Santana-Albarran v. Ashcroft, 03-3472.

• Decision Date: 10 January 2005
• Docket Number: No. 03-3472.,03-3472.
• Citation: 393 F.3d 699
• Parties: Faustino SANTANA-ALBARRAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 699

393 F.3d 699

Faustino SANTANA-ALBARRAN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-3472.

United States Court of Appeals, Sixth Circuit.

Argued: September 21, 2004.

Decided and Filed: January 10, 2005.

ARGUED: Milton A. DeJesus, Little Rock, Arkansas, for Petitioner. Anthony W. Norwood, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Milton A. DeJesus, Little Rock, Arkansas, for Petitioner. Anthony W. Norwood, Earle B. Wilson, U.S. Department of Justice Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: KEITH, MOORE, and GILMAN, Circuit Judges.

MOORE, Circuit Judge.

Petitioner Faustino Santana-Albarran ("Santana-Albarran") seeks review of the denial of his application for cancellation of removal and adjustment of status under § 240A(b)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b)(1).¹ The Immigration Judge ("IJ") found that Santana-Albarran could prove three out of the four statutory requirements for cancellation of removal, but that he failed to establish that he had been physically present in the United States for a continuous ten-year period. The Board of Immigration Appeals ("BIA") affirmed without opinion. Santana-Albarran seeks review of the decision on two grounds: (1) that his continuous physical presence in the country had already been established in the removal hearing and should therefore have been given preclusive effect in the subsequent cancellation hearing; and (2) that the IJ failed to give proper weight to the back tax returns he filed for the years 1987-1999, which he claims corroborate his testimony that he was present in the country during that time. Neither of these two arguments is persuasive, and therefore we DENY the petition for review.

I. BACKGROUND

Santana-Albarran is a forty-two year old Mexican national who entered the United States "at an unknown location on an unknown date," without being admitted or paroled. Joint Appendix ("J.A.") at 102 (IJ Decision & Order). At his removal hearing, he testified that he had entered the country illegally several times, including in 1982, 1983, and 1985. J.A. at 112-13 (Removal Hr'g Tr.). During his time in the United States, Santana-Albarran has resided in several states, including Arizona, California, and Arkansas. On March 14, 1997, in Little Rock, Arkansas, Santana-Albarran married Catalina Carranza Duarte, who is also unlawfully present within the country. Santana-Albarran and his wife have three children, all of whom were born in the United States and are currently five, six, and twelve years old. The family resides in Little Rock, Arkansas, where Santana-Albarran worked in construction.

On October 30, 1997, the former Immigration and Naturalization Service² ("INS") served Santana-Albarran with a notice to appear ("NTA"), charging him with violating § 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i), which prohibits an alien from being "present in the United States without being admitted or paroled." Based on Santana-Albarran's testimony at his removal hearing, the IJ found each of the allegations in the NTA had been proven: (1) that he was not a United States citizen or national; (2) that he was in fact a Mexican citizen; (3) that he "last entered the United States in 1985 in Arizona;" and (4) that he entered without being admitted or paroled. J.A. at 115 (Removal Hr'g Tr.).

Following the IJ's ruling, Santana-Albarran applied for cancellation of removal and an adjustment of status pursuant to § 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1). Section 240A(b)(1) permits an immigration judge to cancel removal and to modify the status of an otherwise removable alien to a permanent resident if the alien:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of [a specified offense]; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1229b(b)(1). The IJ found that Santana-Albarran could satisfy three of the four statutory requirements.

The IJ found that Santana-Albarran did not have a criminal violation that would fall within the statute's prohibitions and that removal to Mexico would cause "exceptional and extremely unusual hardship" to Kathy Stephanie Santana, his oldest child and a United States citizen. With regards to the good moral character requirement of the law, the IJ discovered that Santana-Albarran had not paid any income taxes since his arrival in the United States. During the approximately seven-month recess before his next hearing on his cancellation application, Santana-Albarran filed federal and Arkansas tax returns for the years 1987 through 1999, and submitted them into evidence. The tax returns were "based on estimates of living expenses" because "documentary evidence of earnings was not available." See, e.g., J.A. at 263 (1999 Tax Returns). While the failure to pay taxes could be sufficient to find bad character, the IJ instead commended Santana-Albarran on his efforts to make amends and pay his back taxes. In addition, the IJ found that Santana-Albarran's good moral character was proven through his involvement in community service projects, including helping with repairs at his daughter's school.

The final requirement that Santana-Albarran needed to satisfy for cancellation of removal was that he submit evidence proving he had been physically present in the United States continuously for ten years, beginning on October 30, 1987.³ At his removal hearing, Santana-Albarran testified that he had last entered the country in 1985. J.A. at 113 (Removal Hr'g Tr.). The first documentary evidence that Santana-Albarran was actually in the United States, however, was pay stubs from an employer in Dateland, Arizona for the period of March 14-31, 1987. The next document chronologically was the result of a California driving test dated December 19, 1989. The State of California issued him a certificate of title for a car on April 10, 1991, and two identification cards in June 1990 and March 1996. Santana-Albarran also submitted rent receipts from January 1993 to November 1994 and again from January 1996 to December 1997. Thus, there existed several large gaps within the ten-year period during which Santana-Albarran could not prove through documentary evidence that he was in the United States: from October 30, 1987 to December 19, 1989; from December 19, 1989 to June 1990; from June 1990 to April 10, 1991; from April 10, 1991 to January 1993; and from November 1994 to January 1996. To prove his presence during these gaps, Santana-Albarran submitted several affidavits from acquaintances attesting to the fact that he was in the United States. None of the affidavits, however, accounted for any time prior to April 1990, and therefore, gaps still remained in the required ten-year continuous period.

Based on those gaps and the absence of any other corroborating evidence, the IJ concluded that Santana-Albarran "offers only his testimony to prove that he has been physically present in the United States for the required ten years." J.A. at 105 (IJ Decision & Order). Therefore, the IJ ruled that Santana-Albarran failed to prove a prima facie case for cancellation of removal and denied Santana-Albarran's application. On March 4, 2003, the BIA affirmed the IJ's decision without an opinion. Santana-Albarran petitioned this court for review.

II. ANALYSIS

Before proceeding to the merits of Santana-Albarran's claims, we must first address our jurisdiction to entertain his petition for review. The INA specifically divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). The denial of relief based on the ground that the alien has failed to demonstrate a continuous physical presence, however, is a non-discretionary factual determination and properly subject to appellate review. Elnemr v. INS, 95 Fed.Appx. 121, 2004 WL 515858, at *4 (6th Cir. Mar.15, 2004); Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir.2001); Escudero-Corona v. INS, 244 F.3d 608, 612 (8th Cir.2001); Bernal-Vallejo v. INS, 195 F.3d 56, 62 (1st Cir.1999); Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). But cf. Valenzuela-Alcantar v. INS, 309 F.3d 946, 950 (6th Cir.2002) (concluding that the IJ's determination of the extreme-hardship issue is discretionary and thus, not subject to judicial review). Therefore, we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), which provides generally for judicial review of all final orders of removal. "When the Board adopts the decision of the IJ in lieu of issuing its own opinion, we review the IJ's decision as the final agency decision." Denko v. INS, 351 F.3d 717, 726 (6th Cir.2003).

A. Collateral Estoppel

The first issue which Santana-Albarran raises in his petition is that his continuous physical presence in the country had been established in the removal hearing, and therefore, the IJ erred by failing to give this finding preclusive effect in his subsequent cancellation hearing. We have held that "[t]he availability of collateral estoppel is a mixed question of law and fact which this court reviews de novo." Hammer v. INS, 195 F.3d 836, 840 (6th Cir.1999), cert. denied, 528 U.S. 1191, 120 S.Ct. 1247, 146 L.Ed.2d 105 (2000). Applying this standard, we conclude that the doctrine of collateral estoppel is inapplicable in this case.

The United States Supreme Court has defined the doctrine of collateral estoppel as providing that "once an issue is actually and necessarily determined by a court of...