Reyes-Vasquez v. Ashcroft
Decision Date | 25 January 2005 |
Docket Number | No. 03-3326.,03-3326. |
Citation | 395 F.3d 903 |
Parties | Antonio REYES-VASQUEZ, Petitioner, v. John ASHCROFT, Attorney General of the United States of America, Respondent. |
Court | U.S. Court of Appeals — Eighth Circuit |
Benjamin Casper, argued, West Saint Paul, Minnesota, for petitioner.
Jamie M. Dowd, argued, Washington, D.C. (Peter D. Keisler, David V. Bernal, and Russell J.E. Verby on the brief), for respondent.
Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES,1 District Judge.
Antonio Reyes-Vasquez petitions for review of the determination of the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) that he is not entitled to cancellation of removal under 8 U.S.C. § 1229b(b). He asserts, however, that we may not reach the merits of his claim until the BIA issues a reasoned opinion because, he argues, the BIA's affirmance without opinion procedure is unconstitutional under separation of powers principles. We hold that our precedent answers the constitutional question. We grant his petition as to the cancellation of removal issue and remand for further proceedings consistent with this opinion.2
Reyes-Vasquez, a native and citizen of Mexico, first entered the United States illegally from Mexico on April 1, 1984. He returned to Mexico for about two weeks in August 1990 to attend to his ailing grandfather. He attempted to reenter the United States on September 15, 1990, and was arrested by the United States Border Patrol. He testified that the Border Patrol locked him in a cell for several hours and then put him "back over the line again" without telling him that he would otherwise have to go before a judge. Later that day, he successfully reentered the United States illegally. He remained in the Chicago area until 1999, when he moved to Minnesota. He received a notice to appear, initiating removal proceedings, on March 20, 2000. Reyes-Vasquez conceded that he was removable, but applied for relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1)(A).3 The IJ found Reyes-Vasquez credible and stated that Reyes would have been entitled to cancellation of removal except for the fact that his voluntary return to Mexico in 1990 interrupted his period of continuous physical presence in the United States and caused it to be less than the statutorily required 10 years. Reyes-Vasquez was denied cancellation of removal on that basis. The BIA issued a summary affirmance on August 22, 2003.
Reyes-Vasquez and his wife have three sons, one of whom is a United States citizen and suffers from learning disabilities.
As our precedent makes clear, the BIA's choice to use the affirmance without opinion procedure does not affect our ability to review this case. Reyes-Vasquez argues that the procedure, 8 C.F.R. § 1003.1(e)(4) (2003),4 is an unconstitutional violation of separation of powers principles. We have rejected prior challenges to the procedure, grounded in due process concerns, and conclude that the present challenge presents no novel issues and must also fail. See Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.2003) ( ).
Reyes-Vasquez's separation of powers claim fails because nothing in the challenged regulation changes the relationship between the three branches of government, for the regulation merely adjusts intra-agency procedures. See 8 C.F.R. § 1003.1 ( ). The Attorney General, a member of the executive branch, acts within his authority delegated by Congress when he creates and interprets regulations to accomplish his immigration management task. See 5 U.S.C. § 301 ( ); 8 U.S.C. § 1103 ( ). The Attorney General therefore acts within his authority when he delegates intra-agency to accomplish the duties given to him by Congress. Whether multiple layers of independent review and analysis at the administrative level are necessary is therefore a due process question, not a separation of powers question, and is controlled by our precedent. See Loulou v. Ashcroft, 354 F.3d 706, 708 (8th Cir.2003); Dominguez, 336 F.3d at 680.
An alien may apply for relief in the form of cancellation of removal if he meets the requirements set out in 8 U.S.C. § 1229b(b). We conclude that we have jurisdiction to consider Reyes-Vasquez's contention that the IJ improperly found him ineligible for such relief. Although the decision to grant cancellation of removal is a discretionary act by the Attorney General that we may not review, 8 U.S.C. § 1252(a)(2)(B); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir.2003) (per curiam), we may consider the predicate legal question whether the IJ properly applied the law to the facts in determining an individual's eligibility to be considered for the relief. See Morales-Morales v. Ashcroft, 384 F.3d 418, 421-22 (7th Cir.2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216-17 (5th Cir.2003) ( ). In doing so, we give substantial deference to the agency's interpretation of immigration statutes. See Afolayan v. INS, 219 F.3d 784, 787 (8th Cir.2000). Here, the IJ did not exercise discretionary authority because he determined that Reyes-Vasquez was ineligible for the relief. The IJ concluded that Reyes-Vasquez met all the requirements except one: he had not "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application." 8 U.S.C. § 1229b(b)(1)(A). As indicated above, the IJ stated that if Reyes-Vasquez had met the ten-year requirement, "the Court would grant this application for cancellation of removal."
An alien's continuous period of physical presence in the United States may be cut off or broken in several ways. It stops accruing when an alien receives a notice to appear from the INS. 8 U.S.C. § 1229b(d)(1). It is broken if the petitioner has committed certain crimes or "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). Our case law establishes that it is also broken "when an alien voluntarily departs under threat of deportation." Palomino v. Ashcroft, 354 F.3d 942, 944 (8th Cir.2004) ( ).
In this case, it is clear that Reyes-Vasquez was not out of the country more than 90 days, as he returned to Mexico for only about two weeks to visit his ailing grandfather. The principal question we must resolve, therefore, is whether Reyes-Vasquez's experience at the border in 1990 constituted voluntary departure "under threat of deportation" so as to legally break his continuous period of physical presence in the United States. We conclude that the record is insufficient to establish that such a voluntary departure occurred.
As indicated above, voluntary departure under threat of deportation is the form of departure that breaks continual presence. See Palomino, 354 F.3d at 944; Morales-Morales, 384 F.3d at 426. That language implies that there is an expressed and understood threat of deportation. When an alien is legally permitted to depart voluntarily, he should "leave[ ] with the knowledge that he does so in lieu of being placed in proceedings" and therefore has no legitimate expectation that he may reenter and resume continuous presence. In re Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002) (en banc).
"There is a significant difference between ... the Border Patrol simply turning [the alien] back at the border and voluntary departure under threat of removal proceedings." Morales-Morales, 384 F.3d at 427. In cases in which a finding of a break in continuous presence has been upheld, the threat of deportation was expressed and understood by the alien. See Palomino, 354 F.3d at 943 ( ); Mireles-Valdez, 349 F.3d at 214 ( ); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 969 (9th Cir.2003) (per curiam) (, ) 315 F.3d 1201 (9th Cir.2003). The alien is unlikely to have understood the threat and its consequences, however, if the record fails to establish that any communication about the possibility of deportation occurred and the alien credibly testifies that he was simply released back over the border. See Morales-Morales, 384 F.3d at 427 ( ).
In 1990, the U.S. Border Patrol had the authority to grant voluntary departure to an alien "[w]ho is a native of a foreign contiguous territory" such as Mexico. See 8 C.F.R. § 242.5 (1990). Voluntary departures, which are formal and legally binding grants, were commonly documented in an alien's file, ...
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