CELIA MORALES-MORALES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.
No. 02-3936
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 16, 2003—DECIDED SEPTEMBER 15, 2004
Petition for Review of an Order of the Board of Immigration Appeals. No. A77-459-612
DIANE P. WOOD, Circuit Judge. Celia Morales-Morales (Morales) is a Mexican citizen who has resided in the United States since her original entry without inspection in 1986. After briefly returning to Mexico to attend to her gravely ill mother, Morales repeatedly and unsuccessfully attempted to reenter the United States in March 1999. Ultimately, she was arrested and convicted for the latter attempt. Upon Morales‘s release from imprisonment, the Immigration and Naturalization Service (INS)1 initiated removal proceedings, and Morales in turn applied for cancellation of removal. The Immigration Judge (IJ) ruled that Morales‘s brief absence from the country rendered her ineligible under the statute for cancellation of removal, and on that ground only, rejected her petition. The Board of Immigration Appeals (BIA) affirmed without opinion under its streamlining procedure. Because we conclude that the statute did not preclude this relief for Morales, we grant her petition for review and remand for further proceedings.
I
Morales first entered the United States without inspection (i.e., illegally) in June 1986 at age 16. She is married to a lawful permanent resident of the United States and is the mother of four U.S. citizen children, ranging in age from nine to 16 years old. As far as this record shows, Morales remained in the United States from the time of her entry until early March 1999, when she returned to Mexico to visit her ailing mother. On March 22, 1999, after about two weeks in Mexico, Morales reentered the United States without inspection. The U.S. Border Patrol promptly detained her informally, and she voluntarily returned to Mexico. These events repeated themselves on three more occasions over the course of six days. Morales testified that each time the Border Patrol “just took me, threw me around, and turned me back.” Importantly, she never appeared before an immigration judge, and no removal proceedings were initiated. On March 31, 1999, the U.S. Border Patrol apprehended Morales as she entered the country without inspection for the fifth time. This time the authorities took matters more seriously. Morales was charged with, and pleaded guilty to, illegal entry in violation of
Upon completion of her sentence, Morales was released into the custody of the INS, which initiated removal proceedings. Shortly thereafter, Morales applied for cancellation of removal under
Before we reach the merits of Morales‘s appeal, we must address several preliminary matters. The first concerns this court‘s jurisdiction over her petition for review. We have an independent obligation to ensure that subject matter jurisdiction is proper before proceeding to the merits, even where, as here, neither of the parties has raised this as an issue in the case. Smith v. Am. Gen. Life & Acc. Ins. Co., 337 F.3d 888, 892 (7th Cir. 2003). The governing statute is
(B) Denials of discretionary relief
Notwithstanding any other provision of law, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(I), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.
Section 1229b, which is included in the list in part (i), governs cancellation of removal. The question before us is whether this statute was intended to preclude all judicial review whatsoever, or only judicial review of the way in which the Attorney General exercises his discretion. At first blush, the language of the statute appears to be quite broad: read literally, it would preclude judicial review even of a decision by the Attorney General to deny cancellation of removal to all Muslims, or a decision by the Attorney General to eliminate this form of relief from the statute altogether. In other areas of immigration law, however, courts have resisted such an extreme position. Instead, relying on the proposition that at a minimum, jurisdiction to determine jurisdiction exists, see Jideonwo v. INS, 224 F.3d 692, 696 (7th Cir. 2000), courts have exercised the authority to decide whether the particular alien‘s claim falls within the scope of the jurisdiction-stripping statute. See, e.g., Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997) (deciding whether the alien had committed one of the enumerated crimes that leads to automatic, and unreviewable, removal from the United States).
Although it is true that Morales ultimately wants cancellation of removal, that is not the relief she is seeking before this court—for good reason, as we have no power to grant that relief. Instead, she seeks to have the Attorney General consider her petition for cancellation of removal under the correct interpretation of the eligibility requirements set forth in
Although our conclusion that
We have taken the same approach to the very next subsection of the statute,
Our conclusion is also consistent with the decisions of the other circuits that have already confronted the question before us, namely, whether the determination that an alien has established continuous physical presence for purposes of
We find this analysis persuasive and join our sister circuits in holding that the meaning of the term “continuous physical presence” is a non-discretionary question of statutory interpretation. As such, it falls outside
III
Before answering this question, we offer a brief comment on the procedural posture of this case. As noted above, the BIA gave this case only streamlined review. The BIA‘s streamlining procedure set out in
Streamlining has its institutional costs, however, and it seems that they were incurred in this case. Unfortunately, the procedural short cut the Board took may have caused it to overlook the IJ‘s reliance on a defunct legal principle and one of its own intervening decisions. We do not know that, of course, because the thinking of the responsible BIA member is entirely opaque. We turn perforce to the IJ‘s opinion, which offers the rationale for the decision that the agency must now defend.
IV
A
The statute governing cancellation of removal is
(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) has not been convicted of [certain enumerated offenses]; 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.
The statute goes on to specify “special rules relating to continuous residence of physical presence” in
(2) Treatment of certain breaks in presence
An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.
Morales‘s petition for cancellation of removal required the IJ to determine whether, for purposes of
In reaching this result, the IJ relied on the superseded “Fleuti doctrine,” under which an alien‘s “innocent, casual, and brief” departure from this country was not a break in physical presence, see Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir. 2003), whereas when an alien left the United States “for a reason that is inconsistent with the policies reflected in this country‘s immigration laws, the ‘interruption of residence thereby occurring would properly be regarded as meaningful.’ ” Selimi v. INS, 312 F.3d 854, 859 (7th Cir. 2002) (quoting Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963)). The IJ reasoned that “[i]n light of the ambiguity in the heading” of
The IJ‘s analysis fails to take into account the fact that the Fleuti doctrine was superceded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (IIRIRA). See Tapia, 351 F.3d at 799; In re Collado, 21 I. & N. Dec. 1061, 1065 (BIA 1998) (“Thus, we find that the Fleuti doctrine . . . does not survive the enactment of the IIRIRA as a judicial doctrine.“). Under the IIRIRA, “[t]he physical presence requirement[ ] . . . does not include the ‘innocent, casual, and brief’ standard, and instead opts for a quantitative standard—any absence outside the country for more than 90 days at a time, or 180 days in total, breaks the physical presence requirement.” Tapia, 351 F.3d at 799 (emphasis added); Collado, 21 I. & N. Dec. at 1064 n.4 (noting that the “previous use of the ‘brief, casual, and innocent’ concept . . . was not carried forward by Congress in the IIRIRA‘s new cancellation of removal provisions.“). Before this court, the government has acknowledged that the IJ erred in relying on the Fleuti doctrine. It is also clear from the facts that Morales was nowhere near either the 90-day or the 180-day period established by the statute. We see no warrant for the IJ to read this statute as establishing only a maximum
The government has attempted to salvage the IJ‘s result—though not his reading of the statute—by arguing that this was a harmless error in light of the BIA‘s subsequent decision in In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002). Romalez, which was decided after the IJ‘s decision in Morales‘s case but before the BIA‘s summary affirmance, holds that “a departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of”
Romalez helps the government, however, only if it applies to Morales‘s situation. As we explain in more detail below, it does not. Furthermore, this is a theory that is entirely absent from the IJ‘s opinion, and thus we have no reason to think that the IJ or the BIA would have extended Romalez to Morales‘s distinctly different circumstances. While government counsel may think that there is a good reason to do so, a lawyer‘s arguments cannot substitute for a reasoned opinion by the IJ or BIA. See Mengistu v. Ashcroft, 355 F.3d 1044, 1046 (7th Cir. 2004) (reiterating that the Chenery doctrine “forbids the lawyers for an administrative agency to defend the agency‘s decision on a ground different from that stated or at least discernible in the decision itself“); Florida Power & Light Co. v. F.E.R.C., 85 F.3d 684, 689 (D.C. Cir. 1996) (“[The agency‘s] counsel raises various arguments not mentioned within or even implied by the orders on review. But the agency runs this regulatory program, not its lawyers; parties are entitled to the agency‘s analysis of its proposal, not post hoc salvage operations of counsel.“).
B
We turn then to Romalez, in which the BIA held that voluntary departure under threat of deportation or removal proceedings constitutes a break in continuous physical presence. The record contains no evidence that any of Morales‘s voluntary departures occurred under that kind of threat. Instead, she was simply returned to the border.
In Romalez, the BIA considered an application for cancellation of removal submitted by a Mexican citizen who unlawfully entered the United States in 1984. Romalez, 23 I. & N. Dec. at 423. Romalez departed in 1993 and again in 1994 “under threat of deportation,” but each time remained in Mexico for only one or two days before unlawfully returning to the United States. Id. After Romalez was charged with removability, he applied for cancellation of removal. Id. at 424. The BIA found Romalez ineligible for cancellation of removal because “a departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of”
The BIA‘s analysis makes clear that its holding in Romalez applies only to aliens who accept voluntary departure under threat of deportation or removal proceedings. As the government recognizes in its brief before this court, “voluntary
In Romalez, the BIA explained that voluntary departure operates “like a plea bargain,” in that “[t]he alien leaves with the knowledge that he does so in lieu of being placed in proceedings. . . . There is no legitimate expectation by either of the parties that an alien could illegally reenter and resume a period of continuous physical presence.” 23 I. & N. Dec. at 429. Because “an order of removal is intended to end an alien‘s presence in the United States,” the BIA “believe[d] it would be contrary to the very reason for departure and removal orders, as well as enforced voluntary departures, to read section [
The BIA further observed that this result is consistent with the Attorney General‘s regulations implementing the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, § 203(b), 111 Stat. 2193, 2198 (1997), amended by Pub. L. No. 105-139, 11 Stat. 2644 (1997) (NACARA). These regulations provide that “a period of continuous physical presence is terminated whenever an alien is removed from the United States under an order issued pursuant to any provision of the Act or the alien has voluntarily departed under the threat of deportation . . . .”
The three other circuits that have considered Romalez have likewise done so only in the context of aliens who voluntarily departed under threat of deportation or removal proceedings. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 969 (9th Cir. 2003), the Ninth Circuit held that Romalez governed its review of the BIA‘s “determination that [the petitioner‘s] departure from the United States pursuant to a grant of administrative voluntary departure . . . occasioned a break in his ‘continuous physical presence in the United States.’ ” Id. at 969. The court emphasized that an administrative “voluntary departure” occurs “pursuant to an agreement between Petitioner and the Attorney General under which Petitioner agreed to depart and not to return other than in accordance with the entry process applicable to all aliens.” Id. at 974. The court thus found persuasive the BIA‘s conclusion in Romalez that as “administrative voluntary departures [are] in lieu of removal proceedings . . . , it follow[s] that administrative voluntary departures should likewise be seen as severing the alien‘s physical tie to the United States.” Id. at 972.
We have no quarrel with Romalez‘s rule that voluntary departure under threat of deportation or removal proceedings—also referred to by the BIA as “departures made under threat of the institution of deportation proceedings“—constitutes a break in continuous physical presence for purposes of
There is a significant difference between Morales‘s account of the Border Patrol simply turning her back at the border and voluntary departure under threat of removal proceedings. Under the BIA‘s own regulations, “voluntary departure shall be communicated in writing” and “may not be granted unless the alien requests voluntary departure and agrees to its terms and conditions.”
None of
Given the stakes associated with voluntary departure, including both the penalties provided for in
Before concluding, we consider one more possibility, although this was not fully developed by the government and thus would not be a proper ground for denying the petition in any event. Perhaps one might say that Morales was not “in” the United States at all at the time of these proceedings, because she was at last stopped at the border and prosecuted for her final effort at entry. See, e.g., Zadvydas v. United States, 533 U.S. 678, 693 (2001). But that argument proves too much for the statute we are considering. No one who needs to invoke
We therefore remand to the BIA to determine Morales‘s eligibility for cancellation of removal. On the record as it stands, it appears that Morales has satisfied the continuous physical presence requirement. If, however, additional evidence regarding this issue is available, both sides are entitled to present such evidence on remand. Finally, as an aside, we note that the IJ in this case stated that “the respondent in this case will most likely be able to meet the exceptional and extremely unusual hardship factors” for cancellation of removal, but he refrained from deciding the issue in light of his finding that Morales had not established continuous physical presence.
V
For the reasons stated above, we GRANT Morales‘s petition for review and REMAND
A true Copy:
Teste:
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—9-15-04