VÁsquez v. Holder

• Decision Date: 16 February 2011
• Docket Number: No. 09–2673.,09–2673.
• Citation: 635 F.3d 563
• Parties: Julio VÁSQUEZ, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

635 F.3d 563

Julio VÁSQUEZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–2673.

United States Court of Appeals, First Circuit.

Heard Dec. 6, 2010.Decided Feb. 16, 2011.

Thomas P. Glynn with whom Allan M. Tow was on brief for petitioner.Tiffany Walters Kleinert, Trial Attorney, with whom Tony West, Assistant Attorney General, and David V. Bernal, Assistant Director, were on brief for respondent.Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.STAHL, Circuit Judge.

Julio Vásquez, a 39–year–old citizen of Guatemala, petitions for review of an order issued by the Board of Immigration Appeals (“BIA”). Vásquez challenges the BIA's conclusion that an expedited removal order interrupted his continuous physical presence in the United States, thereby rendering him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b. Alternatively, Vásquez urges this court to remand for a determination as to whether he was warned about the consequences of an expedited removal order and “given the choice of being turned away.” We deny this petition in part and dismiss it in part for lack of jurisdiction.

I. Facts & Background

Vásquez entered the United States on April 1, 1992 without being admitted or paroled. After living in the United States for at least several months, Vásquez applied for asylum. His application was never approved, but Vásquez was issued a work authorization card while the application was pending. ¹

In September 1997, after more than five years in the United States, Vásquez returned to Guatemala “to see if things [had] changed ... after the government signed the peace contract.” On October 22, 1997, Vásquez attempted to re-enter the United States at Miami International Airport using a Guatemalan passport that was not his own. Vásquez was stopped by Immigration and Naturalization Service (“INS”) officials, and provided a sworn statement in which he admitted to paying $1,000 for the fraudulent document. The INS officials deemed Vásquez inadmissible pursuant to two different statutory provisions. See 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States ... is inadmissible.”); id. § 1182(a)(7)(A)(i)(I) (providing that any noncitizen who does not possess valid entry documentation is inadmissible). As a result, Vásquez was issued an expedited removal order pursuant to 8 U.S.C. § 1225(b)(1) and was removed. Nonetheless, later that same month, Vásquez successfully re-entered the United States (without authorization), where he went on to secure consistent employment and purchase a home.

On September 30, 2006, the Department of Homeland Security (“DHS”) commenced formal removal proceedings against Vásquez by serving him with a Notice to Appear (“NTA”). The NTA alleged that Vásquez was subject to removal because he had entered the United States without admission or parole on April 1, 1992. See § 1182(a)(6)(A)(i).

In the proceedings in front of the Immigration Judge (“IJ”), Vásquez conceded that he was removable under § 1182(a)(6)(A)(i), but sought other forms of relief including cancellation of removal pursuant to § 1229b(b)(1) and, in the alternative, voluntary departure. On July 29, 2008, the IJ concluded that Vásquez was ineligible for cancellation of removal. The IJ reasoned that the October 1997 expedited removal order interrupted Vásquez's continuous physical presence in the United States. Consequently, with Vásquez's period of physical presence terminating upon service of the NTA in September 2006, see § 1229b(d)(1), Vásquez lacked the ten years of continuous physical presence required by § 1229b(b)(1). The IJ did, however, grant Vásquez's application for voluntary departure.

On November 27, 2009, the BIA, in an opinion that appears to have been issued by a single member,² dismissed Vásquez's appeal and affirmed the IJ's decision. Citing In re Avilez–Nava, 23 I. & N. Dec. 799, 805–06 (BIA 2005) (en banc) and Juarez–Ramos v. Gonzales, 485 F.3d 509 (9th Cir.2007), the BIA explained, “The [October 1997] expedited removal proceedings constituted a ‘formal, documented process pursuant to which the alien was determined to be inadmissible to the United States,’ such as would be inconsistent with a continuation of physical presence.” As a result, Vásquez lacked the requisite ten years of continuous physical presence prior to being served with the NTA in September 2006.

II. Discussion

In cases where the BIA has rendered a decision with its own analysis of the question at issue, our review focuses on the BIA's decision, not the IJ's. ³ See Pulisir v. Mukasey, 524 F.3d 302, 307–08 (1st Cir.2008); cf. Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir.2005) (“Where ... the BIA has employed its streamlined ‘affirmance without opinion’ procedure, see 8 C.F.R. § 1003.1(e)(4), we review directly the IJ's decision as if it were the decision of the BIA.”). We review the BIA's conclusions of law de novo “ ‘with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles.’ ” Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.2006) (quoting Gailius v. INS, 147 F.3d 34, 43 (1st Cir.1998)).

A. The Effect of Expedited Removal on Vásquez's Eligibility for Cancellation of Removal

Because § 1229b is unclear as to whether an expedited removal ends the accrual of continuous physical presence in the United States, and the BIA's resolution of that ambiguity was reasonable, we reject Vásquez's challenge to the determination that a departure via an expedited removal order halts continuous physical presence in the United States.⁴

1. Statutory Framework

The Immigration and Nationality Act (“INA”) authorizes expedited removal “[i]f an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7).” § 1225(b)(1)(A)(i). An expedited removal order precludes admissibility to the United States for five years. § 1182(a)(9)(A)(i). However, an alien subject to expedited removal is not entitled to “further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution.” Id. The lack of procedural protections accompanying expedited removal stands in contrast to the significant process, specified in 8 U.S.C. § 1229a, that is required to effectuate a formal removal. See Juarez–Ramos, 485 F.3d at 511 n. 16.

The INA gives the Attorney General discretion to “cancel” removal 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 an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); 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.

§ 1229b(b)(1) (emphasis added) (“subpart (b)(1)”).⁵

Although § 1229b does not include a definition of either “continuous” or “physical presence,” it does include “special rules” that inform the meaning of those terms:

Special rules relating to continuous residence or physical presence

(1) Termination of continuous period

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest. [ (“subpart (d)(1)”) ]

(2) Treatment of certain breaks in presence

An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. [ (“subpart (d)(2)”) ]

Id. § 1229b(d)(1)-(2).

Additionally, the BIA has attempted to clarify what types of events will halt the accrual of continuous physical presence. In In re Romalez–Alcaide, the BIA held that, in addition to the departures exceeding a certain duration specified in subpart (d)(2), a departure under threat of deportation also “constitute[s] [a] break[ ] in the ... accrual of continuous physical presence for purposes of cancellation of removal.” 23 I. & N. Dec. 423, 423–24 (BIA 2002) (en banc). Later, in In re Avilez–Nava, the BIA reaffirmed its conclusion that § 1229b(d)(2) “ ‘does not purport to be the exclusive rule respecting all departures.’ ” 23 I. & N. Dec. at 802 (quoting In re Romalez–Alcaide, 23 I. & N. Dec. at 425) (emphasis in original). The BIA held, however, that a mere refusal to admit at a land border port of entry, without any formal or documented process effectuating that refusal, does not interrupt continuous physical presence. Id. at 803–06. Specifically, the BIA explained:

[W]e hold that an immigration official's refusal to admit an alien at a land border port of entry will not constitute a break in the alien's continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity...