Ascencio-Rodriguez v. Holder

• Decision Date: 17 February 2010
• Docket Number: Docket No. 08-3058-ag.
• Parties: Jesus ASCENCIO-RODRIGUEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

595 F.3d 105

Jesus ASCENCIO-RODRIGUEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States,^* Respondent.

Docket No. 08-3058-ag.

United States Court of Appeals, Second Circuit.

Argued: May 8, 2009.

Decided: February 17, 2010.

Robert C. Ross, West Haven, CT, for Petitioner Jesus Ascencio-Rodriguez.

Christina Bechak Parascandola, 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.

Before WALKER,^** CABRANES, and WALLACE,^*** Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Jesus Ascencio-Rodriguez ("Ascencio-Rodriguez" or "petitioner") seeks review of a May 22, 2008 decision of 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 the 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 8 U.S.C. § 1229b(b). Whether a conviction for illegal entry is a "formal, documented process" pursuant to which an alien is determined to be inadmissible, see In re Avilez-Nava, 23 I. & N. Dec. 799, 801 (B.I.A. 2005)(en banc)—and, if so, whether such a process interrupts an alien's continuous physical presence in the United States— are issues of first impression in this Circuit. We conclude that petitioner's conviction and subsequent return to Mexico did interrupt his continuous physical presence and therefore the BIA properly concluded that he is ineligible for cancellation of removal.

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 8 U.S.C. § 1325(a)(1).¹ He appeared before a magistrate judge in the United States District Court for the Southern District of Texas (the "District Court"), and the record shows that he waived his right to counsel and pleaded guilty to illegal entry. Petitioner also signed a separate "Notice of Rights and Request for Disposition" form on that same day. That document advised petitioner that he had the right to a hearing before the Immigration Court or, in the alternative, the right to return to Mexico without a hearing. Petitioner checked the box on that form requesting a hearing before the Immigration Court but a hearing was never conducted. A Notice to Appear was also prepared on February 20, 2001, although it does not appear to have been filed with the Immigration Court and the parties dispute whether it was ever served on Ascencio-Rodriguez.

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' imprisonment, but the judgment also states that the "execution" of the sentence was suspended and that AscencioRodriguez 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 8 U.S.C. § 1182(a)(6)(A)(i)² as an alien present without being admitted or paroled, and under 8 U.S.C. § 1182(a)(7)(B)(i)(II)³ as a nonimmigrant who was not in possession of a valid visa or border crossing card at the time of application for admission. Petitioner appeared before an IJ three different times in late 2005 and early 2006 and on April 20, 2006, petitioner stated that he would seek "cancellation of removal" under 8 U.S.C. § 1229b(b)(1).⁴ Petitioner subsequently submitted an application and supporting documents.

On November 3, 2006, petitioner appeared before the IJ for a hearing on the merits of his application for cancellation of removal. The IJ issued an oral opinion that same day, in which he 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 8 U.S.C. § 1229b(b)(1)(A).

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 § 1229b(b)(1)(A). Second, the IJ found that petitioner's continuous physical presence was interrupted after his arrest at the border in mid-February 2001 because it resulted in a process by which he was determined to be inadmissible to the United States.

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 could 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, 511 F.3d 102, 105 (2d Cir.2007). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (emphases added). We review de novo questions of law and applications of law to undisputed fact. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 277 (2d Cir.2007).

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 8 U.S.C. § 1229b(b). See note 4, ante. To be eligible for cancellation of removal under this subsection, an alien must, inter alia, have been "physically present in the United States for a continuous period of not less than 10 years" prior to seeking cancellation of removal. 8 U.S.C. § 1229b(b)(1)(A). Despite the statute's requirement of "continuous" physical presence, short breaks in "continuity" do not render an alien ineligible for cancellation. See 8 U.S.C. § 1229b(d) (explaining that a single departure in excess of 90 days, or multiple departures exceeding 180 days in the aggregate, break an alien's continuous physical presence). The cancellation statute also provides that "any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when the alien is served a notice to appear under [8 U.S.C. § 1229(a)], or (B) when the alien has committed an offense referred to in [8 U.S.C. § 1182(a)(2)]⁵ that renders the alien inadmissible to the United States." 8 U.S.C. § 1229b(d)(1).

In addition to the conditions...