Tapia v. Gonzales, 03-74615.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation430 F.3d 997
Docket NumberNo. 03-74615.,03-74615.
PartiesJose de Jesus TAPIA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
Decision Date06 December 2005
430 F.3d 997
Jose de Jesus TAPIA, Petitioner,
Alberto R. GONZALES,* Attorney General, Respondent.
No. 03-74615.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 4, 2005.
Filed December 6, 2005.

Phillip Smith (argued) and Raquel E. Hecht, Hecht & Smith, LLP, Eugene, OR, for the petitioner.

William C. Erb (argued) and Theresa M. Healy, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-255-521.

Before: GOODWIN and CLIFTON, Circuit Judges, and RHOADES, SR.,** District Judge.

CLIFTON, Circuit Judge.

Jose de Jesus Tapia petitions for review of a decision by the Board of Immigration Appeals ("BIA") affirming without opinion the decision by an immigration judge ("IJ") denying his petition for cancellation of removal. To be eligible for cancellation of removal, a form of relief which permits an alien otherwise subject to being expelled from the United States to remain in

Page 998

this country, the alien must prove, among other things, that he or she has been physically present in the United States for a continuous period of at least ten years.1 A short departure from the United States, such as a brief return to the alien's native country for family reasons, does not necessarily interrupt the accrual of an alien's period of physical presence in the United States, pursuant to an exception for brief absences provided in 8 U.S.C. § 1229b(d)(2). An alien who has briefly departed the United States for such a reason can still satisfy the ten-year presence prerequisite to qualify for cancellation of removal by including the time spent here before the brief absence.

Some absences do interrupt an alien's continuous physical presence, no matter how brief. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir.2003), amending 315 F.3d 1201 (9th Cir.2003), we held that an alien who left the United States pursuant to a formal process known as administrative voluntary departure2 could not continue to accrue presence in the United States from an earlier date. In so holding, we explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc), in which the BIA concluded that an administrative voluntary departure interrupted an alien's continuous physical presence.

But what if the alien departed the country on his own to attend to a family matter and was stopped and turned away at the border by immigration officials when he initially attempted to return to this country a month later, as in the case before us? Does such a rejection have the same effect as an administrative voluntary departure, terminating the accrual of physical presence in the United States for the purpose of eligibility for cancellation of removal? The IJ concluded that it does, reasoning that this case was also controlled by Romalez-Alcaide. The BIA affirmed without opinion. We disagree, however, and conclude that being turned away at the border by immigration officials does not have the same effect as an administrative voluntary departure and does not itself interrupt the accrual of an alien's continuous physical presence. Because that was the reason Tapia was deemed ineligible for cancellation of removal, we grant his petition for review and remand for further proceedings.


Tapia testified that he has been living in the United States since January of 1991 and has worked for the same employer since his arrival, beginning as a general field hand and progressing to a more senior full-time position at one of the company's strawberry nurseries. He earns approximately $38,000 to $40,000 a year, and his employer provides housing for his family. In February 1997 Tapia married his wife, who at that time was also present

Page 999

here illegally. Ten months later they had a son born in the United States.

Upon learning of his brother's death, Tapia went to Mexico in December of 1999 to be with his parents. Beginning on January 14, 2000, Tapia attempted to cross back into the United States. On his first four attempts, Tapia was stopped, turned around, and sent back to Mexico each time. Each of Tapia's thwarted crossings was documented by immigration officials, who entered his fingerprints and picture in the computer database designed to track individuals apprehended at the border. On his first attempt, he was apprehended at the point of entry in El Paso, Texas, detained for a few hours, and then simply released back to Mexico. The next day Tapia attempted to cross the border approximately sixteen miles away in Fabens, Texas. He was apprehended and returned to Mexico. Three days later he tried again in Fabens, with the same result. He next attempted to cross in Boulevard, California, on January 23, 2000. Once again, he was caught and released back to Mexico. On his fifth attempt, on or about January 30, 2000, Tapia made it across the border, albeit without proper authorization, and thereafter returned to his home and family in Oregon.

On March 15, 2001, the government brought proceedings to remove both Tapia and his wife from the United States. Each applied for cancellation of removal and adjustment of status to that of an alien lawfully admitted for permanent residence under 8 U.S.C. § 1229b(b). Mrs. Tapia prevailed as the primary caregiver for her seriously ill mother, a permanent resident awaiting a liver transplant.

The IJ ruled against Tapia, however, relying on Romalez-Alcaide, as noted above. In that decision, the BIA held that an alien who departed pursuant to a grant of administrative voluntary departure terminated the continuity of his physical presence. 23 I. & N. Dec. at 429. Although the IJ characterized each of Tapia's four failed attempts to reenter the United States as merely "a turnaround at the border," he concluded that such a turnaround was legally equivalent to the administrative voluntary departure at issue in Romalez-Alcaide, since in both situations the alien made a choice to depart the country in lieu of removal proceedings. As a result, the IJ held that Tapia did not satisfy the ten-year requirement and was not eligible for cancellation of removal. The IJ denied Tapia's petition and granted him voluntary departure in lieu of removal. The BIA affirmed the IJ's decision without opinion.


While 8 U.S.C. § 1252(a)(2)(B) precludes a court's direct review of the Attorney General's discretionary decisions, the court may consider the predicate legal question of whether the IJ properly applied the law to the facts in determining an individual's eligibility to be considered for relief. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir.2003). The determination of whether an alien has satisfied the continuous physical presence requirement is a factual inquiry guided by legal standards. The decision is non-discretionary, so we retain appellate jurisdiction over the issue. See Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997).


Where the BIA affirms an IJ's order without opinion, we review the IJ's decision as the final agency action. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). We review the IJ's determination of purely legal questions de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003).

Page 1000

The only two circuits that have compared the effects of an administrative voluntary departure and a turnaround at the border on the continuity of an alien's physical presence have concluded that the two means of departure are substantively and procedurally distinguishable and that only the former interrupts the continuity of an alien's physical presence. See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907 (8th Cir.2005) (holding that an alien who had been present in the United States since 1984 and returned to Mexico for two weeks in 1990 to attend to his ailing grandfather did not break the continuity of his presence by simply being turned around at the border upon his attempted reentry); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir.2004) (holding that an alien who had been present in the United States since 1986 and went to Mexico for approximately two weeks in 1999 to care for her gravely ill mother did not break her continuous physical presence when she was turned around at the border upon attempting to reenter the United States). In a decision announced after it affirmed without opinion the IJ's decision in this case, the BIA has likewise concluded that a turnaround at the border by itself does not interrupt an alien's physical presence. In re Avilez-Nava, 23 I. & N. Dec. 799, 807(BIA 2005) (en banc). In reaching its conclusion in that case the BIA cited with approval and stated that it was guided by the Seventh and Eighth Circuit decisions noted above, Morales-Morales and Reyes-Vasquez. Id. at 804-05.

Upon review of the relevant statutory provisions, we agree that being turned away by immigration officials at the border while attempting to...

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