Morales-Morales v. Ashcroft, John D.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3936

CELIA MORALES-MORALES,

Petitioner,

v.

JOHN ASHCROFT, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A77-459-612

____________

ARGUED SEPTEMBER 16, 2003—DECIDED SEPTEMBER 15, 2004

____________

Before FLAUM, Chief Judge, and DIANE P. WOOD and

WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge. Celia Morales-Morales

(Morales) is a Mexican citizen who has resided in the

United States since her original entry without inspection in

1986. After briefly returning to Mexico to attend to her

gravely ill mother, Morales repeatedly and unsuccessfully

attempted to reenter the United States in March 1999.

Ultimately, she was arrested and convicted for the latter

attempt. Upon Morales’s release from imprisonment, the

2 No. 02-3936

Immigration and Naturalization Service (INS)1 initiated

removal proceedings, and Morales in turn applied for can-

cellation of removal. The Immigration Judge (IJ) ruled that

Morales’s brief absence from the country rendered her

ineligible under the statute for cancellation of removal, and

on that ground only, rejected her petition. The Board of

Immigration Appeals (BIA) affirmed without opinion under

its streamlining procedure. Because we conclude that the

statute did not preclude this relief for Morales, we grant her

petition for review and remand for further proceedings.

I

Morales first entered the United States without inspec-

tion (i.e., illegally) in June 1986 at age 16. She is married to

a lawful permanent resident of the United States and is the

mother of four U.S. citizen children, ranging in age from

nine to 16 years old. As far as this record shows, Morales

remained in the United States from the time of her entry

until early March 1999, when she returned to Mexico to

visit her ailing mother. On March 22, 1999, after about two

weeks in Mexico, Morales reentered the United States

without inspection. The U.S. Border Patrol promptly

detained her informally, and she voluntarily returned to

Mexico. These events repeated themselves on three more oc-

casions over the course of six days. Morales testified that

each time the Border Patrol “just took me, threw me around,

and turned me back.” Importantly, she never appeared

before an immigration judge, and no removal proceedings

were initiated. On March 31, 1999, the U.S. Border Patrol

apprehended Morales as she entered the country without

inspection for the fifth time. This time the authorities took

1

The INS no longer exists as an independent agency within the

Department of Justice and is now part of the Department of

Homeland Security.

No. 02-3936 3

matters more seriously. Morales was charged with, and

pleaded guilty to, illegal entry in violation of 8 U.S.C.

§ 1325 and 8 U.S.C. § 1329, and was sentenced to 179 days’

imprisonment, which she served.

Upon completion of her sentence, Morales was released

into the custody of the INS, which initiated removal pro-

ceedings. Shortly thereafter, Morales applied for cancella-

tion of removal under 8 U.S.C. § 1229b(b). On January 11,

2001, an IJ found that Morales’s “return to Mexico by the

Immigration Service was meaningfully interruptive of her

physical presence,” and therefore she could not satisfy the

ten years of continuous physical presence required for eligi-

bility for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(A).

On this basis, the IJ denied Morales’s application for can-

cellation of removal and ordered that she be deported to

Mexico. Morales appealed to the BIA, which affirmed with-

out opinion under its streamlining procedure on October 7,

2002. See 8 C.F.R. § 1003.1(a)(7). This petition for review

followed.

II

Before we reach the merits of Morales’s appeal, we must

address several preliminary matters. The first concerns this

court’s jurisdiction over her petition for review. We have an

independent obligation to ensure that subject matter

jurisdiction is proper before proceeding to the merits, even

where, as here, neither of the parties has raised this as an

issue in the case. Smith v. Am. Gen. Life & Acc. Ins. Co.,

337 F.3d 888, 892 (7th Cir. 2003). The governing statute is

8 U.S.C. § 1252(a)(2)(B), which reads as follows:

(B) Denials of discretionary relief

Notwithstanding any other provision of law, no court

shall have jurisdiction to review—

(i) any judgment regarding the granting of relief

4 No. 02-3936

under section 1182(h), 1182(I), 1229b, 1229c, or 1255

of this title, or

(ii) any other decision or action of the Attorney

General the authority for which is specified under

this subchapter to be in the discretion of the Attor-

ney General, other than the granting of relief under

section 1158(a) of this title.

Section 1229b, which is included in the list in part (i),

governs cancellation of removal. The question before us is

whether this statute was intended to preclude all judicial

review whatsoever, or only judicial review of the way in

which the Attorney General exercises his discretion. At first

blush, the language of the statute appears to be quite

broad: read literally, it would preclude judicial review even

of a decision by the Attorney General to deny cancellation

of removal to all Muslims, or a decision by the Attorney

General to eliminate this form of relief from the statute al-

together. In other areas of immigration law, however, courts

have resisted such an extreme position. Instead, relying on

the proposition that at a minimum, jurisdiction to deter-

mine jurisdiction exists, see Jideonwo v. INS, 224 F.3d 692,

696 (7th Cir. 2000), courts have exercised the authority to

decide whether the particular alien’s claim falls within the

scope of the jurisdiction-stripping statute. See, e.g., Yang v.

INS, 109 F.3d 1185, 1192 (7th Cir. 1997) (deciding whether

the alien had committed one of the enumerated crimes that

leads to automatic, and unreviewable, removal from the

United States).

Although it is true that Morales ultimately wants can-

cellation of removal, that is not the relief she is seeking

before this court—for good reason, as we have no power to

grant that relief. Instead, she seeks to have the Attorney

General consider her petition for cancellation of removal

under the correct interpretation of the eligibility require-

ments set forth in § 1229b(b). That is not the same as

No. 02-3936 5

requesting review of the grant or denial of cancellation of

removal, any more than the request by certain Caucasian

applicants to the University of Michigan for a race-neutral

admissions process necessarily included a demand for a spot

in the class. See Gratz v. Bollinger, 539 U.S. 244, 252 (2003)

(relief requested included damages, an injunction requiring

reformation of the admissions process, and only lastly an

order requiring an opportunity to transfer to the Univer-

sity). Morales’s petition only indirectly concerns the ulti-

mate grant or denial of cancellation of removal; its focus is

on the meaning of the statutory criteria that cabin the

Attorney General’s decisionmaking. In that respect, it is

much like Yang, where the only issue was whether the

petitioner had committed the kind of crime that led to

removal.

Although our conclusion that § 1252(a)(2)(B) does not

foreclose review of this narrow set of questions is consistent

with the fact that the statute expressly refers to denials of

“discretionary” review in the caption, we recognize that the

caption alone is of limited help in understanding the actual

text of the law. Compare INS v. St. Cyr, 533 U.S. 289, 308-

09 (2001) (holding that a section captioned “elimination of

review by habeas corpus” did not eliminate all such review).

We come to this result instead because the statute does not

clearly indicate that the exclusion from judicial review is so

extreme as to purport to authorize the Attorney General to

disregard both the Constitution and the statutory criteria set

forth by Congress. As we suggested in Fornalik v. Perryman,

223 F.3d 523 (7th Cir. 2000), a case may “fall outside [§

1252(a)(2)(B)’s] scope because [the petitioner] is challenging

a pure error of law . . . , not the exercise of discretion.” Id.

at 532; cf. Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th

Cir. 2003) (“We retain jurisdiction [under § 1252(a)(2)(B)] to

review the purely legal and hence non-discretionary ques-

tion whether [the applicant’s] adult daughter qualifies as a

‘child’ for purposes of the ‘exceptional and extremely

unusual hardship’ requirement.” (Citations omitted)).

6 No. 02-3936

We have taken the same approach to the very next sub-

section of the statute, 8 U.S.C. § 1252(a)(2)(C), which pro-

vides that “no court shall have jurisdiction to review any

final order of removal against an alien who is removable by

reason of having committed a criminal offense covered in”

certain enumerated sections. In applying § 1252(a)(2)(C), we

have held that “all persons ordered removed retain the right

to judicial review of the antecedent, non-discretionary

questions, such as whether they are aliens and whether

they have committed disqualifying crimes.” Gill v. Ashcroft,

335 F.3d 574, 575 (7th Cir. 2003); see also Bosede v.

Ashcroft, 309 F.3d 441, 445 (7th Cir. 2002) (“We have held

before on a number of occasions that the review-preclusion

provisions in the 1996 amendments to the immigration laws

do not prevent us from determining whether the alien is

being removed for a permissible reason.”).

Our conclusion is also consistent with the decisions of the

other circuits that have already confronted the question

before us, namely, whether the determination that an alien

has established continuous physical presence for purposes

of § 1229b(b)(1)(A) is subject to judicial review. In Kalaw v.

INS, 133 F.3d 1147 (9th Cir. 1997), the Ninth Circuit

considered whether § 1252(a)(2)(B) barred judicial review of

a BIA determination that an alien had not satisfied the

“continuous physical presence” requirement for suspension

of deportation, the equivalent of cancellation of removal

under prior law. Id. at 1151. The court concluded that

continuous physical presence “must be determined from the

facts, not through an exercise of discretion.” Id. It further

stated that “[t]here are legal standards guiding this inquiry,

and we have reversed the BIA’s determination when it

applied the wrong standard.” Id. (internal citations omit-

ted). It concluded that § 1252(a)(2)(B) “do[es] not remove

appellate jurisdiction over an alien’s challenge to the BIA’s

denial of an application for suspension of deportation solely

on th[e] ground” of continuous physical presence. Id.; see

No. 02-3936 7

also Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.

2003). Citing Kalaw, the Fifth Circuit recently held that

“whether an alien satisfies the continuous physical presence

requirement is a nondiscretionary determination because it

involves straightforward statutory interpretation and

application of law to fact.” Mireles-Valdez v. Ashcroft, 349

F.3d 213, 217 (5th Cir. 2003). That court too concluded that

it had “jurisdiction to review whether [the petitioner] was

ineligible for cancellation because he lacked the required

continuous presence.” Id.

We find this analysis persuasive and join our sister cir-

cuits in holding that the meaning of the term “continuous

physical presence” is a non-discretionary question of stat-

utory interpretation. As such, it falls outside § 1252(a)(2)(B)’s

jurisdiction-stripping rule. We thus are free to proceed to

decide the antecedent, non-discretionary question whether

the IJ correctly interpreted the rules determining when a

break in physical presence has occurred.

III

Before answering this question, we offer a brief comment

on the procedural posture of this case. As noted above, the

BIA gave this case only streamlined review. The BIA’s

streamlining procedure set out in 8 C.F.R. § 1003.1(a)(7)

provides that a single member of the BIA may affirm, without

opinion, the results of an IJ’s decision if the member deter-

mines (1) that the result reached in the decision under re-

view was correct; (2) that any errors in the decision under

review were harmless or non-material; and (3) that (A) the

issue on appeal is squarely controlled by existing Board or

federal court precedent and does not involve the application of

precedent to a novel fact situation; or (B) the factual and

legal questions raised on appeal are so insubstantial that

three-member review is not warranted. “If a case is stream-

lined, the IJ’s decision becomes that of the BIA for purposes

8 No. 02-3936

of judicial review.” Georgis v. Ashcroft, 328 F.3d 962, 966-67

(7th Cir. 2003). Thus, while “[t]his court reviews only the fi-

nal determinations of the BIA,” in practical effect this means

the IJ’s decision in a case like this one.

Streamlining has its institutional costs, however, and it

seems that they were incurred in this case. Unfortunately,

the procedural short cut the Board took may have caused it

to overlook the IJ’s reliance on a defunct legal principle and

one of its own intervening decisions. We do not know that,

of course, because the thinking of the responsible BIA

member is entirely opaque. We turn perforce to the IJ’s

opinion, which offers the rationale for the decision that the

agency must now defend.

IV

A

The statute governing cancellation of removal is 8 U.S.C.

§ 1229b. It is important to recall that this statute permits

the Attorney General to cancel removal not only for aliens

who were lawfully admitted for permanent residence, see §

1229b(a)(1), but also for aliens who are “inadmissible or

deportable from the United States,” see § 1229b(b)(1), if the

alien:

(A) has been physically present in the United States for

a continuous period of not less than 10 years immedi-

ately preceding the date of such application;

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

such period;

(C) has not been convicted of [certain enumerated of-

fenses]; 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

No. 02-3936 9

an alien lawfully admitted for permanent residence.

The statute goes on to specify “special rules relating to con-

tinuous residence of physical presence” in § 1229b(d); it is

the rules specifying the proper treatment of “certain breaks

in presence,” 8 U.S.C. § 1229b(d)(2), that lie at the heart of

Morales’s case:

(2) Treatment of certain breaks in presence

An alien shall be considered to have failed to maintain

continuous physical presence in the United States un-

der 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.

Morales’s petition for cancellation of removal required the

IJ to determine whether, for purposes of 8 U.S.C.

§ 1229b(d)(2), she had “failed to maintain continuous phy-

sical presence in the United States” because she had departed

from the United States for any single period in excess of 90

days or for several periods that in the aggregate exceeded

180 days. If, as the IJ thought, Morales’s illegal reentries

had the effect of starting the clock anew, then she is not

eligible for cancellation of removal. If, on the other hand,

those reentries did not have this effect as a matter of law,

then the IJ’s decision was based on an erroneous foundation.

The number of days Morales was gone was undisputed: she

was out of the country for less than 30 days. The IJ none-

theless decided that she was ineligible under the statute

because, in his view, departures for periods shorter than

those specified in § 1229b(d)(2) could also qualify as breaks

in physical presence for purposes of § 1229b(b)(1)(A).

In reaching this result, the IJ relied on the superseded

“Fleuti doctrine,” under which an alien’s “innocent, casual,

and brief” departure from this country was not a break in

physical presence, see Tapia v. Ashcroft, 351 F.3d 795, 799

(7th Cir. 2003), whereas when an alien left the United

10 No. 02-3936

States “for a reason that is inconsistent with the policies

reflected in this country’s immigration laws, the ‘interrup-

tion of residence thereby occurring would properly be re-

garded as meaningful.’ ” Selimi v. INS, 312 F.3d 854, 859

(7th Cir. 2002) (quoting Rosenberg v. Fleuti, 374 U.S. 449,

462 (1963)). The IJ reasoned that “[i]n light of the ambigu-

ity in the heading” of 8 U.S.C. § 1229b(d)(2)—whose head-

ing is worded “Treatment of certain breaks in presence”

(emphasis added), rather than “Treatment of all breaks in

presence”—“the Fleuti doctrine and the concept of meaning-

fully interruptive departures still exist under the current

law.” As Morales’s “return to the United States could not be

considered casual, and certainly not meaningless,” the IJ

concluded that she could not establish continuous physical

presence and thus was ineligible for cancellation of removal.

The IJ’s analysis fails to take into account the fact that

the Fleuti doctrine was superceded by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (IIRIRA). See

Tapia, 351 F.3d at 799; In re Collado, 21 I. & N. Dec. 1061,

1065 (BIA 1998) (“Thus, we find that the Fleuti doctrine . . .

does not survive the enactment of the IIRIRA as a judicial

doctrine.”). Under the IIRIRA, “[t]he physical presence re-

quirement[ ] . . . does not include the ‘innocent, casual, and

brief’ standard, and instead opts for a quantitative stand-

ard—any absence outside the country for more than 90 days

at a time, or 180 days in total, breaks the physical presence

requirement.” Tapia, 351 F.3d at 799 (emphasis added);

Collado, 21 I. & N. Dec. at 1064 n.4 (noting that the

“previous use of the ‘brief, casual, and innocent’ concept . . .

was not carried forward by Congress in the IIRIRA’s new

cancellation of removal provisions.”). Before this court, the

government has acknowledged that the IJ erred in relying

on the Fleuti doctrine. It is also clear from the facts that

Morales was nowhere near either the 90-day or the 180-day

period established by the statute. We see no warrant for the

No. 02-3936 11

IJ to read this statute as establishing only a maximum

number of days, rather than a bright-line administrative

rule.

The government has attempted to salvage the IJ’s result—

though not his reading of the statute—by arguing that this

was a harmless error in light of the BIA’s subsequent deci-

sion in In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002).

Romalez, which was decided after the IJ’s decision in

Morales’s case but before the BIA’s summary affirmance,

holds that “a departure that is compelled under threat of

the institution of deportation or removal proceedings is a

break in physical presence for purposes of” 8 U.S.C.

§ 1229b(b). Id. at 424.

Romalez helps the government, however, only if it applies

to Morales’s situation. As we explain in more detail below,

it does not. Furthermore, this is a theory that is entirely

absent from the IJ’s opinion, and thus we have no reason to

think that the IJ or the BIA would have extended Romalez to

Morales’s distinctly different circumstances. While govern-

ment counsel may think that there is a good reason to do so,

a lawyer’s arguments cannot substitute for a reasoned

opinion by the IJ or BIA. See Mengistu v. Ashcroft, 355 F.3d

1044, 1046 (7th Cir. 2004) (reiterating that the Chenery

doctrine “forbids the lawyers for an administrative agency to

defend the agency’s decision on a ground different from that

stated or at least discernible in the decision itself”); Florida

Power & Light Co. v. F.E.R.C., 85 F.3d 684, 689 (D.C. Cir.

1996) (“[The agency’s] counsel raises various arguments not

mentioned within or even implied by the orders on review.

But the agency runs this regulatory program, not its

lawyers; parties are entitled to the agency’s analysis of its

proposal, not post hoc salvage operations of counsel.”).

12 No. 02-3936

B

We turn then to Romalez, in which the BIA held that vol-

untary departure under threat of deportation or removal

proceedings constitutes a break in continuous physical pres-

ence. The record contains no evidence that any of Morales’s

voluntary departures occurred under that kind of threat.

Instead, she was simply returned to the border.

In Romalez, the BIA considered an application for can-

cellation of removal submitted by a Mexican citizen who

unlawfully entered the United States in 1984. Romalez, 23

I. & N. Dec. at 423. Romalez departed in 1993 and again in

1994 “under threat of deportation,” but each time remained in

Mexico for only one or two days before unlawfully returning

to the United States. Id. After Romalez was charged with

removability, he applied for cancellation of removal. Id. at

424. The BIA found Romalez ineligible for cancellation of

removal because “a departure that is compelled under

threat of the institution of deportation or removal proceed-

ings is a break in physical presence for purposes of” §

1229b(b)(1)(A). Id. In reaching this result, the BIA con-

cluded that “[t]he statutory language [of § 1229b(d)(2)] does

not literally forgive any single departure of 90 days or less

or aggregate departures of 180 days or less.” Id. at 425. In

particular, § 1229b(d)(2) does not “forgive a departure fol-

lowing an arrest by the Border Patrol with the threat that

formal proceedings will be commenced absent the alien’s

voluntary return to his or her native country.” Id. at 426.

The BIA’s analysis makes clear that its holding in Romalez

applies only to aliens who accept voluntary departure under

threat of deportation or removal proceedings. As the govern-

ment recognizes in its brief before this court, “voluntary

departure” is “a term of art, denoting a form of relief from

removal provided for by statute.” See 8 U.S.C. § 1229c.

Under § 1229c(a)(1), “[t]he Attorney General may permit an

alien voluntarily to depart the United States at the alien’s

No. 02-3936 13

own expense under this subsection, in lieu of being subject

to [removal] proceedings under section 1229a of this title or

prior to the completion of such proceedings . . . .” See also 8

C.F.R. § 240.25 (detailing the scope of the government’s

authority to grant voluntary departure).

In Romalez, the BIA explained that voluntary departure

operates “like a plea bargain,” in that “[t]he alien leaves

with the knowledge that he does so in lieu of being placed

in proceedings. . . . There is no legitimate expectation by

either of the parties that an alien could illegally reenter and

resume a period of continuous physical presence.” 23 I. & N.

Dec. at 429. Because “an order of removal is intended to end

an alien’s presence in the United States,” the BIA

“believe[d] it would be contrary to the very reason for

departure and removal orders, as well as enforced voluntary

departures, to read section [1229b(d)(2)] as preserving the

period of physical presence acquired prior to an enforced

departure for an alien who returns within 90 days of the

enforcement action.” Id. at 426-27 (emphasis added).

The BIA further observed that this result is consistent

with the Attorney General’s regulations implementing the

Nicaraguan Adjustment and Central American Relief Act,

Pub. L. No. 105-100, § 203(b), 111 Stat. 2193, 2198 (1997),

amended by Pub. L. No. 105-139, 11 Stat. 2644 (1997)

(NACARA). These regulations provide that “a period of

continuous physical presence is terminated whenever an

alien is removed from the United States under an order

issued pursuant to any provision of the Act or the alien has

voluntarily departed under the threat of deportation . . . .”

8 C.F.R. § 240.64(b)(3). Thus, the BIA explained, “the Attorney

General has interpreted the continuous physical presence

requirement for NACARA special rule cancellation of re-

moval as being broken or ‘terminated’ by departure under

an order of removal, an order of deportation, or the ‘threat

of deportation.’ ” Romalez, 23 I. & N. Dec. at 428. We therefore

conclude that Romalez establishes only that a voluntary

14 No. 02-3936

departure that occurs under the threat of removal breaks

the alien’s continuous physical presence in the United

States for purposes of establishing eligibility for cancella-

tion of removal.

The three other circuits that have considered Romalez

have likewise done so only in the context of aliens who vol-

untarily departed under threat of deportation or removal

proceedings. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961

(9th Cir. 2003), the Ninth Circuit held that Romalez gov-

erned its review of the BIA’s “determination that [the

petitioner’s] departure from the United States pursuant to

a grant of administrative voluntary departure . . . occa-

sioned a break in his ‘continuous physical presence in the

United States.’ ” Id. at 969. The court emphasized that an

administrative “voluntary departure” occurs “pursuant to

an agreement between Petitioner and the Attorney General

under which Petitioner agreed to depart and not to return

other than in accordance with the entry process applicable

to all aliens.” Id. at 974. The court thus found persuasive

the BIA’s conclusion in Romalez that as “administrative vol-

untary departures [are] in lieu of removal proceedings . . . , it

follow[s] that administrative voluntary departures should

likewise be seen as severing the alien’s physical tie to the

United States.” Id. at 972.

The Fifth and Eighth Circuits have likewise adopted this

approach. In Mireles-Valdez, the Fifth Circuit concluded

that the BIA’s holding in Romalez—“that voluntary depar-

ture under threat of deportation interrupted continuous

presence for cancellation purposes”—was reasonable and,

on this basis, denied the petitioner relief. 349 F.3d at 218.

The court stressed that “voluntary departure, whether of-

fered at the end of immigration proceedings or earlier at the

border (as in this instance), is granted an alien as a form of

clemency in return for his agreeing to relinquish his illegal

presence.” Id. Thus, “[w]hen the Attorney General grants

voluntary departure, the alien cannot later claim that he

No. 02-3936 15

did so while continuing his continuous presence for use in

a future adjudication for discretionary relief.” Id. Most

recently, the Eighth Circuit relied on Romalez’s holding

“that continuous physical presence comes to an end when

an alien voluntarily departs under threat of deportation” in

denying relief to an alien in such a position. Palomino v.

Ashcroft, 354 F.3d 942, 944-45 (8th Cir. 2004).

We have no quarrel with Romalez’s rule that voluntary

departure under threat of deportation or removal proceed-

ings—also referred to by the BIA as “departures made

under threat of the institution of deportation proceedings”—

constitutes a break in continuous physical presence for

purposes of § 1229b(b)(1)(A). See Romalez, 23 I. & N. Dec.

at 425. The question for us, however, is whether this rule

should be extended to voluntary departures that occur with-

out any hint of such a threat. There is absolutely no evi-

dence in the record before us that Morales voluntarily

departed for Mexico under threat of removal or deportation

proceedings. Morales testified that on each of the four

occasions that the U.S. Border Patrol detained her prior to

her final arrest, she never appeared before an IJ and was

never placed in proceedings. Rather, she testified that each

time the Border Patrol “just took me, threw me around, and

turned me back.” When the IJ inquired whether Morales

asked to be returned to Mexico or asked to see a judge,

Morales replied, “I did not ask for anything.” There is no

other evidence in the record regarding the nature of Morales’s

departures following these detentions.

There is a significant difference between Morales’s ac-

count of the Border Patrol simply turning her back at the

border and voluntary departure under threat of removal

proceedings. Under the BIA’s own regulations, “voluntary

departure shall be communicated in writing” and “may not

be granted unless the alien requests voluntary departure

and agrees to its terms and conditions.” 8 C.F.R. § 240.25(c).

Importantly, “[a] voluntary departure order permitting an

16 No. 02-3936

alien to depart voluntarily shall inform the alien of the pen-

alties under [8 U.S.C. § 1229c(d)],” which include a civil

penalty of not less than $1,000.00 and ineligibility for a

period of 10 years for voluntary departure, cancellation of

removal, and permanent residence status if the alien fails

to depart voluntarily within the specified time period. 8

C.F.R. § 240.25(b). Given these elaborate conditions, it is

understandable why the BIA in Romalez described voluntary

departure as “like a plea bargain,” in which “[t]here is no

legitimate expectation by either of the parties that an alien

could illegally enter and resume a period of continuous

physical presence.” 23 I. & N. Dec. at 429. The Ninth

Circuit likewise characterized voluntary departure as occur-

ring “pursuant to an agreement between Petitioner and the

Attorney General.” Vasquez, 343 F.3d at 974; see also

Palomino, 354 F.3d at 945; Mireles, 349 F.3d at 218.

None of these conditions was satisfied in Morales’s case.

She did not enter into any functional “plea bargain” or

“agreement” that would have signified her “knowledge that

[she departed] in lieu of being placed in proceedings,” or

alerted her to the consequences of her illegal return to the

United States after her departure to Mexico. Romalez, 23 I.

& N. Dec. at 429. Nor can we say with confidence that there

was “no legitimate expectation by either of the parties that

[Morales] could illegally reenter and resume a period of

continuous physical presence.” Id. We simply cannot equate

being turned back at the border with a formal voluntary de-

parture or departure under an order of removal or de-

portation. While the latter necessarily breaks continuous

physical presence, the former does not.

Given the stakes associated with voluntary departure,

including both the penalties provided for in § 1229c(d) and

the break in continuous physical presence established by

Romalez, we conclude that this record does not demonstrate

that Morales voluntarily departed under threat of proceed-

ings. When an alien is simply returned to the border

No. 02-3936 17

without voluntarily departing under threat of deportation

or removal proceedings, there is no break in continuous

physical presence for purposes of § 1229b(b)(1)(A).

Before concluding, we consider one more possibility, al-

though this was not fully developed by the government and

thus would not be a proper ground for denying the petition

in any event. Perhaps one might say that Morales was not

“in” the United States at all at the time of these proceed-

ings, because she was at last stopped at the border and

prosecuted for her final effort at entry. See, e.g., Zadvydas

v. United States, 533 U.S. 678, 693 (2001). But that argu-

ment proves too much for the statute we are considering.

No one who needs to invoke § 1229b(b)(1) and (d)(2) has

“entered” the United States lawfully, and everyone seeking

cancellation of removal is in the midst of removal proceed-

ings. The statutes would be a nullity if the lack of lawful

entry made it impossible to establish any period of continu-

ous residence. Moreover, § 1229b(d)(2) contemplates both

departures and further unlawful entries, subject to the 90-

day and 180-day rules. The fact that Morales was prose-

cuted for trying to re-enter simply underscores the fact that

she was not lawfully admitted. At the very least, in the

absence of a fully developed position by the BIA on this

point, we see no reason to carve out Morales’s situation

from the others addressed by the statute. Should the BIA

(as opposed to its lawyers) address this in the future, we

will of course consider its interpretation under whatever

level of deference is appropriate.

We therefore remand to the BIA to determine Morales’s

eligibility for cancellation of removal. On the record as it

stands, it appears that Morales has satisfied the continuous

physical presence requirement. If, however, additional

evidence regarding this issue is available, both sides are

entitled to present such evidence on remand. Finally, as an

aside, we note that the IJ in this case stated that “the

respondent in this case will most likely be able to meet the

18 No. 02-3936

exceptional and extremely unusual hardship factors” for

cancellation of removal, but he refrained from deciding the

issue in light of his finding that Morales had not estab-

lished continuous physical presence.

V

For the reasons stated above, we GRANT Morales’s petition

for review and REMAND her case to the BIA for proceedings

consistent with this opinion.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-15-04