
Stone v.
U.S.
R.App. P. 35.
consideration. Fed.
1537,
(1995).
115 S.Ct.
nocent” and physical presence requirement physical pres rupt” an alien’s 1229b(d)(2). 1254(b)(2) See Rivera- (repealed of 8 U.S.C. ence. See (10th statute, INS, 1996). amended we v. 214 F.3d Jimenez Applying Cir.2000) question un (remanding the concluded that brief, commenting: agree “not a “We with deportation BIA after der threat of absence from return casual, petitioners’ the INS that two-week and innocent being placed depor former States” to Mexico in lieu of INS, 1254(b)(2). brief, Hernandez-Luis v. proceedings See tation was not casual (9th Cir.1989). INS, 869 F.2d innocent. See Hernandez-Luis *4 Cir.1989).... (9th 496, This 869 F.2d 498 “brief, casual, IIRIRA eliminated however, irrelevant, light IIRI- is a exception, substituting and innocent” relating to special RA’s rules continuous stating that the continuous bright-line rule physical presence.”). requirement is not met than single departure of more if there is a of the INA is no Judicial amendment more aggregate absences of days 90 or rights it limits aliens’ proper more when “brief, casual, The former days. than 180 than when it enhances them. Section standard that 8 U.S.C. and innocent” 1229b(d)(2) a therefore be read as should 1229b(d)(2) replaced preserved Phinpathya, 464 “moderating provision,” it of the statute in which parts two other 584, 190, creating at 104 S.Ct. U.S. IIRIRA. 8 also before See U.S.C. existed exception continuous pres- to the 1254a(c)(4) (temporary protected §§ sta- any ence of 90 requirement 1255a(a)(3)(B) tus), (adjustment of status fewer, days long as alien’s ab- entrants); accord 8 U.S.C. pre-1982 ag- 180 in the sences do not exceed 1255a(a)(3)(B) 1254a(c)(4) (1995), §§ gregate. (1995). II Congress’s 1996 altera
Setting aside otherwise, opinion In claims deciding its deliberate inaction ignoring tions and Immigration Ap- defer Board of to INA,1 the elsewhere (BIA’s) peals’ interpretation post- precisely once more accomplishes case now-supersed- IIRIRA INA to include the told us could not: Phinpathya what we Chevron, U.S.A., standard, invoking ed Congress statute wrote. amending the Inc. v. Resources Coun- “brief, Natural time, This reads the casu panel Defense cil, Inc., 2778, U.S. 104 S.Ct. 81 al, 467 innocent” standard back into the (1984). L.Ed.2d The decision 694 BIA’s physical presence provision, re continuous meaning of addressing the regime affirmatively by deleted taining the 1229b(d)(2), In re 23 by objec Congress replaced single, (BIA tive, so, I. & N. Dec. 2002 1189034 doing WL clear rule. 2002) (en however, banc), not, produces statutory interpretation that is is entitled to approach by with the taken the Chevron deference. odds (1987) "brief, "Congress language (holding that if includes 1. The two casu static al, provisions Congress particular language and innocent” that section in one of a statute supports left untouched in IIRIRA the conclu but another section of the same omits it in explicit sion that would have been Act, generally presumed that is preserve exception had it wanted such an intentionally purposely dispa acts physical presence require to the continuous exclusion.”) (quotation rate inclusion Cardoza-Fonseca, ment. See INS v. omitted). marks and citation S.Ct. 434 421. 432. 107 L.Ed.2d I am unconvinced that a statutory provision for a in- reasonable 1229b(d)(2) terpretation by made sufficiently is on its administrator of ambiguous added). an agency”) the first prong face to survive of Chevron.2 regard, I am wrong But even if First, the BIA’s interpretation con- the stat- agency interpretation that adds to (d)(2) demns section 1229b sur- mere “something ute which is not cannot there” plusage: provision If the is not as a viewed Calamaro, States v. stand. United limitation on the physical pres- 351, 359, requirement, L.Ed.2d ence then explicit U.S. S.Ct. there is no (1957). limitation based on brevity As this court occa- of absence. has had Phinpathya precludes recognition any sion to note: 1229b(d)(2) implicit limitation. Section of an officer power administrative then purpose: explic- loses all Without or board administer federal statute it or implicit exception depar- for shorter prescribe regulations and to rules and tures, there no reason to provide law, power is not the make end more specified absences of than a number power can delegated for no such days are breaks adopt but the Congress, power regu- *5 presence. So the BIA’s conclusion carry lations into effect the will of exempt “the statute does not specifically expressed by statute. the all departures” such shorter and that “the this, A which does but regulation not do statutory language literally ... does not operates harmony create rule out of forgive any single departure days of 90 or statute, with the is a nullity. mere aggregate departures less or of 180 Cosmetology Riley, less,” Romalez-Alcaide, Cal. Coalition v. 110 or I. N. Dec. 23 & (9th Cir.1997) 1454, 425-26, F.3d 1460-61 (quoting at cannot be squared with Phin- Comm’r, Equip. pathya. Manhattan Gen. Co. v. 129, 134, 397, 297 56 S.Ct. L.Ed. U.S. 80 Second, one of the BIA’s rationales— (1936)). 528 Because its statuto- inventive by panel the referred to that—is
ry interpretation cannot for a number of
1229b(d)(2)’s
(“Treatment
section
title
reasons be reconciled with
1996
Congress’s
”)
certain breaks in
clarifies Con-
regarding
continu-
amendments
breaks in
gress’s intent not to define
all breaks
presence,
ous
Romalez-Alcaide is physical presence. But
un-
Congress was
Chevron,
worthy
not
of deference. See
doubtedly referring to other
parts
844,
(“a
467
at
104
court
issue, see,
U.S.
S.Ct. 2778
e.g.,
INA that address the
8
1229b(b)(2)(B),3
may
not substitute its
own construction
U.S.C.
not
agency-
construction,
analysis,
step
(internal
ambiguous.”)
quo-
2.
In a Chevron
the
is to
are
first
directly spo-
omitted).
consider "whether
has
tation marks
citations
precise question
ken to
ron,
Chev-
the
at issue.”
842,
U.S. at
467
created, regulation except does not to NA- exceptions unenumerated It no R.R. CARA. therefore deserves Chevron statute. Bhd. language Cf Co., regard with to NACARA. & R.R. deference save v. Baltimore Ohio Trainmen 1387, L.Ed. 67 S.Ct. 91 Fourth, recognizes, as the itself (“the (1947) heading can- of a section post, n. Opinion, see Amended at 972 text”). meaning limit the plain incorrectly upon drew Romalez-Alcaide provision, INA’s reinstatement Third, majority the Romalez-Alcaide 1231(a)(5), support its holding. it called “Re improperly considered what astonishingly In a that is statement mis- regulations Regulations,” the same lated majority leading, “[u]n- BIA wrote case. panel opinion on relied der the construction respondent’s regulations implement post-IIR- Those statute, who departed Nicaraguan Adjustment and Central IRA formal order of removal could nevertheless (NACARA), Act of 1997 American Relief eligibility retain for cancellation of remov- 105-100, Pub.L. No. Stat. al, despite to all bar relief 105-139, (1997), by Pub.L. amended No. illegally persons being who return after (1997).4 The Romalez-Al 111 Stat. I. & removed.” N. that, given binding majority held caide Dec. at 426. is reasoning This nonsensical. BIA, on the “even regulations nature of Alcaide, removed, had he Romalez been specifically applies though regulation would, contrary, ineligible applica only in context NACARA cancellation of removal his return. upon apparent ... how we could tions 1231(a)(5) so, says quite indepen- Section cancella respondent find the *6 dently any physical presence of without a con adopting tion of removal Romalez-Alcaide, requirement.5 But like directly of the statute that is at struction subject at no Vasquez-Lopez, was time to adopted At position by odds with the the 1231(a)(5) removal, an order of so section 240.64(b)(3).” § torney General in 8 C.F.R. 1231(a)(5) inapplicable to him. Section 428; I. & N. Dec. at but see id. at 445 separately, can be enforced without affect- (Board Rosenberg, dissenting) Member ing administrative voluntary departures. (“we authority if to proceed exceed our we (and provision ‘relat simply Fifth, flailing failing read seems for after to find) the regulations applicable any plausible ed’ into statutory grounding for respondent”). holding, As all the BIA Board Mem majority its the Romalez-Alcaide agree, and the this on panel understanding bers case the relies its of IIRIRA’s regulations voluntarily departed 4. The state for aliens who fall Act or the alien has un- NACARA, applicant deportation under "the be con- the shall der threat of or when the departure purposes committing sidered to have failed to maintain continuous for is made of 240.64(b)(3). physical presence in the United States if he an unlawful act.” Id. or departed she has from United States for 1231(a)(5) any period any ("If days in excess of 90 or for 5. See 8 U.S.C. periods aggregate days. exceeding General finds that an alien reentered applicant any period illegally having must establish that United States after been re- having departed voluntarily, of absence than 90 casual less moved removal, meaningfully interrupt prior innocent and did not an order of order remov- of period presence original of continuous al is reinstated from its date and is States,” 240.64(b)(2), reviewed, subject being reopened the United 8 C.F.R. not period apply may and also that "a of continuous the alien is not not for Act, any is terminated an alien is relief whenever under this and the alien shall prior any removed the United from States under an be removed under the order time added). pursuant provision reentry.”) order issued after the Relief”). ligible 1229b(d)(l), See 23 I. & N. for Section purpose. sought at 429 to deter (“Congress therefore, Dec. my supports understanding immigration to the United States illegal physical presence provision, curbing the aliens to incentive for extend panel’s: Congress not the evidently decid- stays country and prolong their subject ed to treat aliens pro- removal cases in gain immigration their order to ceedings, with protections their attendant benefits.”). below, IV, I in part discuss (and delays), differently apprehended fundamentally why argument misun- aliens for whom proceedings such were Congress’s provision derstands cancel- never instituted. Although opin- lation removal the INA. regards anomalous, ion that distinction as short, provides Romalez-Alcaide no Congress believed otherwise. analytical panel’s sustenance for deci-
sion. IV In its ardor not reward an alien who Ill returned to the taking United States after statutory underpinning Bereft for its voluntary administrative departure, holding, deploys the panel opinion IIRI- panel exhibits a myopic understanding of “stop justify RA’s time” rule its deci- immigration IIRIRA, Through law. Con- sion. See Opinion, post, Amended at gress made leading the strictures to can- (“[T]o regard [petitioner] 13494-95 as hav- onerous, cellation of extremely removal ing maintained his would tightening requirements the former inconsistent with concept suspension of deportation. See Romero- with the ‘stop Torres v. Ashcroft, 327 F.3d n. 889 & 1229b(d)(l) provisions partic- time’ (9th Cir.2003). time, the same At Con- ular.”). provision But the “stop time” does gress did counterweight intend some apply to the class of aliens which in- general policy rewarding ex- Vasquez-Lopez, cludes whom removal Otherwise, illegal tended stays. there proceedings are never instituted and a No- would be no provi- *7 Appear (formerly tice to an Order to Show at so all. Cause) INS, never issued. See Ram v. (9th Cir.2001); Allowing Vasquez aliens like to Lopez 243 F.3d 516 1229b(d)(l) (“any period attempt passage through eye of of continuous one of 4,000 presence residence or needles not run does counter to the in the United States shall deemed to general post-IIRIRA of the restrictiveness ... when end the alien is served a notice Instead, INA.6 fairly evaluating the contin ”) added). to appear physical presence requirement uous mere second, implements a ly equally valid con Congress could “stop have made the gressional policy, recognizing the need for apply rule time” to who take volun- aliens exceptions in rare situations —those in tary departure being in lieu of served with “exceptional which the alien can and show Appear, a Notice to not but chose to do so. 1229b(c) extremely hardship unusual to the alien’s (omitting See also U.S.C. child, parent, of who is a category accept spouse, those who administra- citizen of voluntary departure tive from “Aliens an alien lawfully Ine- the United States or ad effect, applies only quota year 6. Cancellation of removal a the first to that the was in aliens, group February. small of out of which no limit more was reached in month of 4,000 granted per Stephen Legomsky, Immigration than can be relief fiscal See H. 1229b(e)(l). (1997). year. Refugee Policy See 8 U.S.C. In Law and voluntary departure tive is not dis- simply residence.” permanent mitted for 1229b(b)(l)(D). very positive inquiry. This limit of U.S.C. removal, of of cancellation availability
ed
aliens such
nec-
Vasquez-Lopez
That
deportation before IIRI-
of
suspension
like
twice
than
essarily
illegally
entered
rather
RA,
judgment
“Congress’s
effects
“good
under the
once can be considered
length
likely
was
to
[extended]
of
of the
prong
moral character”
cancellation
to this
commitment
give rise to a sufficient
of
See
test.
of
establishment
roots
society through
1101(f)(8) (“The
1229b(b)(l)(B),
§§
fact
expectations for
plans and
development of
within
of the
any person is not
by the
justify
an examination
the future
preclude
classes
a find-
foregoing
shall
of the circumstances of
Attorney General
ing
is
person
that for. other reasons such
case to determine whether
particular
character.”).
good
My
not of
moral
unduly
would be
harsh.”
deportation
reading
imple-
of the INA thus leaves the
INS, 597 F.2d
Kamheangpatiyooth
1229b(d)(2)
mentation of section
to the
Cir.1979).
(9th
1253, 1256
resolution,
agency
case-by-case
while
reimposes
the panel’s interpretation
law, it is
immigration
of
pockets
Such
Congress
across-the-board exclusion that
true,
include counter-intuitive incentives
Cardoza-Fonseca,
U.S.
excised. See
States and to
illegally
come
(“The
legal
denial en banc. proceeding against by issuing Petitioner him Appear. a Notice to Petitioner OPINION promptly to applied cancel the removal CURIAM: PER proceeding. Immigration Judge (“IJ”) (“Petitioner”) Vasquez denied cancellation. The BIA Lopez Delfíno con- Immigration review of the Board of ducted a de novo review seeks and concluded (“BIA”) that his Appeals’ determination lacked years Petitioner the ten pursu- from departure the United States presence required to a grant ant to of administrative him make for cancellation of re- under what was then U.S.C. BIA moval. The held that Petitioner’s 1252(b)(4) (1994)1 occasioned a break voluntary departure to Mexico caused his “continuous break in his this coun- States” for of 8 purposes try. 1229b, removal the cancellation of BIA’s read- statute. conclude II. § 1229b is def-
ing of entitled to Chevron A. deny review. petition erence subject aWhen statute is to more
I. interpretation, than one courts will defer of the interpretation agency charged illegally claims that Petitioner he en- with the it. responsibility administering tered the United States in He ad- that, U.S.A., point period some Chevron Inc. v. Natural De during mits Res. Inc., Council, 837, 842-43, by from 1992 to he was arrested fense Attorney authority voluntarily 1. Prior United States at own his grant voluntary departures prior General expense deportation.” in lieu Since (deportation) pro- the initiation grant authority voluntary departure ceedings authority grant voluntary and his both single situations been set forth in a during departures pendency pro- such section, 1229c(a)(l), pro- 8 U.S.C. which ceedings was conferred two different stat- vides, part, Attorney that "[t]he relevant 1252(b)(4) (1994) provided utes. permit may voluntarily to General an alien that "in discretion of the General depart United States ... under this sub- relevant,] exceptions certain [with here section, being subject proceedings in lieu deportation proceedings ... need not be re- prior to [1229a of this title] *9 quired in the case of admits to alien who completion proceedings.” of such While belonging deport- to a class of aliens who are precise Attorney of terms General’s able under section 1251 of this if such an title statutory authority grant voluntary with- voluntarily departs alien from the United during period drawal varied have here 1254(e)(1) (1994) provid- States.” relevant, pursuant departures the character of ed, part, "Attorney relevant that Gener- voluntary departure grant to a of discretion, may, permit any al his alien changed. materially deportation proceedings depart ... (1984). 2778, extremely hardship” In unusual his 81 L.Ed.2d 104 S.Ct. circumstances, child, only whether who is a parent, we ask citizen “spouse, such interpretation is a reasonable lawfully an alien agency’s of the United States or 843, Chevron, at 104 S.Ct. permanent one. residence.” admitted I.N.S., 79 F.3d Yang 1229b(b)(l) (2002). v. Here, also 2778. See we are Cir.1996) (“In (9th face of 932, only first of these re- concerned with the silence, Congressional we ambiguity in the presence quirements- physical — considered agency’s defer should period States a continuous of judgment.”). years. ten BIA are by the
Decisions made
filed
for cancella-
petition
Petitioner
his
adjudications
to Chevron
entitled
agency
1990s,
early
tion of removal
1998. In the
otherwise
is
when deference
deference
granted
and
administra-
requested
he
was
(“[I]t is a
Yang, 79
at 936
F.3d
due. See
voluntary departure in lieu of having
tive
administrative
principle of
well-established
against
initiated
deportation proceedings
agency
to whom
that
law
him. The record does not disclose when
rule
between
may
discretion
elect
grants
Mexico, but it
Petitioner returned from
carry
adjudication
ad hoc
making and
presence
that if his
there constituted
clear
mandate.”);
Aguirre-
v.
out
its
I.N.S.
presence
physical
a break in his continuous
119 S.Ct.
Aguirre, 526 U.S.
States,
not have
in the United
he did
ten
(1999)
that “the
(stating
143 L.Ed.2d
applica-
years of such
when Ms
defer
BIA should be accorded Chevron
filed.
tion for
statutory terms
it gives ambiguous
ence as
time
existing
the law
at the
of
Under
process
a
meaning through
concrete
Mexico,
Petitioner’s
“vol
(internal
adjudication”)
quota
case-by-case
untary departure” under threat
coerced
omitted).
must also be
tion marks
We
deportation constituted a break
continu
“judicial
that
deference
mindful
presence.
so held
ous
Her
appropriate
is especially
Executive Branch
(9th
I.N.S.,
nandez-Luis v.
971 Otherwise, there return. would be no 1996 amendments: an administrative vol untary behind the procedure departure, reason which is effectuated in proceed- in lieu of departures deportation lieu of the institution of removal (deporta tion) original). Id. in con- ings.” proceedings, constitutes a break in that, given cluded this commitment to de- continuous presence. Since the and not return absent authorized part case, BIA’s decision in an this en banc BIA reentry departures proceedings, the could court has fully more articulated the ratio ignored be as and devoid of casual supporting nale in position In re Ro significance. malez-Alcaide, (BIA 23 I. N. Dec. & 423 2002)(en banc). acknowledges
The
here
Petitioner
Romalez-Alcaide,
the BIA
in
was con-
presence
that
break
his continuous
fronted with a
fact situation indistinguish-
occurred
the law as
existed at the
insists,
able from that
departure.
time of his
He
before us and with an
howev
iden-
1229b(d)(2)
er,
§
that
tical contention
Congress has since altered the
that
excuses
any absence of
applicable
argument
predicat
days
law. His
less than 90
as well as
on a
any
ed
subsection of the cancellation of
and
series of absences totaling less
(“the
adopted
Congress
days
removal statute
90/180-day
than
period”).
held,
which provides
part:
in relevant
case,
It
as the BIA did
that
1229b(d)(2)
(2)
§
did not excuse absences
pres-
Treatment of certain breaks in
re-
sulting from an administrative voluntary
ence
if
even their duration was short-
An
shall be considered to have
than
period.
er
the 90/180-day
faded to maintain
continuous
the United States -under
began
Romalez-Alcaide court
its
(b)(1)
(b)(2) if
subsections
the alien analysis by quoting the “continuous physi-
departed
has
from
States for
1229b(b)(l)
presence” requirement
§
cal
any period in
days
excess of 90
or for
by referencing
holding
I.N.S.
any periods in
aggregate exceeding
Phinpathya,
104 S.Ct.
days.
(1984),
al, departures.” innocent evi- this did not physical presence.” that deletion ous recognized pre- 1229b(d)(2). Moreover, to the Congressional § return the court con- a dence 1229b(d)(2) rule under which cluded, purport § absolute “does not to ceding constitutes a whatsoever absence physical all respecting depar- the exclusive rule be such break; contemplated had Congress if Rather, announces, it caption tures. as its for scheme, pointless it would have been the of ‘certain breaks’ addresses treatment beyond that absences it mandate to that strongly implying in there presence, constitute a period would 90/180-day than those can be breaks’ other which remain suggested that there This break. statutory day the 90 or limits.” exceed insignificant absences too to physical some Romalez-Alcaide, Dec. 23 I. & N. at 425 In the Romalez-Al- a break. constitute original). view, suggestion found caide court’s thus that for Having concluded absences 1229b(d)(2). § It text of support 90/180-day period than the can be less objective command that “[t]he noted that enough disqualify to significant certain ‘shall’ break lengths departures removal, the cancellation of court from presence implies that physical general, statutory scheme looked are ac- departures shorter some] least [at the nature of orders of removal Romalez-Alcaide, 23 I. & N. ceptable.” particular, specific to determine the issue at 426. Dec. it. It that order of explained “[a]n before suggestion that accepting the While an alien’s pres- removal intended to end insignifi- are too absences some Id. ence the United States.” at 426. break, Romalez- cant to constitute reason, clear For that it seemed to rejected pe- nevertheless Alcaide court court that did not intend for 1229b(d)(2) § argument that titioner’s departed pursuant who order aliens an exclusive standard provide intended of removal to be able to return within 90 in physical breaks judging for accrue days continue to and, departures that for accordingly, all physical presence. that administra- Given are ex- 90/180-day period less than were departures tive lieu of stat- pointed It first out that “[t]he cused. entry of proceedings removal and the such literally ... for- utory language does orders, it vol- followed administrative days or give any single untary departures should likewise be seen departures of 180 aggregate less or severing tie to the as alien’s only Id. at 425. It mandates less.” United States.2 who departed that an alien more day be con- The court period “shall concluded: than the 90/180 true, analysis. pointed concurring persuasive as out force of the BIA’s Its It is point that 8 U.S.C. is that is clear from the 1231(a)(5) depart who did not makes all aliens as scheme intend ineligible depart during a removal order for all aliens who were forced to the result of following discretionary proceeding true relief. It is also that the removal 1229b(d)(l) apply stop-time will have bro- to return and for cancellation remov- rule suggests strongly al ken continuous all 1229b(d)(2) voluntarily be construed in a depart after institu- should not aliens who Thus, proceedings. reading way put that would who were forced to aliens tion of 1229b(d)(2) position depart proceedings in a court to avoid such Romalez-Alcaide necessary catego- apply they prevent these for cancellation of removal if did is not managed get quickly i.e., during continuing physi- to accrue back ries of aliens — 90/180-day period. presence. But this does not diminish cal fact *12 would petitioners granted therefore believe it be con- here were administra- very deportation tive trary voluntary reason departure: orders, removal well as enforced as In the of discretion the Attorney Gener- to read section departures, al, and under regulations may such as he 240A(d)(2) preserving of the Act as the prescribe, deportation in- proceedings, physical presence acquired pri- of period arrest, cluding issuance of a warrant of departure or to enforced for an alien and a finding deportability of under this days of who returns within 90 the en- required need not be in the case forcement action. any of alien who admits to belonging a class of are un- deportable 427. aliens who Id. at der section 241 if such voluntarily alien court pointed out this conclu departs United the States at his Attorney sion was consistent with the Gen own expense, or is removed at Govern- reading of eral’s the statute reflected authorized, ment expense as hereinafter he regulations promulgated imple Attorney unless the General has reason Adjustment the Nicaraguan ment to believe that deportable such alien is Act, Central American Relief Pub.L. No. (2), (3), (4) paragraph under of section 105-100, 203(b), § 111 Stat. 241(a). (1997), 105-139, 11 by amended Pub.L. No. NACARA”). 1252(b)(4) (1997) (“ (1994)). (quoting Id. Stat. Section (2001) 240.64(b)(3) that, provides The court likened the proceedings under of context NACARA: this statute to a “plea bargain,” and then period physical presence reasoned: is terminated alien whenever is re- The alien knowledge leaves with the moved from the States United under an he being does so in lieu of placed issued pursuant provision order proceedings. objective The clear anof of the Act or the has voluntarily departure enforced is to an ille- remove departed deportation the threat gal alien from States. There or when the is pur- made for expectation is no legitimate either poses committing an unlawful act. parties that an alien illegally could 240.64(b)(3). period reenter and resume a 8 C.F.R. of continu- ous physical presence. provisions Given that the statutory argu- ably Id. relevant the issue the context of materially were
NACARA
different We conclude that
the BIA’s
from those
applicable
otherwise
and the Attorney
reading
General’s
of the statute
fact that NACARA
intended to
benefit
one,
worthy
is
reasonable
of our defer-
scope,
those aliens within its
the court
Indeed,
analysis
ence.
we find this
understandably
that it
concluded
was “not
persuasive
BIA
and its conclusion com-
apparent how
could find the respon-
[it]
by the
pelled
view of
nature of volun-
dent
tary departure
we
which
articulated
adopting
without
a construction of the stat-
Barragam-Sanchez.
Hemandez-Luis
directly
posi-
ute that
at odds with the
addition,
we believe the conclusion is
adopted by
tion
General
8 supported by
underlying
the rationale
240.64(b)(3).” Romalez-Alcaide,
C.F.R.
contemporaneously
adopted,
so-called
N.
23 I. & Dee. at 428.
“stop
provisions
time”
of the subsection
1229b(d)(2).
Finally,
quoted
immediately
the court
un-
preceding
statute
(d)(1)
the respondent
der which
there and
provides:
the Subsection
entry process applicable to
dance with the
(1)
period
of continuous
Termination
not unreasonable for
all aliens. It was
section, any peri-
For purposes
departure un-
to regard
BIA
Petitioner’s
od of ...
*13
as
break
der these circumstances
shall
be deemed
States
the United
presence in the
case
alien continuum of his
(A)
of an
except
end
Indeed,
regard
cancellation of removal
him as
United States.
applies
who
(b)(2)
section,
this
having
under subsection
maintained his
is served a notice
the alien
when
with the
would be inconsistent
1229(a)
title,
appear under
general
concept
(B)
alien
committed
or
when the
provisions of
“stop
with
time”
1182(a)(2)
to in section
referred
offense
1229b(d)(l)
particular.
alien inad-
that renders the
of this title
BIA’s
will
reasonable
defer
States under sec-
to the United
missible
Aguirre-
the statute.
interpretation of
1182(a)(2)
this title or removable
tion
1439;
425, 119
Aguirre,
S.Ct.
under section
States
from the United
Yang,
under the statute is Attorney Gen
with permission Un proceedings. removal
eral in lieu of (d)(1) statute of the removal
der subsection amended, any period
as as soon ends Thus, under are instituted. proceedings SHARBER, Plaintiff-Appellant, Steven in removal provision, time” those “stop v. immediately accrue cease to proceedings entitle to dis “presence” might them SPIRIT MOUNTAIN GAMING Pondoc See Hernaez cretionary relief. INC., Defendant-Appellee. (9th Cir.2001). I.N.S., 752, 758 F.3d No. 01-35500. some incentives provides While statute voluntary depar apply to an Appeals, United States Court removal proceedings ture thus avoid Ninth Circuit. removal, there nothing suggests Nov. Argued and Submitted departure in or commits to alien who proceedings neverthe der to avoid such 15, 2003. May Decided “pres accruing less entitled to continue Redesignated Publication ence” for other as to become so 4, 2003. Sept. discretionary relief. physically present Petitioner was he while in Mexico. United States casual, in-advertent,
That absence was lacking significance. Rath- otherwise
er, it to an pursuant agreement occurred and the Gen-
between Petitioner
eral de- agreed under which Petitioner
part and not to return other than in accor-