Escudero-Corona v. Imm. and Natural. Service

• Decision Date: 17 January 2001
• Docket Number: PETITIONER,ESCUDERO-CORON,Nos. 99-1012,s. 99-1012
• Citation: 244 F.3d 608
• Parties: (8th Cir. 2001) CLAUDIA, v. IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENTS. /00-2600 Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 608

244 F.3d 608 (8th Cir. 2001)

CLAUDIA ESCUDERO-CORONA, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, RESPONDENTS.

Nos. 99-1012/00-2600

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 17, 2001

Filed: March 22, 2001

Petitions for Review of Orders of the Board of Immigration Appeals. [Copyrighted Material Omitted] Before Wollman, Chief Judge, Lay and Hansen, Circuit Judges.

Hansen, Circuit Judge.

Claudia Escudero-Corona petitions this court for judicial review of an order of the Board of Immigration Appeals (BIA) denying her application for suspension of deportation on the ground that she could not establish seven years of continuous physical presence in the United States to make her eligible for a suspension of deportation. She also seeks judicial review of a decision by the BIA denying her motion for reconsideration. She asserts that sufficient time has passed that she can now meet the seven-year requirement and that the BIA erred by concluding that the time stopped accruing when she was served with an order to show cause why she should not be deported. For the reasons that follow, we deny the petitions for review and affirm the decisions of the BIA.

I.

Ms. Escudero-Corona is a native and citizen of Mexico. She entered the United States without inspection in 1980. In 1994, the INS issued an order to show cause why she should not be deported. She conceded deportability but submitted an application for suspension of deportation pursuant to Section 244(a)(1) of the Immigration and Naturalization Act. See 8 U.S.C. § 1254(a)(1) (1994) (repealed). This provision allowed a deportable alien to petition the INS for a discretionary suspension of deportation if the alien could show (1) physical presence in the United States for a period of not less than seven continuous years immediately preceding the date of her application, (2) good moral character during that time, and (3) that deportation would result in extreme hardship to the alien or an immediate relative. Id.

At a hearing before an immigration judge, Ms. Escudero-Corona testified that in 1980, at the age of 17, she illegally entered the United States with her mother. She asserted that from 1980 until 1989, she and her mother resided in California in the home of a friend named Luz Rodriguez, along with Mrs. Rodriguez's husband and three children, helping with the house work and making tamales. Ms. Escudero-Corona said that throughout those nine years she could not speak English, did not go to school, never saw a doctor, and left the house only to go to one nearby store, though she could not recall its name.

In 1989, Ms. Escudero-Corona conceived a child with a man from Mexico City. She then moved to Minnesota with her mother. In May 1990, she gave birth to a daughter in Minneapolis, where she and her daughter have lived since that time. Ms. Escudero-Corona has learned to speak and write English, she completed her GED, obtained a driver's license, and now holds a job.

Before issuing an oral ruling, the immigration judge notified Ms. Escudero- Corona and her attorney that he had serious doubts concerning whether she met the seven year continuous physical presence requirement to make her eligible for suspension relief. Counsel proffered no further evidence or testimony on her physical presence other than Ms. Escudero-Corona's own uncorroborated testimony. The record before the immigration judge contained no correspondence from any family or friends to support her testimony that she continuously resided in the United States prior to 1990. While her mother was available to testify, Ms. Escudero-Corona's counsel never called upon her to do so.

The immigration judge noted that statements in Ms. Escudero-Corona's medical records were inconsistent with her assertion of continuous physical presence prior to 1990. The statements indicated that she had used some medication from Mexico and had been on some medication in Mexico before she became pregnant in 1989. The immigration judge found that in light of the lack of any documentary support for her claim and the contradictory statements in her medical records, Ms. Escudero-Corona had not established that she was continuously present in the United States for seven years immediately preceding her application for suspension of deportation. Thus, on April 16, 1996, the immigration judge denied her request for suspension of deportation and granted her a voluntary departure, requiring Ms. Escudero-Corona to leave the United States within thirty days.

Ms. Escudero-Corona filed an administrative appeal. During the pendency of the administrative appeal, she also filed a motion to reopen or remand, attempting to present new evidence to corroborate her claim of continuous physical presence. Her supposedly "new" evidence consisted of some correspondence (allegedly from the 1980s). She also asserted that the immigration judge erred by not considering an affidavit from Mrs. Rodriguez, the woman in California with whom Ms. Escudero-Corona purportedly lived during the 1980s. The BIA found no error in the immigration judge's determination that Ms. Escudero-Corona did not meet the seven year continuous presence requirement. Additionally, the BIA denied the motion to reopen or remand, finding that the newly submitted letters were not new evidence and that in any event, all postmarks but one dated 1990 were illegible. The BIA considered the affidavit of Luz Rodriguez but concluded that it was of "little probative value in view of the apparent disappearance of the affiant." (Petitioner's App. at 53.) Ms. Escudero-Corona then sought judicial review in this court and simultaneously filed a motion to reconsider with the BIA. We granted a stay of deportation pending our review of the case and held the initial petition for judicial review in abeyance pending the BIA's decision on the motion to reconsider.

In her motion to reconsider, Ms. Escudero-Corona urged the BIA to reconsider whether she now met the seven year continuous presence requirement, having been in Minnesota from 1989 through 1998. Relying on two of its own previous decisions, the BIA denied the motion to reconsider. Specifically, the BIA determined that the amendments made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, 3009-546 to 3009-724 (codified as amended in scattered sections of 8 U.S.C.) and the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Pub. L. No. 105-100, 111 Stat. 2160, 2193-2201 (codified as amended in scattered sections of 8 U.S.C.) apply to stop the accrual of the seven years once an order to show cause has been served, citing Matter of Nolasco, Interim Decision 3385 (BIA 1999). The BIA also concluded that an alien may not begin to accrue the requisite seven years after the order to show cause has been served, citing Matter of Mendoza-Sandino, Interim Decision 3426 (BIA 2000).

Ms. Escudero-Corona sought judicial review of the denial of her motion for reconsideration. We consolidated this petition with her original petition for judicial review.

II.

A.

We examine the BIA's factual findings under a substantial evidence standard of review. Tang v. INS, 223 F.3d 713, 718 (8th Cir. 2000). Ms. Escudero-Corona first argues that the BIA erred in affirming the immigration judge's determination that she did not meet the seven year continuous physical presence requirement between the years of 1980 and 1989. She argues that the BIA should have given full weight to the affidavit of Luz Rodriguez, with whom she purportedly lived throughout that time. The affidavit states that Carmen Corona (the petitioner's mother) and her daughter (Ms. Escudero-Corona) lived in Mrs. Rodriguez's home from June 1980 to August 1989. This affidavit was apparently used in relation to the mother's removal proceedings and is dated August 27, 1993. In its opinion, the BIA said that it did "consider the affidavit, but we find that it has little probative value in view of the apparent disappearance of the affiant." (Petitioner's App. at 53.)

We find no reversible error in the BIA's decision to consider but grant little probative weight to this affidavit. For whatever reason, Mrs. Rodriguez could not be located. The affidavit had been signed in connection with another proceeding in 1993, seven years before the BIA's decision in this case. Additionally, no other evidence exists to corroborate Ms. Escudero-Corona's assertion that she lived in California for those nine years in the 1980s. She said she went out only to go to one particular store during the entire time she lived there (but she could not remember the name of the store), she never went any other places, and she never even went for a ride in a car with Mrs. Rodriguez. Despite her allegedly secluded life, however, the record is clear that she conceived a child with a man from Mexico City in 1989, and her medical records bear indications that she may have been in Mexico shortly before this. We see no reason to ascribe any more weight to the Rodriguez affidavit than the BIA was willing to give it.

Ms. Escudero-Corona's mother was available to testify that she and her daughter lived continuously in California during the 1980s, but she was not called upon. Ms. Escudero-Corona blames this lack of evidence on the immigration judge, whom she asserts put off ruling on the matter. The BIA found that the failure to present the mother's testimony resulted in insufficient evidence supporting Ms. Escudero-Corona's explanations of the medical material that contradicted her claim of continuous physical presence.

The record reveals that before issuing his formal oral ruling, the immigration judge informed Ms. Escudero-Corona's attorney, both privately and on the record, of his serious doubts about her proof concerning continuous physical...