Barrera–Quintero v. Holder

• Decision Date: 15 November 2012
• Docket Number: No. 11–9522.,11–9522.
• Citation: 699 F.3d 1239
• Parties: Hector BARRERA–QUINTERO, a/k/a Hector Barrera Quintero, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

699 F.3d 1239

Hector BARRERA–QUINTERO, a/k/a Hector Barrera Quintero, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 11–9522.

United States Court of Appeals,Tenth Circuit.

Nov. 15, 2012.

Edward L. Carter, Keen Law Offices, LLC, Orem, UT (J. Christopher Keen, Keen Law Offices, LLC, Orem, UT, with him on the brief), for Petitioner.

Walter Bocchini, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C. (Tony West, Assistant Attorney General, and Janice K. Redfern, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., with him on the brief), for Respondent.

Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.

HOLLOWAY, Circuit Judge.

INTRODUCTORY STATEMENT

Hector Barrera–Quintero, a native and citizen of Mexico, faces removal from this country. He seeks review of a Board of Immigration Appeals (BIA) decision finding him ineligible for cancellation of removal. Because Congress tightly constrains our power to review discretionary aspects of the BIA's orders of removal, we must DISMISS IN PART his petition for lack of jurisdiction. But we are not similarly limited in our review of constitutional claims and questions of law involving statutory construction. In this case, Mr. Barrera's ¹ eligibility for cancellation of removal hinges on whether he has maintained at least ten years of continuous physical presence in this country, as required by the terms of 8 U.S.C. § 1229b(b)(1)(A). Because the BIA relied on a reasonable statutory construction in finding Mr. Barrera failed to satisfy the continuous-presence requirement, we DENY the remainder of the petition for review.

I. BACKGROUND

A. Facts

Mr. Barrera was born in the state of Jalisco, Mexico, in 1974. He entered the United States in May of 1990 without inspection or authorization by an immigration officer. To put it more bluntly, Mr. Barrera came to this country illegally. With the exception of a two-month span in 2004, he has lived here since his 1990 arrival. Mr. Barrera initially settled in southern California. In 1993, he pleaded nolo contendere to willful infliction of corporal injury on a spouse, a violation of California Penal Code § 273.5(a). He was sentenced to a term of probation and community service. That same year, his son—a United States citizen—was born. Over the next ten years, Mr. Barrera worked as a carpenter and carpet layer in various California cities before making his way to Utah.

On June 1, 2004, Mr. Barrera was arrested at a Utah Driver License Division office in St. George, Utah after being found with a fake Social Security card. He pleaded guilty to violating Utah Code Ann. § 76–8–511, which prohibits the falsification or alteration of government records. Following his conviction, immigration officials took Mr. Barrera into custody and presented him with a single-page Spanish-language document known as a Form I–826. The document stated that immigration officers believed he was in the United States illegally and advised him of his right to a hearing before the Immigration Court. The document then instructed Mr. Barrera to elect one of three options, the selection of which he was to indicate by checking a box and initialing next to his choice. He could (1) ask for a hearing before the Immigration Court to determine his admissibility; (2) seek an asylum hearing; or (3) acknowledge he was in the United States illegally, waive his right to a hearing, and request return to Mexico.

Mr. Barrera chose the third option: voluntary return to Mexico in lieu of a hearing on admissibility. He signed and dated the Form I–826 and inscribed a check mark and his initials next to the section stating, in relevant part, “I admit that I am in the United States illegally, and I believe I do not face harm if I return to my country. I give up my right to a hearing before the Immigration Court. I wish to return to my country....” R. at 473.² On June 10, 2004, Mr. Barrera returned to Mexico, crossing the border at the San Ysidro, California port of entry.

He likely reentered the United States on or around August 15, 2004, some sixty-six days later.³ As was the case in 1990, no immigration officer authorized Mr. Barrera's entry. In March of 2007, he was again arrested in Utah for attempting to obtain a driver's license using fraudulent documents. This time, immigration officials served him with a Notice to Appear, a document charging him as an alien illegally present in the United States and subject to removal from this country under 8 U.S.C. § 1182(a)(6)(A)(i).

B. Proceedings Before the Immigration Judge

Conceding that he was unlawfully present in the United States and thus removable as charged in the Notice to Appear, Mr. Barrera applied for cancellation of removal under 8 U.S.C. § 1229b. The Attorney General has discretionary authority to cancel the removal of a nonlawful resident who

(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 an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); 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.

8 U.S.C. § 1229b(b)(1). The Government moved to pretermit Mr. Barrera's application, arguing that his voluntary return to Mexico in 2004 broke his continuous physical presence in the United States under the standards articulated by the BIA in In re Romalez–Alcaide, 23 I. & N. Dec. 423 (B.I.A.2002), and In re Avilez–Nava, 23 I. & N. Dec. 799 (B.I.A.2005). Romalez–Alcaide and Avilez–Nava, the definitive BIA cases outlining the parameters of § 1229b(b)(1)(A)'s continuous-presence requirement, hold that a nonlawful resident's continuous physical presence ends when he voluntarily departs the United States under threat of removal proceedings. The Government contended that Mr. Barrera's 2004 departure fell squarely within the rule of Romalez–Alcaide and Avilez–Nava, thus depriving him of eligibility for cancellation of removal as a matter of law.

Mr. Barrera countered that immigration officers did not inform him of his rights while in their custody in 2004. For this reason, he argues, his “voluntary return” to Mexico was not voluntary at all. As such, it would not count as a presence-breaking departure from the United States for purposes of calculating his continuous physical presence in this country under § 1229b(b)(1)(A). Mr. Barrera stated that the immigration officers “seemed very rushed,” did not in any way explain his rights to him, and told him he “had two choices, either to stay in jail, or be deported to Mexico.” R. at 478. Mr. Barrera alleged that the immigration officer who presented him with the Spanish-language Form I–826 merely “checked off on the lines where [he] was supposed to sign,” leaving him “unaware of the contents of the document.” Id. Mr. Barrera further claimed that the Form I–826 and other supporting documentation contained various errors, misstatements, and omissions.

Mr. Barrera also filed a motion seeking to compel the in-person testimony of the immigration officer who prepared and signed his 2004 departure paperwork, Rexall Griggs. The Immigration Judge did not directly rule on Mr. Barrera's motion. Instead, the Immigration Judge deemed the motion moot because the Government had made Officer Griggs available to testify by telephone. The Immigration Judge determined this would give Mr. Barrera an adequate opportunity for cross-examination of Officer Griggs.

The Immigration Judge found Mr. Barrera ineligible for cancellation of removal on two independent grounds. First, the Immigration Judge concluded that Mr. Barrera's 2004 departure had broken the requisite ten years' worth of continuous physical presence in the United States immediately preceding the date of his cancellation application. Second, the Immigration Judge determined that Mr. Barrera's California and Utah convictions were both for crimes involving moral turpitude, a type of offense listed under § 1182(a)(2). A conviction of a crime involving moral turpitude forecloses eligibility for cancellation under § 1229b(1)(C).

C. The BIA's Order

Mr. Barrera appealed the decision of the Immigration Judge to the BIA. Relying on its precedent in Romalez–Alcaide and Avilez–Nava, the BIA affirmed the Immigration Judge's determination that Mr. Barrera's 2004 departure under threat of the institution of removal proceedings ended his unbroken accrual of continuous physical presence in the United States. Finding next that Mr. Barrera's 1993 California conviction was for a crime involving moral turpitude (it did not reach the matter of his Utah conviction), the BIA dismissed his appeal in a single-member-issued opinion. In sum, the BIA held that Mr. Barrera was removable from the United States as charged and not eligible for cancellation of removal.

II. DISCUSSION

A. Jurisdiction, Deference, and Standard of Review

A jurisdictional inquiry stands at the threshold of our review of a cancellation-of-removal case. See Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147 (10th Cir.2005). This is because Congress has chosen to curtail judicial review of orders of removal. By statute, no court has jurisdiction to review “any judgment regarding the granting of relief under section ... 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i). But this language does not sweep so broadly as it might seem, for “[w]e have construed the term ‘judgment’ in this subsection as referring to the discretionary aspects of a decision concerning cancellation of removal,” including any “underlying factual determinations.”...