Tapia v. Gonzales

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE DE JESUS TAPIA, 

Petitioner, No. 03-74615

v.

 Agency No.

A79-255-521

ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

May 4, 2005—Portland, Oregon

Filed December 6, 2005

Before: Alfred T. Goodwin and Richard R. Clifton,

Circuit Judges, and John S. Rhoades, Sr.,** District Judge.

Opinion by Judge Clifton

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2).

**The Honorable John S. Rhoades, Sr., Senior United States District

Judge for the Southern District of California, sitting by designation.

15727

TAPIA v. GONZALES 15731

COUNSEL

Phillip Smith (argued) and Raquel E. Hecht, Hecht & Smith,

LLP, Eugene, Oregon, 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.

OPINION

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 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 nec-

essarily 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

1

Cancellation of removal is authorized under 8 U.S.C. § 1229b, which

provides the Attorney General with the authority to exercise discretion to

cancel an alien’s order of removal and adjust the alien’s status to that of

an alien lawfully admitted for permanent residence, provided the alien

establishes certain predicate conditions. The first of those conditions, set

forth at § 1229b(b)(1)(A), is the one at issue here. Specifically, the statute

provides that in order for an alien to be eligible for cancellation of

removal, he must have “been physically present in the United States for

a continuous period of not less than 10 years immediately preceding the

date of such application.”

15732 TAPIA v. GONZALES

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 eligi-

bility 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 inter-

rupt 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.

2

Administrative voluntary departure is “ ‘a term of art, denoting a form

of relief from removal provided for by statute.’ ” Morales-Morales v. Ash-

croft, 384 F.3d 418, 425-26 (7th Cir. 2004) (quoting a brief filed by the

government).

TAPIA v. GONZALES 15733

I. BACKGROUND

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 prog-

ressing to a more senior full-time position at one of the com-

pany’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 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 com-

puter 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, Califor-

nia, 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 resi-

dence under 8 U.S.C. § 1229b(b). Mrs. Tapia prevailed as the

15734 TAPIA v. GONZALES

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 vol-

untary departure terminated the continuity of his physical

presence. 23 I. & N. Dec. at 429. Although the IJ character-

ized 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 adminis-

trative voluntary departure at issue in Romalez-Alcaide, since

in both situations the alien made a choice to depart the coun-

try in lieu of removal proceedings. As a result, the IJ held that

Tapia did not satisfy the ten-year requirement and was not eli-

gible for cancellation of removal. The IJ denied Tapia’s peti-

tion and granted him voluntary departure in lieu of removal.

The BIA affirmed the IJ’s decision without opinion.

II. JURISDICTION

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 indi-

vidual’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).

III. DISCUSSION

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

TAPIA v. GONZALES 15735

IJ’s determination of purely legal questions de novo. Kanka-

malage v. INS, 335 F.3d 858, 861 (9th Cir. 2003).

[1] 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 con-

tinuity of his presence by simply being turned around at the

border upon his attempted reentry); Morales-Morales v. Ash-

croft, 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 physi-

cal 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.

[2] Upon review of the relevant statutory provisions, we

agree that being turned away by immigration officials at the

border while attempting to reenter this county does not itself

have the effect of terminating an alien’s accrual of physical

presence in the United States in the same way that removal or

administrative voluntary departure does.

15736 TAPIA v. GONZALES

Congress initially established the physical presence require-

ment through a 1948 amendment to the Alien Act of 1940.3

Endorsing the amendment, the Senate Judiciary Committee

explained that it was necessary in order to provide an opportu-

nity for relief for individuals who had lived in the United

States for many years, but were deportable on technical

grounds.4 In passing the original amendment Congress explic-

itly recognized that individuals who had resided in the United

States for a substantial period of time were likely to have

established deep roots in the country, which in certain situa-

tions justified an individualized determination by the Attorney

General as to whether deportation would be unduly harsh. See

S. Rep. No. 80-1204, 1948 U.S.C.C.A.N. 2234, 2236 (reason-

ing that as the committee already reviewed selected cases of

deportable aliens who had resided in the United States for

many years and, where appropriate, recommended the enact-

ment of private bills to adjust their immigration status, it was

“only just that other persons in this category who have not

been favored by the introduction of private bills should have

their cases considered for relief”).

Consistent with its intent to provide an opportunity for

relief to aliens who have been long-term residents of this

country, Congress subsequently made clear that the physical

presence requirement should be applied with a degree of flex-

ibility, such that an individual who otherwise meets the

requirement “does not destroy his eligibility by actions that do

not affect his commitment to living in this country.”

Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir. 1995).

It did so in direct response to a decision by the Supreme Court

which interpreted the requirement for “continuous” physical

presence literally. Reviewing a predecessor to the current

§ 1229b, the Court concluded that the requirement of “contin-

3

Act of July 1, 1948, Pub. L. No. 80-863, 62 Stat. 1206, amending the

Alien Registration Act, 54 Stat. 670 (1940).

4

S. Rep. No. 80-1204 (1948), reprinted in 1948 U.S.C.C.A.N. 2234,

2236.

TAPIA v. GONZALES 15737

uous” physical presence meant that an alien could not leave

the country for any reason, no matter how brief, without irrev-

ocably breaking the continuity of his physical presence. INS

v. Phinpathya, 464 U.S. 183, 195-96 (1984).

Congress reacted by amending the statute to include an

explicit exception to the continuous physical presence

requirement for absences that were “brief, casual, and inno-

cent.” The Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, § 315(b), 100 Stat. 3359 (the “1986

amendment”). Introducing the 1986 amendment, Rep. Roybal

explained that it was “the intent of Congress that the require-

ment [of continuous physical presence] not be literally or

strictly construed in light of the recent Supreme Court opinion

that did so. The practical result of the Supreme Court’s opin-

ion is to nullify the suspension of deportation provision, a

result Congress could not have intended.” 130 Cong. Rec.

H16,348 (June 14, 1984). Elaborating, Rep. Frank explained

that “[w]hat we want to say is that if you had no intention of

breaking your residence, but if you left on a brief vacation or

a family problem, that should not make you start from scratch

from the present.” Id. at 16,349.

[3] Congress revised the relevant statute again ten years

later in 1996. The 1996 amendment, which governs this case

and continues to be in effect, is codified at 8 U.S.C.

§ 1229b(d)(2), and titled “Treatment of certain breaks in pres-

ence.” It provides that an alien breaks the continuity of his

physical presence if he departs from the United States “for

any period in excess of 90 days or for any periods in the

aggregate exceeding 180 days.” Although the language pro-

viding an affirmative exception for a “brief, casual, and inno-

cent” absence was dropped in the 1996 revision, by providing

that absence for a period in excess of ninety days breaks the

continuity of physical presence, the statute as amended

plainly indicates that an absence of a shorter duration does not

necessarily break the continuity of presence in this country.

As we reasoned in Vasquez-Lopez, if Congress had intended

15738 TAPIA v. GONZALES

to create a bright line rule in which an absence of any length

interrupts an alien’s continuous physical presence, “it would

have been pointless for it to mandate that absences beyond the

90/180-day period would constitute a break.” 343 F.3d at 972.

[4] Because Congress did not explicitly specify when an

alien absent for less than ninety days may continue to accrue

time toward the continuous physical presence requirement

and when the accrual of time is terminated, we must make

that decision by interpreting the statute in a way consistent

with Congress’s intent. See United States v. Buckland, 289

F.3d 558, 565 (9th Cir. 2002) (en banc) (“Where the language

is not dispositive, we look to the congressional intent revealed

in the history and purposes of the statutory scheme.”) (internal

quotation omitted).

In Vasquez-Lopez we followed the BIA’s reasoning in

Romalez-Alcaide that because an order of removal is intended

to end an alien’s physical presence and because an adminis-

trative voluntary departure is in lieu of removal proceedings

and the entry of an order of removal, “it followed that admin-

istrative voluntary departures should likewise be seen as sev-

ering the alien’s physical tie to the United States.” Vasquez-

Lopez, 343 F.3d at 972. The Vasquez-Lopez decision also

noted that the BIA in Romalez-Alcaide “likened the proceed-

ings” under the statute governing administrative voluntary

departure to a “ ‘plea bargain,’ ” and then quoted the BIA’s

decision to explain its reasoning:

The alien leaves with the knowledge that he does so

in lieu of being placed in proceedings. The clear

objective of an enforced departure is to remove an

illegal alien from the United States. There is no legit-

imate expectation by either of the parties that an

alien could illegally reenter and resume a period of

continuous physical presence.

343 F.3d at 973 (quoting Romalez-Alcaide, 23 I. & N. Dec.

at 429).

TAPIA v. GONZALES 15739

Tapia’s situation is distinguishable. Unlike the alien in

Vasquez-Lopez, Tapia did not depart pursuant to a formalized

process that resulted in an agreement “under which [he]

agreed to depart and not to return other than in accordance

with the entry process applicable to all aliens.” 343 F.3d at

974. Vasquez-Lopez could not resume his prior residence in

the country without violating the agreement he signed with

the government. 8 C.F.R. § 240.25(c). Tapia entered into no

such agreement. That makes a critical difference. See Reyes-

Vasquez, 395 F.3d at 907-08 (observing that those cases in

which a finding of a break in continuous presence has been

upheld, the threat of deportation was clearly expressed and

understood by the alien and the record contained evidence

that the alien was informed of and accepted the terms of his

departure).

Moreover, unlike the alien in Vasquez-Lopez, Tapia was

not statutorily prohibited from immediately reapplying for

admission to the United States. Both removal and administra-

tive voluntary departure bar the alien from seeking readmis-

sion to the United States for a period of years. See 8 U.S.C.

§ 1182(a)(9). To permit an alien who was removed or left pur-

suant to an administrative voluntary departure to continue to

accrue physical presence would thwart Congress’s clear intent

that such an alien be inadmissible for years following the date

of his departure. See Romalez-Alcaide, 23 I. & N. Dec. at 429

(explaining that when an alien departs pursuant to an adminis-

trative voluntary departure there “is no legitimate expectation

by either of the parties that [he] could illegally reenter and

resume a period of continuous physical presence”). Those

statutory bars did not apply to Tapia, however.5 It simply can-

not be said in this case, as it was in Romalez-Alcaide and

Vasquez-Lopez, that there was “ ‘no legitimate expectation by

either of the parties that [the alien] could illegally reenter and

5

Indeed, in his affidavit Tapia claimed he was explicitly told by a border

officer that because he was voluntarily returning to Mexico, it would have

no effect on his ability to return to the United States in the future.

15740 TAPIA v. GONZALES

resume a period of continuous physical presence.’ ” Morales-

Morales, 384 F.3d at 428 (quoting Romalez-Alcaide, 23 I. &

N. Dec. at 429).

[5] We conclude that, for purposes of determining eligibil-

ity for cancellation of removal, Tapia’s physical presence was

not interrupted by the fact that he was initially stopped and

turned around at the border when he attempted to reenter the

country. To hold otherwise would be contrary to Congress’s

intent to imbue the continuous physical presence requirement

with flexibility to accommodate humanitarian objectives, such

as an alien’s brief trip back to his native country after the

passing of a family member, which do not reflect on the

alien’s long-term commitment to this country or the depth of

roots he has established here. An alien’s roots are no less deep

and ties no less interwoven simply because he was stopped at

the border on his initial attempts to reenter this country after

briefly departing on a trip that did not meaningfully interrupt

his relationship with the United States.

[6] The exception for brief absences cannot be denied sim-

ply because an alien attempted to reenter the United States

illegally. If attempting an unlawful reentry precluded applica-

tion of the “brief absence” exception, the statute would have

no meaning. Tapia, like others in his situation facing removal

from this country, was not eligible to come back legally. If he

could have, he presumably would not be facing removal.

[7] Nor would it be logical or consistent with the intent of

the statute to limit eligibility to those returning aliens who

were able to return without being stopped or getting caught on

their first attempt. If we were to conclude that being turned

around at the border in and of itself interrupted an alien’s

physical presence, we would arbitrarily reward those return-

ing aliens who were particularly adept or lucky in their ability

to cross the border without getting stopped. Whether a return-

ing alien can successfully cross into the United States on his

TAPIA v. GONZALES 15741

first try has no relevance to the rationale behind the exception

Congress created for brief breaks in physical presence.

We note that the BIA currently appears to agree with this

analysis. Its decision in Avilez-Nava concerned an alien who

was not successful in returning to the United States on the

first try. That case, like this one, involved the ten-year physi-

cal presence requirement for cancellation of removal. The

alien in that case testified that she had returned to Mexico one

time, for approximately two weeks, to support her mother

after her grandmother died. When she sought to return to the

United States through a port of entry, she was stopped by

immigration authorities, told that she could not enter because

she did not have proper documents, and was then escorted to

a door back across the border and returned to Mexico. She re-

entered illegally two days later. Although the IJ denied her

application for cancellation of removal, the BIA concluded

that her case was distinguishable from Romalez-Alcaide and

sustained her appeal of the IJ’s decision.

[8] Tapia’s photograph and fingerprints were taken by bor-

der officers when he was turned away, and information about

the rejections was entered into the government’s computer

database, but that does not cause us to reach a different con-

clusion. Whether an alien happened to encounter a border

officer who decided to make a record of the turnaround or to

take a photograph or fingerprints of the alien before returning

him to Mexico has no bearing on whether that alien has devel-

oped a significant relationship with the United States through

an extended residency such that he should qualify for an

opportunity to have the Attorney General consider his situa-

tion for possible cancellation of removal.

We recognize that in Avilez-Nava, 23 I. & N. Dec. at 805,

the BIA identified photographs and fingerprints as two types

of evidence which may indicate that an alien was subjected to

“formal, documented process” sufficient to break his continu-

ous physical presence. Id. at 805-06. The BIA did not hold

15742 TAPIA v. GONZALES

that the acts of photographing or fingerprinting themselves

constituted sufficient formal process, however. Indeed, it

could not so hold, given its approval of the Eighth Circuit’s

decision in Reyes-Vasquez, since its own description of

Reyes-Vasquez noted that the alien involved in that case had

been fingerprinted by the Border Patrol. See 23 I. & N. Dec.

at 805.

[9] The making of that kind of record does not amount to

a “formal, documented process pursuant to which the alien

was determined to be inadmissible.” Id. at 801. In contrast to

the informality surrounding a turnaround at the border, where

Congress has authorized immigration officials to make an

actual determination of inadmissibility, it has identified spe-

cific procedures and authorized only certain individuals to

make the determination, not any immigration or border offi-

cer. See 8 C.F.R. §§ 240.25 (administrative voluntary depar-

ture), 235.3 (expedited removal). Nor does the existence of a

record of a turnaround demonstrate that the alien entered into

an agreement not to return to the United States later. There is

no reason that Tapia should be treated differently just because

a record was made when he was turned away.

IV. CONCLUSION

[10] Because Tapia was turned around at the border with-

out entering into a formal agreement with the government

whereby the terms and conditions of his departure were

clearly specified, and because he was not statutorily barred

from immediately reapplying for admission to the United

States, we grant his petition. We do not hold that Tapia has

satisfied the requirement of being continuously present in the

United States, but only that the fact that he was turned around

at the border when he initially attempted to reenter did not

interrupt the continuity of his presence. We therefore remand

this matter to the BIA for further proceedings. To be statu-

torily eligible for cancellation of removal, Tapia must estab-

lish that he meets the ten-year physical presence requirement,

TAPIA v. GONZALES 15743

as well as the other requirements set out in the statute. On

remand both parties are entitled to present additional evidence

regarding any of the predicate eligibility requirements, includ-

ing continuous physical presence.

PETITION GRANTED; REMANDED.