In re Avilez-Nava

• Decision Date: 10 August 2005
• Docket Number: Interim Decision No. 3517.,File A75 769 895.
• Citation: In re Avilez-Nava, 23 I&N Dec. 799 (B.I.A. 2005)
• Parties: In re Guadalupe AVILEZ-Nava, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

23 I&N Dec. 799

In re Guadalupe AVILEZ-Nava, Respondent.

Interim Decision No. 3517.

File A75 769 895 - Los Angeles.

Board of Immigration Appeals.

Decided August 10, 2005.

(1) Where an alien departed the United States for a period less than that specified in section 240A(d)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(2) (2000), and unsuccessfully attempted reentry at a land border port of entry before actually reentering, physical presence continued to accrue for purposes of cancellation of removal under section 240A(b)(1)(A) unless, during that attempted reentry, the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.

(2) The respondent's 2-week absence from the United States did not break her continuous physical presence where she was refused admission by an immigration official at a port of entry, returned to Mexico without any threat of the institution of exclusion proceedings, and subsequently reentered without inspection.

FOR RESPONDENT: Fabian C. Serrato, Esquire, Santa Ana, California.

BEFORE: Board En Banc: SCIALABBA, Chairman; OSUNA, Acting Vice Chairman; HOLMES, HURWITZ, FILPPU, COLE, GRANT, MOSCATO, MILLER, and HESS, Board Members. Concurring Opinion: PAULEY, Board Member.

GRANT, Board Member.

In a decision dated August 4, 2003, an Immigration Judge found the respondent removable and denied her application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act,8 U.S.C. § 1229b(b)(2000).The respondent has appealed from that decision.The appeal will be sustained, and the record will be remanded to the Immigration Judge for further proceedings.

I.FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who initially entered the United States in 1986 and resided here illegally.The record reflects that she has two United States citizen children, ages 12 and 2 years old.

Removal proceedings were commenced against the respondent with a Notice to Appear (Form I-862) dated May 18, 2001.At a hearing before an Immigration Judge, the respondent conceded removability and applied for cancellation of removal under section 240A(b) of the Act.The respondent testified that she returned to Mexico one time, on January 3, 1993, to support her mother when her grandmother died.When she attempted to enter through the San Ysidro port of entry 2 weeks later, she was stopped by immigration authorities.She admitted that she had no entry documents and she was taken to a room where a man explained that she could not enter because she did not have documents.She was then escorted to a door "back across the border," returned to Mexico, and entered illegally via the same port of entry in a vehicle 2 days later.No evidence was offered by the Department of Homeland Security("DHS").

The Immigration Judge denied the respondent's application, relying on our decision in Matter of Romalez,23 I&N Dec. 423(BIA2002).In that decision, we held that continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings.The Immigration Judge found that the respondent was statutorily ineligible for cancellation of removal under section 240A(b)(1)(A) of the Act because she could not establish the requisite 10 years of continuous physical presence as a result of her unsuccessful application for admission into the United States on January 3, 1993.

On appeal, the respondent argues that the Immigration Judge erred in concluding that she had not shown the requisite 10 years of continuous physical presence.According to the respondent, she was simply told that she could not cross the border and was escorted to a door through which she returned to Mexico.She therefore asserts that she was not compelled to depart the United States under the threat of the institution of deportation or removal proceedings, as was the case in Matter of Romalez, supra.The DHS has not filed a response brief.

II.ISSUE

Our inquiry is whether the respondent has accrued the 10 years of continuous physical presence required to establish eligibility for cancellation of removal.We hold that an alien's continuous physical presence continues to accrue for purposes of section 240A(b)(1)(A) of the Act following his or her departure of a duration less than that specified in section 240A(d)(2) unless, upon return to a land border port of entry, the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.As the record does not establish that such an event occurred in this case, the respondent is not ineligible for cancellation of removal pursuant to section 240A(b)(1)(A).

III.RELEVANT LAW

An alien may be eligible for cancellation of removal if it is established, inter alia, that he or she"has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date" of the application for relief.Section 240A(b)(1)(A) of the Act.The statute provides that the accrual of continuous physical presence is deemed to end when an alien is served a notice to appear.Section 240A(d)(1)(A) of the Act;cf.Matter of Cisneros,23 I&N Dec. 668(BIA2004)(finding that service of the charging document that is the basis for the current proceeding stops the accrual of continuous physical presence, but that service of a charging document in a prior proceeding does not prevent the accrual of a new period of physical presence following the alien's departure and return).This "stop-time" rule is applicable in cases dealing with cancellation of removal, as well as those involving suspension of deportation.Matter of Nolasco,22 I&N Dec. 632(BIA1999)(finding that service of an Order to Show Cause and Notice of Hearing (Form I-221) terminates physical presence for purposes of suspension of deportation);¹accordMatter of Mendoza-Sandino,22 I&N Dec. 1236, 1240(BIA2000).

Physical presence also terminates upon the commission of a specified criminal offense that renders the alien inadmissible or removable.Section 240A(d)(1)(B) of the Act.The offense must be one "referred to in section 212(a)(2)" of the Act, 8 U.S.C. § 1182(a)(2)(2000), in order to terminate the period of continuous physical presence required for cancellation of removal.Matter of Campos-Torres,22 I&N Dec. 1289(BIA2000);see alsoMatter of Perez,22 I&N Dec. 689(BIA1999)(finding that continuous residence or physical presence for cancellation of removal purposes is deemed to end on the date that a qualifying offense has been committed).

According to section 240A(d)(2) of the Act, an alien who has departed from the United States for any period in excess of 90 days, or for any periods in the aggregate exceeding 180 days, will be considered to have failed to maintain continuous physical presence.²However, as we held in Matter of Romalez, supra, at 425, the statute"does not purport to be the exclusive rule respecting all departures."

In Matter of Romalezwe addressed the alien's argument that pursuant to section 240A(d)(2) of the Act, his voluntary departures under the threat of deportation proceedings did not break his physical presence because he returned to the United States within a few days of each departure.Considering the purpose of the removal provisions of the Act as a whole, we held that continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under the threat of the institution of deportation or removal proceedings, even if the period of absence was within the time limits set forth in section 240A(d)(2).

Our ruling in Matter of Romalez has been upheld in the United States Courts of Appeals for the Fifth, Eighth, and Ninth Circuits.Vasquez-Lopez v. Ashcroft,343 F.3d 961(9th Cir.2003)(holding that a departure under the threat of coerced deportation was properly regarded as a break in the continuum of the alien's physical presence for purposes of cancellation of removal);see alsoPalomino v. Ashcroft,354 F.3d 942(8th Cir.2004);Mireles-Valdez v. Ashcroft,349 F.3d 213(5th Cir.2003).But seeOrtiz-Cornejo v. Gonzales,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 the alien's apprehension and return by the Border Patrol was not a "presence-breaking voluntary departure" where there was no evidence that the alien was informed of and accepted the terms);Morales-Morales v. Ashcroft,384 F.3d 418(7th Cir.2004)(finding that Matter of Romalez is not applicable in the absence of evidence that the respondent knew she departed in lieu of being placed in proceedings).

Under current law, therefore, the accrual of continuous physical presence terminates or breaks upon the occurrence of one of the following events: the service of a charging document; the commission of one of the enumerated criminal offenses; absences of a specified duration; or, as we held in Matter of Romalez, supra, voluntary departure under the threat of the commencement of removal or deportation proceedings.However, neither the Act nor our precedent decisions directly address the circumstances of an alien, such as the respondent, who has returned from a brief absence and is refused admission...