Rubio-Rubio v. I.N.S., RUBIO-RUBIO

• Decision Date: 25 April 1994
• Docket Number: No. 93-9515,RUBIO-RUBIO,93-9515
• Citation: 23 F.3d 273
• Parties: Laura Renata, also known as Laura Renata Woods, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 273

23 F.3d 273

Laura Renata RUBIO-RUBIO, also known as Laura Renata Woods, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-9515.

United States Court of Appeals Tenth Circuit.

April 25, 1994.

Ann Allott, Littleton, CO, for petitioner.

Marshall Tamor Golding, U.S. Dept. of Justice (Frank W. Hunger, Asst. Atty. Gen. Richard M. Evans, Asst. Director, Office of Immigration Litigation, and Stewart Deutsch, Office of Immigration Litigation, U.S. Dept. of Justice, on the brief), Washington, DC, for respondent.

Before WHITE, Associate Justice (Retired), ^* ANDERSON, and BALDOCK, Circuit Judges.

WHITE, Associate Justice (Retired).

Section 244(a)(1) of the Immigration and Nationality Act, as amended, 8 U.S.C. Sec. 1254(a)(1), provides that, at her discretion, the Attorney General may suspend deportation of an otherwise deportable alien who "has been physically present in the United States for a continuous period of not less than seven years ...; was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien...." Section 244(b)(2), 8 U.S.C. Sec. 1254(b)(2), adds that "[a]n alien shall not be considered to have failed to maintain continuous physical presence in the United States under paragraphs (1) and (2) of subsection (a) if the absence from the United States was brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence." Petitioner Laura Renata Rubio-Rubio asks us to set aside the decision of the Board of Immigration Appeals that she had failed to maintain continuous physical presence within the meaning of Sec. 244(a)(1) and 244(b)(2) and, hence, did not qualify for suspension of deportation. ¹

I.

Petitioner was born in Mexico and first arrived in the United States on November 19, 1983, when she was twelve years old. She was admitted as a visitor with permission to remain for six months. Her last extension expired on May 19, 1984. On March 24, 1987, petitioner departed for Mexico and returned to the United States on January 3, 1988. At the time of her departure, her mother and aunt were living in the United States. Neither had legal status in this country. Her lawful permanent resident brother lived in Japan. Her sister, grandmother, an aunt, uncle, and cousins lived in Mexico. Her relationship with her mother was unsatisfactory and she had been living with friends or her aunt for some months. Her aunt, however, asked her to leave and she did not wish to impose further on friends. An uncle counselled her that she should return to Mexico, which she did. At that time, according to her testimony, she intended to live in Mexico and complete her education there.

After three weeks in Mexico she decided to return to the United States because the schools in Juarez, Mexico, would not accept the credits she had earned in American schools and, hence, she could not complete her education in Mexico as she had planned. In order to earn money to return to the United States, she first worked in a meat packing plant in Juarez and subsequently moved to Mexico City where she worked as a secretary to an attorney while living with her brother and his wife. Finally, she was able to communicate with her mother who helped finance her return to this country, which occurred in January, 1988. Because she admitted in deportation proceedings brought by the Immigration and Naturalization Service (the "Service") that she had not complied with the conditions of her reentry, she was subject to deportation and the immigration judge so found.

Petitioner filed a petition for suspension of deportation, however, which the immigration judge granted. Ordinarily, the judge observed, petitioner's stay in Mexico would not be found to be brief and casual; but it was surely innocent, and because petitioner was only sixteen years of age it was deemed questionable whether she could make an informed decision that should bind her. Certified Administration Record (hereafter "C.A.R.") at 41. The judge concluded that the circumstances faced by petitioner in 1987 were "sufficient to render her decision to leave and go back to Mexico as one which was made under what might be termed constructive duress." Id. Petitioner's decision to depart from the United States "was one of necessity and not of preference," id. at 42, and, hence, her absence from the United States was considered to be brief, casual, and innocent and not as meaningfully interrupting her presence in the United States.

The Board sustained the Service's appeal and vacated the decision by the immigration judge. The Board observed that the physical presence requirement of Sec. 244(a)(1) "is not subject to a hard and fast construction." C.A.R. at 4. But after examining the record before it, the Board concluded that petitioner's "9-month-long stay in Mexico cannot be characterized as a brief sojourn outside the United States. Nor can [petitioner's] trip be considered a casual visit since she went to Mexico with the intent of living there permanently and she engaged in employment while there." Id. at 5. The Board therefore found that there had been a meaningful interruption of petitioner's physical presence in the United States within the meaning of Sec. 244(b)(2). ²

We affirm the Board's decision and dismiss the petition for review.

II.

In 1984, in INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401, the Supreme Court held that the seven-year continuous physical presence requirement to qualify for suspension of deportation under Sec. 244(a)(1) must be strictly construed in order to conform to congressional intent. The Court, thus, rejected the more flexible standard that some of the courts of appeals and the Board itself had been applying. In 1986, however, Congress decided to relax the strict standard that the statute required. It did so by adding Sec. 244(b)(2) which provided that a brief, casual, and innocent absence from the United States, one that did not meaningfully interrupt an alien's continuous physical presence, would not constitute a violation of the seven-year presence requirement. The language of the amendment reflected the flexible standard applied by some courts of appeals prior to Phinpathya. That standard had its roots in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), a case dealing with a different section of the Immigration and Nationality Act. None of the other independent requirements of Sec. 244(a)(1) was otherwise altered by Congress, and we are cited to no case in any court of appeals subsequent to the adoption of Sec. 244(b)(2) dealing with the application of its brief, casual, and innocent language.

Petitioner asserts that the Board erred in holding that her stay in Mexico was neither brief nor casual. Our review of the Board's interpretation and application of these statutory terms and, therefore, our review of the Board's disposition of petitioner's argument on this score, is guided by the two-step procedure set out in Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Furr's/Bishop's Cafeterias, L.P. v. INS, 976 F.2d 1366, 1369 (10th Cir.1992). First, if Congress has directly spoken to the precise question at issue, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-843, 104 S.Ct. at 2781. But, if Congress has not addressed the precise question at issue, we are not free to impose our own construction on the statute; rather, we must ask whether the agency's construction of the statutory language is a permissible one. If it is, we must defer to the Board's decision. Id. at 843-844, 104 S.Ct. at 2782-83.

The first Chevron step raises an issue of law, one for a reviewing court's de novo decision and one that need not detain us long in this case. The words "brief" and "casual" hold no single, precise meaning either generally or as used in Sec. 244(b)(2), nor has petitioner advanced any argument that they do. Congress itself did not attempt to endow them with any particular meaning either, leaving them statutorily undefined. It cannot, in sum, reasonably be said that Congress has unambiguously spoken to whether petitioner's nine-month stay in Mexico could or could not statutorily qualify as brief and casual.

Nor has petitioner convinced us that the Board's decision in this case was an impermissible construction or application of the critical words of Sec. 244(b)(2). ³ That section left the Board with the considerable task of spelling out the meaning of the language that Congress had for the first time directed the Service and the Board to apply in suspension cases. Whether the Board could proceed on the basis that the language of the 1986 amendment was newly coined by Congress, defining the terms brief and casual without reference to pre-Phinpathya caselaw, we need not decide for the Board did not take that course in this case. Rather, in attempting to give meaning to Sec. 244(b)(2)'s amendment of Sec. 244(a)(1), the Board explicitly recognized that the brief and casual language of the amendment had originated in Fleuti and cited two decisions by the Ninth Circuit, Git Foo Wong v. INS, 358 F.2d 151 (1966) and Wadman v. INS, 329 F.2d 812 (1964), applying Fleuti in suspension cases. See C.A.R. at 4-5. It observed that because of the enactment of Sec. 244(b)(2), the continuous physical presence requirement of Sec. 244(b)(2) should not be "subject to a hard and fast construction." C.A.R. at 4. Following this approach was surely a permissible one.

After reviewing the record and the decision of the immigration judge, the Board went on to conclude that petitioner's stay in Mexico "was not a brief or casual journey within the brief, casual, and innocent standard set forth in Rosenberg v....