Ramos–torres v. Holder

• Decision Date: 04 April 2011
• Docket Number: No. 09–60862.,09–60862.
• Citation: 637 F.3d 544
• Parties: Cirilo RAMOS–TORRES, also known as Cirilo Ramos, also known as Cirilo R. Torres, Petitioner,v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

637 F.3d 544

Cirilo RAMOS–TORRES, also known as Cirilo Ramos, also known as Cirilo R. Torres, Petitioner,
v.
Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09–60862.

United States Court of Appeals, Fifth Circuit.

April 4, 2011.

[637 F.3d 545]

Chad Phillip Van Cleave (argued), Cameron, TX, Stephen R. Ramirez, Law Offices of Garcia, Ramirez, Gonzalez & Pina, P.C., San Antonio, TX, for Petitioner.Gregory Michael Kelch (argued), Tangerlia Cox, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.Petition for Review of an Order of the Board of Immigration Appeals.Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.WIENER, Circuit Judge:

Petitioner Cirilo Ramos–Torres, a Mexican citizen, was convicted in 1982 for illegal entry into the United States. He was sentenced to three years of unsupervised probation that was conditioned on his making no illegal return to the United States. Ramos–Torres requested an administrative voluntary departure in lieu of deportation, which was granted, and he returned to Mexico. At some point during the next decade, Ramos–Torres did illegally reenter the United States, and, in 1993, he became a lawful permanent resident (LPR). In 2006, Ramos–Torres was convicted for illegally transporting aliens and was ordered

[637 F.3d 546]

removed from the United States. Ramos–Torres applied for cancellation of removal as an LPR, but the Immigration Judge (IJ) determined as a matter of law that he had never been eligible for LPR status because of his 1982 voluntary departure, and thus he was ineligible for cancellation of removal. The BIA affirmed the IJ's decision. We agree and deny Ramos–Torres's petition for review.

I. FACTS & PROCEEDINGS A. Facts

In 1980, Ramos–Torres, a Mexican citizen, illegally entered and began residing in the United States. In March 1982, the former Immigration and Naturalization Service (INS) apprehended Ramos–Torres while he was illegally transporting aliens. Ramos–Torres pleaded guilty only to the offense of unlawfully entering the United States and was convicted on that count. He was subsequently sentenced to three years of unsupervised probation conditioned on his “making no illegal return to the United States.” As noted, Ramos–Torres applied for an administrative voluntary departure in lieu of deportation proceedings, which was granted, and he returned to Mexico.

Ramos–Torres did illegally return to the United States, however, allegedly right after he voluntarily departed in March 1982. In 1993, he applied for and was granted LPR status under the amnesty provision of the Immigration Reform and Control Act of 1986¹ (IRCA).

In 2006, the INS again apprehended Ramos–Torres for illegally transporting aliens. He pleaded guilty and was convicted of that offense for which he was sentenced to one year of unsupervised probation. Based on that conviction, however, the INS took him into custody for violation of his immigration status, pending removal proceedings. At those proceedings, the IJ sustained the charge of removability.

B. Proceedings

In a separate proceeding, Ramos–Torres sought LPR cancellation of removal under § 240A(a) of the Immigration and Nationality Act² (INA). In his original application, he stated that he first entered the United States in 1993 as an LPR, but he later amended the application to admit that he had first entered the United States in 1982 and had done so illegally.

At the cancellation-of-removal hearing, the IJ had Ramos–Torres confirm that he was admitting that he had returned to Mexico under an administrative voluntary departure order following his illegal entry conviction in 1982. Based on this admission, the IJ determined that Ramos–Torres could never have lawfully obtained temporary resident status—which requires continuous residence in the United States since January 1, 1982—because his voluntary departure later that year broke the requisite period of continued residence. And, if Ramos–Torres could not have legally adjusted his status to that of a temporary resident, he could not have lawfully adjusted his status to that of an LPR. Based on this determination, the IJ concluded that Ramos–Torres was ineligible for cancellation of removal as a matter of law under the INA and ordered Ramos–Torres removed to Mexico.

Ramos–Torres appealed the IJ's judgment to the BIA, which conducted a de novo review and affirmed the IJ's order. Ramos–Torres timely petitioned for review of the BIA's order.

[637 F.3d 547]

II. ANALYSIS

A. Standard of Review

We have jurisdiction to review final orders of removal only to the extent that they raise “constitutional claims or questions of law.” ³ In reviewing the BIA's decision, we review de novo questions of law and the BIA's interpretation and application of Supreme Court and Fifth Circuit precedent.⁴ We do accord deference to the BIA's interpretation of immigration statutes, however, “unless it is plainly erroneous or inconsistent with the regulation.”⁵

B. Ramos–Torres's Voluntary Departure Was “Under Threat of Deportation”

When we review a final order of removal, “a constitutional claim or question of law may be reviewed only if ‘the alien has exhausted all administrative remedies available to the alien as of right.’ Failure to exhaust is a jurisdictional bar.”⁶ “Petitioners fail to exhaust their administrative remedies as to an issue if they do not first raise the issue before the BIA, either on direct appeal or in a motion to reopen.”⁷

Ramos–Torres asserts on appeal that “[t]he conclusions of the IJ and the BIA that [he] departed ‘ under threat of deportation’ [are] not supported by the record.” The government counters that we “lack[ ] jurisdiction to consider Ramos's argument that he did not accept voluntary departure under threat of being placed in deportation proceedings because Ramos did not exhaust this argument before the agency.” Alternatively, the government contends that Ramos–Torres's argument is without merit in light of record evidence that supports the finding that his voluntary departure was under threat of deportation.

In Ramos–Torres's brief to the BIA, he only argued that a “voluntary departure” is distinct from a “departure under an order of deportation.” At no time did he contest the IJ's conclusion that he “was voluntarily returned to Mexico in lieu of deportation.” The BIA, in turn, determined that “[t]he findings of fact which are fully set forth in the Immigration Judge's decision are not clearly erroneous. The issue before us involves the respondent's 1982 voluntary return to Mexico under a threat of deportation....”

To the extent that the question whether Ramos–Torres's voluntary departure was “in lieu of deportation” requires a factual determination that was made by the IJ and confirmed by the BIA, we have no jurisdiction to review it.⁸ To the extent that this question presents an issue of law, Ramos–Torres did indeed fail to exhaust his administrative remedies by not first raising it before the BIA. We therefore have no jurisdiction to review it and must accept that Ramos–Torres voluntarily departed the United States in 1982 under threat of deportation.

[637 F.3d 548]

C. A “Voluntary Departure Under Threat of Deportation” Establishes a Break in Continuous Residence

As the BIA explained in its order, “[A]n alien seeking cancellation of removal has the burden of proof to establish that he is eligible for the relief sought.” If, as a matter of law, Ramos–Torres was not eligible to receive LPR status in 1993, then he could not, and therefore did not, lawfully acquire it—absent which he is not eligible for cancellation of removal.⁹ The key issue before us, therefore, is whether Ramos–Torres's 1982 voluntary return to Mexico under a threat of deportation (which the BIA refers to as an “administrative voluntary departure”) interrupted his continuous residence in the United States such that he has never been eligible for LPR status.

Ramos–Torres putatively obtained LPR status under the amnesty provision of the IRCA, which requires that the alien applicant “establish that he entered the United States before January 1, 1982, and that he has resided continuously in the United States in an unlawful status since such date and through the date the application is filed under this subsection.”¹⁰ The IRCA further states:

[A]n alien shall not be considered to have resided continuously in the United States, if, during any period for which continuous residence is required, the alien was outside the United States as a result of a departure under an order of deportation....¹¹

The Attorney General “may provide for a...