In re Romalez-Alcaide, Interim Decision Number 3475
| Decision Date | 29 May 2002 |
| Docket Number | Interim Decision Number 3475,File A74 108 648. |
| Citation | 23 I&N Dec. 423 |
| Parties | In re Hilario ROMALEZ-Alcaide, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman; SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA, OHLSON, and HESS, Board Members. Concurring Opinion: PAULEY, Board Member. Dissenting Opinion: ROSENBERG, Board Member, joined by ESPENOZA, Board Member.
FILPPU, Board Member:
We dismiss the respondent's appeal from a March 16, 1998, decision denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998). We agree with the Immigration Judge that the respondent's two short departures from the United States in 1993 and 1994, both under the threat of deportation, constituted breaks in the respondent's accrual of continuous physical presence for purposes of cancellation of removal.
The facts are not in dispute. The respondent is a native and citizen of Mexico who initially entered the United States in 1984. In January 1993 and April 1994, he departed the United States under threat of deportation. On each occasion, the respondent remained in Mexico for a day or 2 and then unlawfully returned to the United States.
A Notice to Appear (Form I-862) commencing removal proceedings was personally served on the respondent and filed with the Immigration Court in July of 1997. The respondent was charged with removability under section 212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (Supp. III 1997), because of a 1992 entry he made without having been admitted or paroled after inspection. The respondent conceded removability from the United States and applied for cancellation of removal under section 240A(b) of the Act and voluntary departure under section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (Supp. III 1997). But for his two very short departures under the threat of deportation, the respondent satisfied the "continuous physical presence" requirement for cancellation of removal.
The Immigration Judge found that the respondent had failed to meet both the 10-year continuous physical presence requirement and the "exceptional and extremely unusual hardship" requirement for cancellation of removal, and he concluded that the respondent did not merit such relief as a matter of discretion. However, the Immigration Judge granted the respondent's request for voluntary departure. The respondent's timely appeal challenges only the denial of his application for cancellation of removal.
We confine our inquiry to whether the respondent has accrued the 10 years of continuous physical presence needed for cancellation of removal. We reject his contention that the special rule set forth in section 240A(d)(2) of the Act is the exclusive measure of what constitutes a break in continuous physical presence. We hold that a departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of section 240A(b)(1)(A) of the Act.1
Section 240A(b)(1)(A) of the Act provides that the Attorney General may cancel removal and adjust an alien's status to that of a lawful permanent resident if, among other requirements, the alien "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 cancellation of removal.
Section 240A(d) of the Act sets forth special rules relating to continuous residence and continuous physical presence. The respondent argues that his departures are not "breaks" in presence because they do not run afoul of these special rules. Section 240A(d)(2) provides as follows TREATMENT OF CERTAIN BREAKS IN PRESENCE.—An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) 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.
We start with the language of the statute itself. Section 240A(b)(1)(A) requires an alien to have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding" the application. Absent further statutory qualification or exception, this "continuous physical presence" requirement does not permit an applicant to make any departures whatsoever from the United States during the qualifying period.
In this respect, the statute parallels its predecessor suspension of deportation provisions at section 244(a) of the Act, 8 U.S.C. § 1254(a) (1982). For example, former section 244(a)(1) specified, in part, that an applicant for suspension of deportation must have "been physically present in the United States for a continuous period of not less than seven years immediately preceding the date" of the application. In INS v. Phinpathya, 464 U.S. 183 (1984), the United States Supreme Court ruled that the literal language of this identically worded predecessor provision permitted no exception for departures of any character.
Congress responded to the Supreme Court's Phinpathya ruling by creating an exception for "brief, casual, and innocent" departures in former section 244(b)(2) of the Act, 8 U.S.C. § 1254(b)(2) (Supp. IV 1986). This early exception to the rigors of absolutely uninterrupted physical presence has been replaced by the more objective provisions of section 240A(d)(2) of the Act. On the strength of the current statutory exception, the respondent argues that any departure of 90 days or less does not break continuous physical presence, including a departure made under threat of the institution of deportation proceedings.
The statutory language, however, does not literally forgive any single departure of 90 days or less or aggregate departures of 180 days or less. Further, it does not purport to be the exclusive rule respecting all departures. Rather, as its caption announces, it addresses the treatment of "certain breaks" in presence, strongly implying that there can be "breaks" other than those which exceed the 90- or 180-day statutory limits. Section 240A(d)(2) of the Act.
The statute also directs that an alien "shall be considered to have failed to maintain continuous physical presence" by a departure exceeding 90 days or aggregate departures exceeding 180 days. Id. The objective command that departures of certain lengths "shall" break continuous physical presence implies that shorter departures are acceptable, but it does not specifically exempt all such shorter departures. It does not, for example, formally exempt a departure of 90 or fewer days resulting from enforcement of an order of removal under current law or an order of deportation under prior law. Nor, as in this case, does it specifically forgive a departure following an arrest by the Border Patrol with the threat that formal proceedings will be commenced absent the alien's voluntary return to his or her native country.
Thus, the literal language of the statute provides support by implication for the arguments of both the Immigration and Naturalization Service and the respondent, but it does not, by itself, answer the question raised in this case. We must therefore look beyond the language of section 240A itself.
The statute as a whole does not support the respondent's contention that section 240A(d)(2) of the Act preserves an alien's eligibility for cancellation of removal for any departure of 90 days or less. Specifically, section 241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5) (2000), provides that an alien who departs the country under an order of removal and unlawfully reenters the United States "may not apply for any relief under this Act." Thus, pursuant to this section of the statute, upon reentry the alien is barred from seeking cancellation of removal, even if he returns within 90 days.2
Under the respondent's construction of the statute, an alien who departed under a formal order of removal could nevertheless retain eligibility for cancellation of removal, despite this statutory bar to all relief for persons who illegally return after being removed. This would be possible if the removed alien returned lawfully within 90 days of the execution of an order of removal, for example, as a nonimmigrant with the necessary waivers to obtain urgent medical care. Although such an outcome is not foreclosed by the literal language of the statute, it would be inconsistent with the purpose of both removal and admission in most nonimmigrant categories.
An order of removal is intended to end an alien's presence in the United States, as was an order of deportation under prior law. As the Supreme Court has noted, the "obvious purpose of deportation is to terminate residence." Mrvica v. Esperdy, 376 U.S. 560, 568 (1964) (). Furthermore, admission as a nonimmigrant generally contemplates the alien's departure after the authorized period of stay ends or the purpose of the trip is completed. We therefore believe it would be contrary to the very reason...
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