Cuellar Lopez v. Gonzales, 04-2959.

• Decision Date: 26 October 2005
• Docket Number: No. 04-2959.,04-2959.
• Citation: 427 F.3d 492
• Parties: Maria Dolores CUELLAR LOPEZ, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

427 F.3d 492

Maria Dolores CUELLAR LOPEZ, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 04-2959.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2005.

Decided October 26, 2005.

Charles Roth (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Jocelyn Wright (argued), Song Park, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and BAUER and WOOD, Circuit Judges.

WOOD, Circuit Judge.

After living in the United States continuously since 1982, Maria Dolores Cuellar Lopez (Cuellar) left the country with her youngest child, leaving her three other children in a friend's care, so that she could visit Mexico to find the father of her youngest child. She found him and discovered that he had another family living in Mexico. After staying in Mexico for about ten days, she flew back to the United States. At the Houston airport, immigration officials stopped her and she presented a false U.S. birth certificate to document her immigration status. The officials spotted the fraud, but they allowed her into the country under humanitarian parole because of her three minor children. At the same time, they issued her a Notice to Appear for removal proceedings.

Cuellar conceded removability and applied for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b). After a hearing, the Immigration Judge (IJ) denied her application on two grounds. First, he found that she was unable to meet the statutory requirement of being "physically present" in the U.S. for ten years because of her attempted unlawful entry. Second, he found that she lacked "good moral character" because of her unlawful reentry, and thus she was statutorily barred from cancellation of removal under INA § 101(f)(3), 8 U.S.C. § 1101(f)(3). Alternatively, even if not statutorily barred, the IJ found that as a matter of discretion her application should be denied for lack of good moral character. The Board of Immigration Appeals (BIA) affirmed the IJ's decision without an opinion. See 8 C.F.R. § 1003.1(e)(4).

Unfortunately, because the BIA streamlined this case, we do not know on what grounds it affirmed the IJ's decision, which turns out to be critical to determining whether we have jurisdiction to decide this appeal. We have held that an IJ's interpretation of the term "`continuous physical presence' raises a non-discretionary question of statutory interpretation. As such, it falls outside § 1252(a)(2)(B)'s jurisdiction stripping rule." Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th Cir.2004). Both parties concede, however, that the IJ's determination that Cuellar lacks good moral character is a discretionary decision and therefore it is beyond our review. See 8 U.S.C. § 1252(a)(2)(B)(i) ("[N]o court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b [cancellation of removal]."). If the BIA saw no flaw in the IJ's discretionary ruling, then Cuellar has no further recourse in this court. If, however, it thought that the result reached by the IJ was correct because Cuellar was statutorily barred from cancellation as a result of the continuous physical presence finding and believed it unnecessary to reach the question whether the IJ had abused his discretion in finding lack of good moral character, we have jurisdiction to review the interpretive question. Under the circumstances, we have concluded that we must remand this case to the BIA, so that it may indicate the basis for its conclusion.

I

On May 8, 2002, Cuellar appeared for her removal hearing before the IJ. After the hearing, the IJ issued an oral opinion ordering removal and denying cancellation of removal, finding that she had not satisfied the first two requirements for cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which requires that the petitioner:

(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.

First, the IJ found that Cuellar's attempted unlawful entry after her 10-day visit in Mexico ending January 5, 2000, constituted a break in the 10-year period of physical presence required by § 1229b(b)(1)(A). The IJ considered the statutory rules governing certain breaks in physical presence, which specify that:

[a]n 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.

8 U.S.C. § 1229b(d)(2); INA § 240A(d)(2). Notwithstanding this 90-day requirement, however, the IJ determined that Cuellar's 10-day trip constituted a break in physical presence. In reaching this conclusion, the IJ relied on the BIA's decision in In re Romalez-Alcaide, 23 I & N Dec. 423 (BIA 2002), which found that a voluntary departure under the threat of deportation or removal proceedings can constitute a break in the physical presence requirement of § 1229b(b), even if the break was less than 90 days. The IJ found that the BIA's rationale in Romalez-Alcaide supported his finding that other breaks that were less than 90 days could also constitute a break in physical presence.

In addition, the IJ found that Cuellar was ineligible for cancellation of removal because she fell as a matter of law under one of the categories in INA § 101(f)(3), 8 U.S.C. § 1101(f)(3), which precludes a finding of "good moral character." The IJ explained that because she had admitted to "committing a crime involving moral turpitude by presenting a false birth certificate" she could have been prosecuted under 18 U.S.C. § 1015(e), which is a felony offense. Based on this admission, the IJ found that she was "an alien, who admit[ed] the[] essential elements of a crime involving moral turpitude, [and was therefore] inadmissible under Section 212(a)(2)(A)(i)(I)." Because the IJ determined that Cuellar could be found inadmissible under § 212(a), he concluded that § 101(f)(3) statutorily barred him from finding she was a person of "good moral character."

In the alternative, the IJ found that "[e]ven if the respondent is not statutorily barred from showing good moral character I would find that the negative weight attributable to her conduct offsets the other favorable evidence and establishes that she is not a person of good moral character."

The BIA summarily affirmed the decision of the IJ on July 2, 2004, in an order that stated:

PER CURIAM. The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4).

Cuellar filed a timely appeal to this court.

II

Before turning to Cuellar's appeal, we note that Congress's recent enactment of the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231, made several changes to the immigration laws, including some that affect a petitioner's burden in asylum cases and the standard of review of orders of removal. See REAL ID Act, §§ 101(a)(3) and 101(e). The new legislation did not, however, change the requirements for cancellation of removal found in 8 U.S.C. § 1129b, which is the subject of this appeal.

The first question we must address is whether we have jurisdiction to review the BIA's decision denying Cuellar's request for cancellation of removal. The government insists that jurisdiction is lacking because of the bar found in 8 U.S.C. § 1252(a)(2)(B)(i) on review of a discretionary decision of the Attorney General. If it were clear that this was the ground on which the BIA relied, we would agree with that position. As we explained above, however, the BIA's decision to affirm summarily leaves us in the dark. Had the IJ based his decision only on the ground that Cuellar's visit to Mexico broke her continuous physical presence as a matter of law, her appeal could go forward, because we have jurisdiction to review "whether an alien is being removed for a permissible reason," Morales-Morales, 384 F.3d at 422 (quoting Bosede v. Ashcroft, 309 F.3d 441, 445 (7th Cir.2002)), and a determination about a break in physical presence is a "non-discretionary question of statutory interpretation" that falls within our jurisdiction, id. at 423.

Our sister circuits have come to different conclusions about the reviewability of an IJ decision that contains both a reviewable and nonreviewable basis, which the BIA affirms without opinion. Before looking at their decisions, it is worth recalling exactly what the BIA itself says it is doing in such cases:

An order affirming without opinion, issued under authority of this provision [8 C.F.R. § 1003.1(e)(4)], shall not include further explanation or reasoning. Such an order approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning of that decision, but does signify the Board's conclusion that any errors in the decision of the immigration judge or the Service were harmless or nonmaterial.

8 C.F.R. § 1003.1(e)(4)(ii). Affirmances under this procedure thus are not equivalent to any kind of "adoption" of the IJ's opinion. They address only the bottom-line result.

The Ninth, Fifth, and First Circuits have concluded that the proper disposition when an IJ opinion contains both reviewable and nonreviewable grounds is to remand to the...