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The Board of Immigration Appeals has issued a precedent
decision concerning the requirement of ten years' continuous physical
presence for the relief of cancellation of removal for non-lawful
permanent residents. The BIA previously has found that a voluntary
departure under the threat of deportation or removal proceedings ends
the accumulation of continuous physical presence. Matter of Romales,
23 I. & N. Dec. 423 (BIA 2002). The new decision is important because
it limits the application of the Romales ruling.
The respondent in this case, Guadalupe Avilez-Nava,
is a Mexican national who first entered the U.S. in 1986 and has two
U.S. citizen children, ages 12 and 2. She was placed in removal
proceedings in 2001 and applied for non-LPR cancellation of removal. At
her hearing, she testified that in Jan. 1993 she had returned to Mexico
to help her mother after the death of her grandmother. Two weeks after
that departure, she attempted to reenter the U.S. at the San Ysidro port
of entry. She was stopped and questioned by immigration authorities and
admitted that she did not have entry documents. She testified that the
authorities told her that she could not enter the U.S. and that they
escorted her to a door through which she was returned to Mexico. She
reentered the U.S. two days later, without inspection. The Dept. of
Homeland Security (DHS) did not offer any evidence to indicate that
Avilez-Nava had been formally excluded, allowed to withdraw an
application for admission, granted voluntary departure in lieu of
deportation proceedings, or otherwise subjected to any formal,
documented process for determining her inadmissibility to the U.S. The
immigration judge found that Avilez-Nava did not meet the continuous
physical presence requirement, and she appealed the IJ's ruling.
In sustaining the appeal, the BIA first
summarized the relevant law. To be eligible for the relief of
cancellation of removal, a non-U.S. citizen who is not an LPR must
establish, among other requirements, that he or she has continuously
resided in the U.S. for at least ten years prior to applying for the
relief. The statute provides that the accrual of continuous presence
ends when the noncitizen is served with a notice to appear for removal
proceedings or commits an offense that makes the individual inadmissible
or removable. Sec. 240A(d)(1) of the Immigration and Nationality Act.
The statute also provides that a departure for a period in excess of 90
days, or a series of departures for an aggregate period exceeding 180
days, ends the accrual of continuous physical presence. INA sec.
240A(d)(2). And in Romales, the BIA concluded that even where a
noncitizen's departure is within the above-described time limits, the
accrual of continuous physical presence ends when the individual is
compelled to depart the U.S. under a grant of voluntary departure where
otherwise he or she would face deportation or removal proceedings.
The BIA noted that its ruling in Romales
has been upheld in the Fifth, Eighth, and Ninth Circuit Courts of
Appeal. However, the BIA also noted that several appellate rulings have
found that the accrual of continuous presence is not ended by departures
effected by immigration authorities in some circumstances, citing
Ortiz-Cornejo v. Gonzalez, 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 an
apprehension and return by the Border Patrol was not a
"presence-breaking voluntary departure" where there was no evidence the
respondent was informed of and accepted the terms); Morales-Morales
v. Ashcroft, 384 F.3d 418 (7th Cir. 2004) (finding Romales
not applicable in the absence of evidence that the respondent knew she
was departing in lieu of being placed in proceedings).
Turning to the case before it, the BIA noted
that its prior precedent decisions do not address the treatment of a
departure at a port of entry that is neither an exclusion nor a
withdrawal of an application for admission, but simply a departure from
a port of entry. The BIA concluded that this situation is similar to
the circumstances of the cases where courts of appeal have declined to
apply Romales. The BIA noted that in this case "the respondent
was not made aware of the opportunity for exclusion proceedings," and
there was "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." In conclusion,
the BIA 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 pursuant to which the alien was determined to be
inadmissible to the United States."
The ruling is particularly likely to be
relevant in cases of noncitizens who were stopped and removed from the
country prior to the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. As the BIA noted, since the
enactment of the IIRIRA, procedures at the border have changed and there
is "a greater likelihood that refusals of admission will be better
documented than in the past."
In re Avilez-Nava, 23 I. &
N. Dec. 799, Int. Dec. 3517 (BIA 2005).
—By
Linton Joaquin, NILC
executive director
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