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Interim Decision #3475
In re Hilario ROMALEZ-Alcaide, Respondent
File A74 108 648 - San Diego
Decided May 29, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
For purposes of determining eligibility for cancellation of removal pursuant to section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998),
continuous physical presence is deemed to end at the time an alien is compelled to depart the
United States under threat of the institution of deportation or removal proceedings.
FOR RESPONDENT: David R. Blake, Esquire, Oceanside, California
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Kathleen M. Zapata,
Assistant District Counsel
BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;
SCHMIDT, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE,
GUENDELSBERGER, GRANT, MOSCATO, MILLER, BRENNAN, OSUNA,
OHLSON, and HESS, Board Members. Concurring Opinion: PAULEY, Board
Member. Dissenting Opinion: ROSENBERG, Board Member, joined by
ESPENOZA, Board Member.
FILPPU, Board Member:
We dismiss the respondent’s appeal from a March 16, 1998, decision
denying his application for cancellation of removal under section 240A(b) of
the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (Supp. IV 1998).
We agree with the Immigration Judge that the respondent’s two short
departures from the United States in 1993 and 1994, both under the threat of
deportation, constituted breaks in the respondent’s accrual of continuous
physical presence for purposes of cancellation of removal.
I. FACTUAL AND PROCEDURAL HISTORY
The facts are not in dispute. The respondent is a native and citizen of
Mexico who initially entered the United States in 1984. In January 1993 and
April 1994, he departed the United States under threat of deportation. On
each occasion, the respondent remained in Mexico for a day or 2 and then
unlawfully returned to the United States.
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A Notice to Appear (Form I-862) commencing removal proceedings was
personally served on the respondent and filed with the Immigration Court in
July of 1997. The respondent was charged with removability under section
212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (Supp. III 1997),
because of a 1992 entry he made without having been admitted or paroled
after inspection. The respondent conceded removability from the United
States and applied for cancellation of removal under section 240A(b) of the
Act and voluntary departure under section 240B(b) of the Act, 8 U.S.C.
§ 1229c(b) (Supp. III 1997). But for his two very short departures under the
threat of deportation, the respondent satisfied the “continuous physical
presence” requirement for cancellation of removal.
The Immigration Judge found that the respondent had failed to meet both
the 10-year continuous physical presence requirement and the “exceptional
and extremely unusual hardship” requirement for cancellation of removal, and
he concluded that the respondent did not merit such relief as a matter of
discretion. However, the Immigration Judge granted the respondent’s request
for voluntary departure. The respondent’s timely appeal challenges only the
denial of his application for cancellation of removal.
II. ISSUE
We confine our inquiry to whether the respondent has accrued the 10 years
of continuous physical presence needed for cancellation of removal. We
reject his contention that the special rule set forth in section 240A(d)(2) of the
Act is the exclusive measure of what constitutes a break in continuous
physical presence. We hold 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 section 240A(b)(1)(A) of the Act. 1
III. RELEVANT STATUTE
Section 240A(b)(1)(A) of the Act provides that the Attorney General may
cancel removal and adjust an alien’s status to that of a lawful permanent
resident if, among other requirements, the alien “has been physically present
in the United States for a continuous period of not less than 10 years
immediately preceding the date” of the application for cancellation of
removal.
Section 240A(d) of the Act sets forth special rules relating to continuous
residence and continuous physical presence. The respondent argues that his
departures are not “breaks” in presence because they do not run afoul of
these special rules. Section 240A(d)(2) provides as follows:
1
The United States Court of Appeals for the Tenth Circuit noted, but did not resolve, a
related issue in Rivera-Jimenez v. INS, 214 F.3d 1213 (10th Cir. 2000).
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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) 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.
IV. ANALYSIS
A. Statutory Language
We start with the language of the statute itself. Section 240A(b)(1)(A)
requires an alien to have “been physically present in the United States for a
continuous period of not less than 10 years immediately preceding” the
application. Absent further statutory qualification or exception, this
“continuous physical presence” requirement does not permit an applicant to
make any departures whatsoever from the United States during the qualifying
period.
In this respect, the statute parallels its predecessor suspension of
deportation provisions at section 244(a) of the Act, 8 U.S.C. § 1254(a)
(1982). For example, former section 244(a)(1) specified, in part, that an
applicant for suspension of deportation must have “been physically present
in the United States for a continuous period of not less than seven years
immediately preceding the date” of the application. In INS v. Phinpathya,
464 U.S. 183 (1984), the United States Supreme Court ruled that the literal
language of this identically worded predecessor provision permitted no
exception for departures of any character.
Congress responded to the Supreme Court’s Phinpathya ruling by creating
an exception for “brief, casual, and innocent” departures in former section
244(b)(2) of the Act, 8 U.S.C. § 1254(b)(2) (Supp. IV 1986). This early
exception to the rigors of absolutely uninterrupted physical presence has been
replaced by the more objective provisions of section 240A(d)(2) of the Act.
On the strength of the current statutory exception, the respondent argues that
any departure of 90 days or less does not break continuous physical
presence, including a departure made under threat of the institution of
deportation proceedings.
The statutory language, however, does not literally forgive any single
departure of 90 days or less or aggregate departures of 180 days or less.
Further, it does not purport to be the exclusive rule respecting all departures.
Rather, as its caption announces, it addresses the treatment of “certain
breaks” in presence, strongly implying that there can be “breaks” other than
those which exceed the 90- or 180-day statutory limits. Section 240A(d)(2)
of the Act.
The statute also directs that an alien “shall be considered to have failed to
maintain continuous physical presence” by a departure exceeding 90 days or
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Interim Decision #3475
aggregate departures exceeding 180 days. Id. The objective command that
departures of certain lengths “shall” break continuous physical presence
implies that shorter departures are acceptable, but it does not specifically
exempt all such shorter departures. It does not, for example, formally exempt
a departure of 90 or fewer days resulting from enforcement of an order of
removal under current law or an order of deportation under prior law. Nor,
as in this case, does it specifically forgive a departure following 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.
Thus, the literal language of the statute provides support by implication for
the arguments of both the Immigration and Naturalization Service and the
respondent, but it does not, by itself, answer the question raised in this case.
We must therefore look beyond the language of section 240A itself.
B. Statutory Effect of Removal
The statute as a whole does not support the respondent’s contention that
section 240A(d)(2) of the Act preserves an alien’s eligibility for cancellation
of removal for any departure of 90 days or less. Specifically, section
241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5) (2000), provides that an alien who
departs the country under an order of removal and unlawfully reenters the
United States “may not apply for any relief under this Act.” Thus, pursuant
to this section of the statute, upon reentry the alien is barred from seeking
cancellation of removal, even if he returns within 90 days.2
Under the respondent’s construction of the statute, an alien who departed
under a formal order of removal could nevertheless retain eligibility for
cancellation of removal, despite this statutory bar to all relief for persons who
illegally return after being removed. This would be possible if the removed
alien returned lawfully within 90 days of the execution of an order of
removal, for example, as a nonimmigrant with the necessary waivers to obtain
urgent medical care. Although such an outcome is not foreclosed by the
literal language of the statute, it would be inconsistent with the purpose of
both removal and admission in most nonimmigrant categories.
An order of removal is intended to end an alien’s presence in the United
States, as was an order of deportation under prior law. As the Supreme Court
has noted, the “obvious purpose of deportation is to terminate residence.”
Mrvica v. Esperdy, 376 U.S. 560, 568 (1964) (holding that departure under
2
The courts appear divided over whether section 241(a)(5) of the Act applies to orders of
deportation issued under prior law. Compare Bejjani v. INS, 271 F.3d 670, 687 (6th Cir.
2001) (holding that section 241(a)(5) did not apply to a reentry taking place before its
enactment), and Castro-Cortez v. Reno, 239 F.3d 1037 (9th Cir. 2001) (same), with
Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001) (applying section 241(a)(5) to
an entry occurring under prior law where there was no showing of detrimental reliance on prior
law).
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an order of deportation terminates “residence” for purposes of relief under
section 249 of the Act, 8 U.S.C. § 1259 (1964)). Furthermore, admission as
a nonimmigrant generally contemplates the alien’s departure after the
authorized period of stay ends or the purpose of the trip is completed. We
therefore believe it would be contrary to the very reason for deportation and
removal orders, as well as enforced voluntary departures, to read section
240A(d)(2) of the Act 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. 3
C. Related Regulations
The respondent’s proposed reading of section 240A(d)(2) is also not
consistent with the Attorney General’s regulations governing the continuous
physical presence requirement for special rule cancellation of removal. See
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, § 309(f), 110 Stat. 3009-546 (“IIRIRA”),
as amended by Nicaraguan Adjustment and Central American Relief Act,
Pub. L. No. 105-100, tit. II, § 203(b), 111 Stat. 2193, 2198 (1997), amended
by Pub. L. No. 105-139, 111 Stat. 2644 (1997) (“NACARA”).
Applicants for special rule cancellation of removal under the NACARA
are subject to either a 7-year or 10-year continuous physical presence
requirement consistent with the suspension of deportation provisions of prior
law. They are also exempted from the so-called “stop-time” provisions of
section 240A(d)(1) of the Act, which would halt the accrual of continuous
presence upon, for example, the service of a Notice to Appear. Departures
from the United States by applicants for NACARA special rule cancellation,
however, are not governed by the “brief, casual, and innocent” rule of former
law. Instead, the 90- and 180-day provisions of section 240A(d)(2) apply to
departures made by special rule cancellation applicants, just as section
240A(d)(2) applies to the case now before us.
3
We have previously drawn a distinction between departures pursuant to an order of
deportation and voluntary departures under the threat of deportation in the context of assessing
“residence” for purposes of determining eligibility for relief under section 249 of the Act. See
Matter of Contreras-Sotelo, 12 I&N Dec. 596 (BIA 1967) (holding that voluntary departure
after commencement of deportation proceedings, but before a deportation order, does not
break “residence” under section 249); Matter of Young, 11 I&N Dec. 38 (BIA 1965) (holding
that voluntary departure under threat of deportation does not break “residence” under section
249). We need not revisit those decisions here, except to note that we have not drawn any
such distinction on the issue of continuous physical presence. Matter of Barragan, 13 I&N
Dec. 759 (BIA 1971) (holding that a voluntary departure in lieu of the institution of formal
deportation proceedings was a meaningful departure that broke physical presence for
suspension of deportation purposes), aff’d, Barragan-Sanchez v. Rosenberg, 471 F.2d 758
(9th Cir. 1972).
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Importantly, in the context of the NACARA, 8 C.F.R. § 240.64(b)(3)
(2001) provides 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 or when the departure is made for
purposes of committing an unlawful act.
Therefore, the Attorney General has interpreted the continuous physical
presence requirement for NACARA special rule cancellation of removal as
being broken or “terminated” by departure under an order of removal, an
order of deportation, or the “threat of deportation.” Id. This regulation
conflicts with the respondent’s construction of section 240A(d)(2), even
though the regulation specifically applies only in the context of NACARA
applications. Indeed, it is not apparent how we could find the respondent
eligible for cancellation of removal without adopting a construction of the
statute that is directly at odds with the position adopted by the Attorney
General in 8 C.F.R. § 240.64(b)(3).
D. Prior Law
Under prior law, a voluntary departure under threat of deportation was
considered a break in continuous physical presence and was treated the same
as a departure pursuant to an order of deportation. See Hernandez-Luis v.
INS, 869 F.2d 496, 498 (9th Cir. 1989); McColvin v. INS, 648 F.2d 935 (4th
Cir. 1981); Vargas-Gonzalez v. INS, 647 F.2d 457, 458 (5th Cir. 1981);
Segura-Viachi v. INS, 538 F.2d 91 (5th Cir. 1976); Matter of Barragan,
13 I&N Dec. 759 (BIA 1971), aff’d, Barragan-Sanchez v. Rosenberg,
471 F.2d 758 (9th Cir. 1972); see also INS v. Rios-Pineda, 471 U.S. 444, 450
n.2 (1985).
In this respect, former section 242(b) of the Act, 8 U.S.C. § 1252(b)
(1994), in addition to providing for deportation hearings, allowed certain
aliens who admitted their deportability to leave voluntarily without the need
for formal proceedings. Former section 242(b) provided, in pertinent part, as
follows:
In the discretion of the Attorney General, and under such regulations as he may prescribe,
deportation proceedings, including issuance of a warrant of arrest, and a finding of
deportability under this section need not be required in the case of any alien who admits to
belonging to a class of aliens who are deportable under section 241 if such alien voluntarily
departs from the United States at his own expense, or is removed at Government expense
as hereinafter authorized, unless the Attorney General has reason to believe that such alien
is deportable under paragraph (2), (3), or (4) of section 241(a).4
4
Similar authority exists today in section 240B(a)(1) of the Act, 8 U.S.C. § 1229c(a)(1)
(2000).
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The respondent’s departures in 1993 and 1994 were governed by these
provisions, which counsel for the respondent characterized below as “like a
plea bargain.” 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 legitimate
expectation by either of the parties that an alien could illegally reenter and
resume a period of continuous physical presence.
The respondent’s departures under the threat of proceedings broke his
presence under the law in effect at the time those departures occurred. The
statute has since changed, and the “brief, casual, and innocent” test of prior
law no longer applies in ordinary cancellation of removal cases. But we do
not read the enactment of the more objective measures contained in section
240A(d)(2) as having inadvertently negated the effect of the respondent’s
departures for purposes of accruing continuous physical presence.
E. Legislative History
We have uncovered nothing in the legislative history to the IIRIRA that
substantially helps to resolve this case. In general, however, Congress sought
to deter illegal immigration to the United States by curbing the incentive for
aliens to extend their stays in this country and prolong their cases in order to
gain immigration benefits. See H.R. Rep. No. 104-828 (1996), 1996
WL 563320; see also H.R. Rep. No. 104-469(I) (1996), 1996 WL 168955.
We deem it contrary to the overall objectives of the IIRIRA to allow an alien
to continue to accrue time for purposes of obtaining relief after the alien
departs under a formal order of deportation or removal, or under the threat of
such an order.
V. CONCLUSION
In sum, we find that the respondent’s departures under threat of deportation
broke his continuous physical presence in this country. Consequently, he
cannot meet the 10-year continuous presence requirement for cancellation of
removal. See section 240A(b)(1)(A) of the Act. Our holding is consistent
with the literal language of the statute. It is also supported by the statutory
purpose behind enforcement actions, by the Attorney General’s regulatory
interpretation of the continuous presence requirement for special rule
cancellation, and by the historical treatment of such breaks under prior law.
Consequently, the Immigration Judge correctly denied the respondent’s
application for cancellation of removal.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the Immigration Judge’s order and
conditioned upon compliance with conditions set forth by the Immigration
Judge and the statute, the respondent is permitted to voluntarily depart from
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Interim Decision #3475
the United States, without expense to the Government, within 30 days from
the date of this order or any extension beyond that time as may be granted by
the district director. See section 240B(b) of the Act; 8 C.F.R.
§§ 240.26(c), (f) (2000). In the event the respondent fails to so depart, the
respondent shall be removed as provided in the Immigration Judge’s order.
NOTICE: If the respondent fails to depart the United States within the
time period specified, or any extensions granted by the district director, the
respondent shall be subject to a civil penalty of not less than $1,000 and not
more than $5,000, and shall be ineligible for a period of 10 years for any
further relief under section 240B and sections 240A, 245, 248, and 249 of the
Act, 8 U.S.C. §§ 1229b, 1255, 1258, 1259 (2000). See section 240B(d) of
the Act.
CONCURRING OPINION: Roger A. Pauley, Board Member
I. BACKGROUND
The majority have determined that the respondent’s “voluntary” departure
from the United States, under threat of the institution of removal proceedings,
constitutes a break in presence that renders the respondent ineligible to
satisfy the continuous physical presence requirement for cancellation of
removal under section 240A(b)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b)(1) (2000). Were it not for 8 C.F.R. §§ 240.64(b)(2) and
(3) (2001), I would have filed an opinion concurring only in the result.
Because of the regulations, I find that I am constrained also to concur in the
opinion insofar as it relies on those provisions.1 I write, however, to express
my doubts that these regulations, which were promulgated under the previous
Attorney General, are consistent with the statute and to set forth an alternative
approach that I believe is more consistent with the statutory scheme.
The cited regulations apply only to certain aliens from certain Central
American and Eastern European nations for whom Congress enacted, in the
so-called NACARA statute,2 especially favorable provisions enabling them
to qualify for relief from deportation or removal. Such provisions include the
inapplicability of the “stop-time rule” for purposes of establishing the
requisite period of continuous physical presence and (as implemented by
subsequent regulations as to the Central American group of aliens) a
1
It is settled that a “regulation promulgated by the Attorney General has the force and effect
of law as to this Board and immigration judges, and neither has any authority to consider
challenges to regulations implemented by the Attorney General, any more than there is
authority to consider constitutional challenges to the laws we administer.” Matter of Fede,
20 I&N Dec. 35, 36 (BIA 1989); see also Matter of C-, 20 I&N Dec. 529, 532 (BIA 1992).
2
Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II,
111 Stat. 2193, amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997).
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rebuttable presumption of extreme hardship. See 8 C.F.R. § 240.64(d). The
regulations insofar as here pertinent provide as follows:
For purposes of this subpart H, a single absence of 90 days or less or absences which
in the aggregate total no more than 180 days shall be considered brief.
....
(2) For applications for special rule cancellation of removal made under section 309(f)(1)
of IIRIRA, as amended by NACARA, the applicant shall be considered to have failed to
maintain continuous physical presence in the United States if he or she has departed from
the United States for any period in excess of 90 days or for any periods in the aggregate
exceeding 180 days. The applicant must establish that any period of absence less than
90 days was casual and innocent and did not meaningfully interrupt the period of
continuous physical presence in the United States.
(3) For all applications made under this subpart, 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 or when the departure is made for purposes of committing an unlawful
act.”
8 C.F.R. § 240.64(b) (emphasis added).
No regulation comparable to the italicized portions quoted above exists
with respect to aliens applying for the generally applicable cancellation of
removal relief that is at issue in this case. When the quoted regulations were
initially published for comment in 1998, a number of commenters suggested
that, in light of the ameliorative purposes of the NACARA, the regulations
did not go far enough; and that it was contrary to the statute to disqualify a
special rule cancellation of removal applicant based upon the nature of his or
her absences. Responding to these arguments, the Department of Justice
stated as follows:
Neither NACARA nor the Act, as amended by IIRIRA, 3 precludes such an evaluation, and
when the 90/180-day rule is read within the context of immigration reform under IIRIRA,
it is apparent that Congress intended certain kinds of departures, such as those made in
furtherance of criminal offenses, to terminate continuous physical presence.
Suspension of Deportation and Special Rule Cancellation of Removal for
Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc
3
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.
L. No. 104-208, 110 Stat. 3009-546. As part of the IIRIRA, Congress enacted section
240A(d)(2) of the Act, which provides that
an alien shall be considered to have failed to maintain continuous physical presence in the
United States under subsections (b)(1) and (b)(2) [setting forth, inter alia, the relief of
cancellation of removal for certain nonpermanent resident aliens, the successor to
suspension of deportation relief under the previous Act] 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.
The provision was made applicable retrospectively to certain suspension of deportation
applicants through the so-called “transitional rules,” which were set forth in section 309(c)(5)
of the IIRIRA, 110 Stat. at 3009-627.
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Countries, 64 Fed. Reg. 27,856, 27,863 (1999). Specifically alluding to
8 C.F.R. § 240.64(b)(3), the Department also noted that that regulation
“identifies specific departures that have long been considered to break
continuous physical presence in the context of suspension of deportation
adjudications.” Id.
III. MAJORITY’S HOLDINGS
The Department of Justice, in fashioning the above-quoted regulations
applicable to NACARA applicants—a category of aliens whom Congress
believed deserving of more generous treatment under the cancellation of
removal statutes than other applicants—nevertheless determined that such
NACARA applicants’ continuous physical presence was interrupted upon a
“voluntary” departure under threat of deportation proceedings, or one made
with intent to commit an unlawful act. The majority therefore correctly
conclude that the necessary implication from the regulations is that ordinary,
non-NACARA applicants for cancellation of removal relief under section
240A(b)(1) of the Act, such as the respondent in this case, are also subject
to this regulatory interpretation. 4
The majority also rely on another ground, in which I cannot concur, for
reaching their result, namely section 241(a)(5) of the Act, 8 U.S.C.
§ 1231(a)(5) (2000), which provides that an alien who reenters the United
States “illegally after having been removed or having departed voluntarily,
under an order of removal,” is ineligible for any relief. Section 241(a)(5) of
the Act, properly read, in no way supports the majority’s approach. The
majority’s argument that the existence of section 241(a)(5) is an independent
ground for its holding that a coerced “voluntary” departure, not under order,
breaks continuous physical presence depends on an extraordinary
construction of that statute. The majority reach their conclusion by first
essentially reading out of the statute its clear requirement that an alien have
returned “illegally” in order to be ineligible for any relief. Thus enabled by
this ipse dixit removal of this impediment from the scene,5 they then argue
4
The dissenting opinion of Board Member Rosenberg would escape the force of the
regulations because they are not in terms applicable “to an applicant for regular cancellation
of removal.” Matter of Romalez, 23 I&N Dec. 423, 444 (Rosenberg, dissenting). But her
opinion gives no reason, or conceivable explanation, why the Attorney General would wish the
regulations, which apply a strict interpretation of the break-in-presence statute to the favored
class of NACARA special rule cancellation of removal applicants, not also to apply to regular
cancellation applicants such as the respondent. In these circumstances, I believe the
regulations are binding upon the Board and may not be disregarded.
5
The majority state that while “such an outcome” (i.e., that an alien who lawfully returns to
this country following his ordered removal retains eligibility for cancellation relief) “is not
foreclosed by the literal language of the statute,” which appears to be rather an understatement,
(continued...)
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that a coerced “voluntary” departure not under order is the equivalent of an
ordered departure for purposes of interrupting previously acquired physical
presence time. But Congress attached disability for relief consequences only
to an alien’s violation of an ordered departure and, even then, despite the
majority’s inexplicable willingness to disregard section 241(a)(5)’s plain
language, only when the alien returns illegally. Unlike the majority, I would
give effect, as do the regulations,6 to Congress’s inclusion of the term
“illegally” in section 241(a)(5) and thus draw the opposite conclusion that no
such equivalence exists between ordered departures under that statute and
coerced “voluntary” departures not under order as regards the ability of an
alien to preserve accrued continuous physical presence time for cancellation
of removal relief. Therefore, in my view, the sole defensible basis for the
majority’s holding that the respondent’s “voluntary” departure interrupted his
continuous presence so as to render him ineligible for cancellation of removal
is the above-quoted regulations at 8 C.F.R. §§ 240.64(b)(2) and (3).
IV. PROBLEMS WITH THE REMAINING APPROACH
BASED ON THE REGULATIONS
But the difficulty with the regulations, from a statutory construction
standpoint, is that they are founded on nothing more than speculation that
because a “voluntary” departure under threat of removal proceedings (and all
other less than 90-day departures that were noncasual or noninnocent under
prior law, though these are not before us in this case) was of a type long
considered to break continuous physical presence, Congress could not have
intended to eliminate this basis for finding a break in presence when it
enacted the 90/180-day break-in-presence statute in 1996 as part of the
IIRIRA. To the contrary, I believe that that is exactly what Congress intended
to do, and did, and that its intent is reflected in the statutory scheme.
The regulations (the soundness of which the majority opinion does not
question) continue the former “brief, casual, and innocent” test for
determining whether an alien’s departure constituted a break in continuous
physical presence, bowing only to Congress’s enactment of section
240A(d)(2) as a substitute for the “brief” component of that test. Indeed, the
final sentence of 8 C.F.R. § 240.64(b)(2), set forth above, plainly reflects a
view that, although Congress allowed the statute that embodied the “brief,
5
(...continued)
such a reading “would be inconsistent with the purpose of both removal and admission in most
nonimmigrant categories.” Matter of Romalez, supra, at 426. The “literal” meaning, however,
is the reading accorded the statute in the regulations. See 8 C.F.R. § 241.8(a)(3) (2001)
(instructing immigration officers in making a determination whether an alien has returned
unlawfully).
6
See supra note 5.
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casual, and innocent” standard (former section 244(b)(2) of the Act, 8 U.S.C.
§ 1254(b)(2) (1994)) to expire in the IIRIRA, it nevertheless intended the
“casual” and “innocent” branches of that statute to survive and continue in
full force.7
This is a remarkable conclusion and one that, as the dissenting opinion
points out, is at odds with dicta in a prior decision of the Board.8 The
regulation assumes, in effect, that Congress’s failure to carry forward the
relevant provisions of former section 244(b)(2) of the Act was an oversight.
I cannot agree. Instead, as it is undeniable that former section 244(b)(2) was
not carried forward by the IIRIRA but was allowed to lapse, it seems an
unavoidable conclusion that that statute is inapplicable here and should not
have been effectively restored, as to its “casual” and “innocent” branches, by
the regulations. This is particularly so because, as will be shown in the final
segment of this opinion, giving effect to the elimination of the “casual” and
“innocent” test for less than 90-day departures results in a perfectly
reasonable (even preferable) scheme. Indeed, had Congress desired the
outcome reflected in the regulations and the majority’s approach, it would
have been a relatively simple drafting task to have retained section 244(b)(2),
alongside the new break-in-presence provision in section 240A(d)(2), by
merely dropping the term “brief” (with conforming editorial changes) from old
section 244(b)(2). Congress’s failure to do this is powerful evidence—
7
The majority opinion’s disregard of 8 C.F.R. § 240.64(b)(2), and its implicit attempt to
narrow the scope of its opinion as one that decides only that, by virtue of 8 C.F.R.
§ 240.64(b)(3), a forced “voluntary” departure constitutes a break in presence, is
unsupportable. The two regulations are not severable but rather are inextricably intertwined.
Indeed, subparagraph (b)(3), on which the majority relies, reflects merely a specific application
and clarification of subparagraph (b)(2) and is subordinate to it. Therefore, the majority
cannot reasonably assert (much as they might wish to) that adherence to the regulations
requires that the “casual” and “innocent” tests be deemed only partially resurrected insofar as
coerced “voluntary” departures under 8 C.F.R. § 240.64(b)(3) are concerned. Rather, because
of the linkage between subparagraphs (b)(2) and (b)(3), it is a case of “in for a penny, in for
a pound.” Giving effect to the cited regulations (as we must, see supra notes 1, 4) undeniably
means accepting that the “casual” and “innocent” doctrine is deemed resurrected, with respect
to departures of less than 90 days, in its full force and extent.
My assertion above that subparagraph (b)(3) is subordinate to subparagraph (b)(2) seems
obvious on the face of the provisions. I note further that although it is arguable that
subparagraph (b)(3) was even unnecessary, its inclusion may have reflected a desire to make
certain (even though no court appears to have held to the contrary under the old “brief, casual
and innocent” test) that all judges would continue to construe the particular kinds of departures
there described (i.e., “voluntary” departures under threat of the commencement of deportation
proceedings and departures undertaken with intent to perform an illegal act) as not “innocent”
under the standard announced in subparagraph (b)(2). Moreover, subparagraph (b)(3) covers
suspension applications as well as special rule cancellations (i.e., it reaches “all applications
made under this subpart”), whereas subparagraph (b)(2) covers only the latter type of
applications.
8
See Matter of Collado, 21 I&N Dec. 1061, 1064 n.4 (BIA 1998).
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particularly when coupled, as the majority concedes, with the absence of any
legislative history to the contrary—of its intent not to carry forward the
“casual” and “innocent” branches of the prior statute, notwithstanding the
contrary conclusion reflected in 8 C.F.R. § 240.64(b)(2), which requires
applicants for special cancellation of removal under the NACARA to prove
that “any period of absence less than 90 days was casual and innocent and
did not meaningfully interrupt the period of continuous physical presence in
the United States.”
Former section 244(b)(2) of the Act provided, in similar terms, as follows:
An alien shall not be considered to have failed to maintain continuous physical presence
in the United States under paragraphs (1) and (2) of subsection (a) [setting forth the
suspension of deportation remedy] if the absence from the United States was brief, casual,
and innocent and did not meaningfully interrupt the continuous physical presence.
Under this statute, the history of which is well known,9 the federal courts
experienced no problem (as the majority also observe) in concluding that
departures such as that made by the respondent were not “brief, casual, and
innocent.” E.g., Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir. 1989)
(“The precise parameters of the brief, casual, and innocent exception are
unsettled. . . . It is quite clear, however, that a voluntary departure under
threat of coerced deportation is not a brief, casual, and innocent absence from
the United States.”); accord Rivera-Jimenez v. INS, 214 F.3d 1213, 1218
(10th Cir. 2000); McColvin v. INS, 648 F.2d 935, 939 (4th Cir. 1981). But
the implication from the clear import of former section 244(b)(2) of the Act
is plain—namely, had Congress wanted to achieve a continuation of this
doctrine and result, it could readily have done so. I am therefore constrained
to conclude that, contrary to the assumption implicit in the regulations
applicable to NACARA applicants for cancellation,10 former section
9
The United States Supreme Court created the “brief, casual, and innocent” test in Rosenberg
v. Fleuti, 374 U.S. 449 (1963), applicable to determinations whether an alien had made an
“entry” under the Act. Some lower courts then began to apply the “brief, casual, and
innocent” standard to the suspension of deportation statute. But in INS v. Phinpathya,
464 U.S. 183 (1984), the Supreme Court ruled that the Fleuti exception was irrelevant to the
suspension statute and that any departure of an alien from the United States was sufficient to
break the requisite continuous physical presence. Congress responded in 1986 by enacting
section 244(b)(2) of the Act, 8 U.S.C. § 1254(b)(2) (Supp. IV 1986), expressly making the
“brief, casual, and innocent” test applicable in suspension cases. See H.R. Rep. No. 99-682(I),
§ 315(b) (1986), 1986 WL 31950, at *78.
10
As observed earlier, the regulations that form the linchpin of the majority’s holding proceed
from the premise that, because of the longstanding nature of the interpretation of continuous
physical presence as being broken by a coerced “voluntary” departure, Congress could not
have intended so readily to discard that practice. But as demonstrated previously, see supra
note 9, the doctrine is not of hoary lineage. Moreover, it is somewhat telling that, on the only
previous occasion when Congress chose to speak on the question of what constitutes a break
(continued...)
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244(b)(2) and the above line of authority that construes it have no relevance
to, and ought not (save for the binding nature of the regulations vis à vis the
Board) to be employed in this case, because former section 244(b)(2) was
extinguished when the IIRIRA took effect.11
V. A SUGGESTED APPROACH
Like its predecessor form of relief, suspension of deportation, the new
cancellation of removal remedy is ultimately discretionary. See, e.g., section
240A(b)(1) of the Act (“The Attorney General may cancel removal of, and
adjust to the status of an alien lawfully admitted for permanent residence, an
alien who . . . .”) (emphasis added). I contend that Congress meant to have
10
(...continued)
in presence as pertains to suspension of deportation for nonpermanent resident aliens, it did
so in a manner that occupied the field. That is, former section 244(b)(2) of the Act formed
the only standard for determining whether a break in presence existed, in order to establish the
requisite years of continuous physical presence as an element of eligibility for suspension
relief. There is no reason to think that, in enacting section 240A(d)(2) of the Act and allowing
former section 244(b)(2) to expire, Congress meant to do other than have the new IIRIRA
provision likewise occupy the field (i.e., act as a substitute for section 244(b)(2), not as a
supplement to that statute as the regulations reflect and the majority evidently believe) in terms
of determining whether a break in presence existed for purposes of establishing continuous
physical presence under the new relief known as cancellation of removal (which likewise
substituted for the former suspension of deportation remedy).
Contrary to the majority opinion, nothing can be read into the title of the IIRIRA break-inpresence provision, i.e., “Treatment of Certain Breaks in Presence.” See section 240A(d)(2)
of the Act. Use of the adjective “certain” does not imply, in context, that other breaks in
presence may interrupt continuous physical presence, as the majority assert, but only that
other breaks in presence, e.g., of shorter length, exist.
11
If the regulations at 8 C.F.R. §§ 240.64(b)(2) and (3) are disregarded, it is an interesting and
difficult question, although one of diminishing practical importance, whether former section
244(b)(2) of the Act applies to cases to which, by virtue of the so-called “transitional rules”
established in section 309(c)(5) of the IIRIRA, Congress provided that the new break-inpresence provision applies retrospectively. See Rivera-Jimenez v. INS, supra (which
considered the issue without regard to the regulations, of which we may presume the court was
unaware). The argument in favor of such application is straightforward: Congress did not
expressly repeal section 244(b)(2) when it enacted the IIRIRA, and because repeals by
implication are not favored, the old Fleuti-derived test should be deemed to survive, along with
the new 90/180-day standard for breaks in presence, until the effective date of the IIRIRA.
The contrary argument is that to so hold would ascribe to Congress an intent that aliens subject
to the retroactive application of the new IIRIRA provision be treated more harshly than aliens
subject only to the IIRIRA after its effective date, a result that seems in tension with
Congress’s intent in the IIRIRA generally to toughen the standards by which nonpermanent
resident aliens can become eligible for suspension of deportation-type relief through the new,
harder to establish cancellation of removal requirements. Moreover, the argument runs, the
usual presumption against repeals by implication applies with lesser force in this context,
because the question is not whether Congress intended to eliminate section 244(b)(2), but only
when.
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Immigration Judges and the Board, as the delegated instruments for exercising
the Attorney General’s discretion, see, e.g., 8 C.F.R. §§ 3.1(a), (g), 3.10
(2001), determine whether departures of an alien from the United States that
do not constitute a break in presence by virtue of their length alone, as
provided in section 240A(d)(2), should nonetheless disqualify the alien from
cancellation relief as a matter of discretion. 12 See Rivera-Jimenez v. INS,
supra, at 1218 (describing as “irrelevant” an alien’s “voluntary” departure of
less than 90 days under threat of deportation, because of the applicability of
the 90/180-day break-in-presence statute to suspension claims governed by
the transitional rules). 13 Before adumbrating the advantages of this approach
as compared to the majority’s interpretation,14 it is appropriate briefly to
address the counterargument that, under this approach, even an alien who
departed under an order of deportation would be eligible for cancellation
relief and that this cannot be what Congress intended. I agree that Congress
could not have intended the result that an alien retains eligibility for
cancellation relief despite such a departure.
Congress effectively dealt with this circumstance, I submit, in section
241(a)(5) of the Act, discussed earlier, by providing, in more general terms,
that an alien who “has reentered the United States illegally after having been
removed or having departed voluntarily, under an order of removal, . . . may
not apply for any relief under this Act.” Section 241(a)(5) of the Act
(emphasis added). Thus, although a departure under an order of removal
would not technically constitute a break in presence under my suggested
12
As the majority opinion observes, no legislative history attends the elimination of former
section 244(b)(2) of the Act, so Congress’s reasons for taking this action can only be the
subject of conjecture. Nonetheless, it is not hard to discern the possible reasons. The courts
of appeals generally reached widely divergent results in applying the old “brief, casual, and
innocent” test (even though, as earlier noted, not with respect to the effect of a coerced
“voluntary” departure). See, e.g., Jubilado v. INS, 819 F.2d 210 (9th Cir. 1987) (holding that
a departure of more than 90 days in order to bring family to the United States was not an
entry); Munoz-Casarez v. INS, 511 F.2d 947 (9th Cir. 1975) (holding that a 30-day departure
to visit family constituted an entry). The substitution of a simple, objective standard based on
length of departure alone, in order to determine whether a departure interrupted an alien’s
continuous presence, may well have been thought an improvement that would bring greater
certainty and consistency in application to this aspect of immigration law.
13
The court went on, however, in somewhat schizophrenic fashion, to remand the case to the
Board for its interpretation in the first instance of section 240A(d)(2) of the Act as applied to
a less than 90-day “voluntary” departure of the type at issue in this case. Rivera-Jimenez v.
INS, supra, at 1218. Hence, while suggesting its disagreement with the majority approach,
Rivera-Jimenez is not squarely at odds with it.
14
Of course, whether deemed more advantageous or not, I believe the earlier discussion
demonstrates that this approach is more consistent with the underlying Act than is the
majority’s.
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approach, it would nevertheless operate, in the vast majority of instances, to
bar the alien altogether from cancellation relief. 15
Finally, let me briefly outline the advantages of a discretionary approach
over the one mandated by the regulations, as a further indication of the
former’s consistency with likely congressional intent. The majority’s
regulation-decreed approach of precluding eligibility for cancellation relief
based on a coerced departure under threat of removal proceedings is unduly
rigid and will occasionally lead, even in that most appealing context, to
undesirable outcomes. Although I concur in the result in this case because
I would apply a strong presumption against a discretionary grant of
cancellation of removal relief to an alien who departed under circumstances
that met the description in 8 C.F.R. § 240.64(b)(3) (i.e., an alien who, as here,
“voluntarily departed under the threat of deportation,” or who departed “for
purposes of committing an unlawful act”), there may be exceptional cases in
which the presumption should be deemed overcome in order to reach a just
result.
For example, suppose a case in which the alien’s removal would not only
amount to an “exceptional and extremely unusual hardship” to a qualifying
relative, but would also be unconscionable and would leave a United States
citizen utterly devastated and without resources. Or suppose a case in which
the alien not only demonstrated “good moral character” during the prescribed
period but demonstrated extraordinary positive character, such as being a
national role model through literary, scientific, philosophical, or sports
accomplishments and activities, or one who devoted his or her life to
charitable or religious works in this country, with significant beneficial
results. In such rare, but not unimaginable, circumstances, the majority’s
approach would nonetheless require that the alien, because of once having
departed this country under the threat of institution of removal proceedings,
be found to have broken continuous presence and, consequently (often), to be
ineligible for cancellation relief.
The more flexible approach that I believe Congress intended would allow
for an affirmative exercise of discretion in such instances.16 Moreover, and
15
Aliens who did not reenter the United States after such a departure would remain eligible
for cancellation relief (because, in contrast to the former suspension of deportation remedy,
cancellation of removal applies also to aliens who are excludable), as would aliens who, in rare
instances, managed to reenter legally, as in the hypothetical example in the majority opinion.
Although Congress may or may not have realized this fact when it crafted section 240A(d)(2)
of the Act and (in my view) vitiated the previous applicability of cases finding a break in
presence based on coerced departures of less than 90 days, the number of such cases is not
so large as to render it implausible that Congress meant (or would have meant) that this class
of aliens, too, must be dealt with by Immigration Judges and the Board on a discretionary
basis.
16
The discretionary approach I advocate for departures of less than 90/180 days under
(continued...)
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far more importantly in a practical sense, there may well be less-than-90-day
departures that, although not “casual” or “innocent” under prior interpretations
of section 244(b)(2) of the Act, are nevertheless not as seriously interruptive
of continuous presence or do not detract as much from an alien’s worthiness
for relief as the two forms of noninnocent departure addressed in 8 C.F.R.
§ 240.64(b)(3). Such departures may be ones toward which Congress felt
that the Immigration Judges and the Board, in the exercise of discretion,
should accord more latitude in determining whether to treat such departures
alone as a basis for denying cancellation relief. Yet, under the regulations,
these departures, too, must result in a determination that the alien’s
continuous physical presence has been broken, which often will lead to a
finding of ineligibility for cancellation relief. 17
VI. CONCLUSION
Because the regulations at 8 C.F.R. §§ 240.64(b)(2) and (3) command
adherence by the Board, see supra notes 1, 4, I join the result that the
majority reaches and reiterate only that, on the alternative approach that I
believe better captures Congress’s likely intent, I would also reach that result
in this case. However, the regulations appear at odds with legislative purpose
in failing to assign the natural meaning or effect to Congress’s failure to bring
forward former section 244(b)(2) of the Act as it relates to departures of less
than 90 days, and in treating that statute as never having been eliminated with
respect to its requirement that such departures be “casual” and “innocent” for
purposes of continuous presence eligibility for cancellation of removal. I
therefore respectfully encourage a renewed review of the pertinent
regulations.
16
(...continued)
section 240A(d)(2) of the Act also would have the effect of insulating these discretionary
decisions from federal appellate review under section 242(a)(2)(B) of the Act, 8 U.S.C.
§ 1252(a)(2)(B) (2000). Whether this is an advantage or not may depend on one’s
perspective, but I submit that it is generally consistent with Congress’s intent to expedite the
resolution of cancellation-type claims. The courts of appeals have honored this intent by, for
example, finding that the determination of “extreme hardship” under the former suspension of
deportation provision is not subject to judicial review. See, e.g., Najjar v. Ashcroft, 257 F.3d
1262, 1298 (11th Cir. 2001), and cases cited therein. The analysis in those cases would seem
to indicate that the same result will be found to hold true for the determination whether
“exceptional and extremely unusual hardship” exists under the new cancellation of removal
statute.
17
Ineligibility does not follow automatically upon a finding of a break in presence, since it is
possible for an alien to accrue the necessary continuous physical presence anew after the
break. See Ram v. INS, 243 F.3d 510, 517-18 (9th Cir. 2001); Vargas-Gonzalez v. INS,
647 F.2d 457 (5th Cir. 1981).
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DISSENTING OPINION: Lory Diana Rosenberg, Board Member, in
which Cecelia M. Espenoza, Board Member, joined
I respectfully dissent.
The resolution of this case brings to mind the story of the emperor who
walked naked through the streets of his kingdom while his aides encouraged
the citizenry to applaud his supposedly fine, new clothes. The majority
insists that there is both statutory and regulatory authority that supports its
conclusion that the respondent’s departure interrupted his accrual of
continuous physical presence necessary to qualify for cancellation of removal
under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(b)(1) (2000). Yet not one of the authorities cited by the majority
applies specifically to the respondent’s circumstances or the particular statute
that governs them. Indeed, much of the authority invoked by the majority
actually compels an interpretation that would lead to a contrary result.
Like the king’s new clothes, the statutory and regulatory authority needed
to support the conclusion that the nature of the respondent’s departure created
a break in the required period of physical presence simply does not exist. As
such, the result reached by the majority, that the respondent is ineligible for
cancellation of removal, is dependent on an elaborate bootstrapping exercise.
The applicable authority supports a contrary conclusion.
I. STATUTORY AUTHORITY AND
CONGRESSIONAL SILENCE
Congress specifically addressed the circumstances under which a
respondent’s period of continuous residence or continuous physical presence
“[f]or purposes of [section 240A of the Act]” shall be deemed to end.
Section 240A(d)(1) of the Act. Section 240A(d)(2) of the Act provides
specifically that “[a]n alien shall be considered to have failed to maintain
continuous physical presence in the United States under subsections (b)(1)
and (b)(2) 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.”
(Emphasis added.)
Although the majority contends that this cannot be the “exclusive measure”
of what amounts to a break in continuous physical presence, Matter of
Romalez, 23 I&N Dec. 423, 424 (BIA 2002), Congress simply did not
provide additional grounds on which a break in continuous physical presence
would exist. Indeed, the statutory language states quite clearly that the
provision relating to permitted temporary absences relates to “continuous
physical presence . . . under subsections (b)(1) and (b)(2).” Section
240A(d)(1) of the Act. The language could not be more plain: these
subsections relate to cancellation of removal and adjustment of status for
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certain nonpermanent residents, including a spouse or child who has been
battered or subjected to extreme cruelty by a spouse or parent. Sections
240(A)(b)(1), (2) of the Act.
Thus, although the majority claims to “start with the language of the statute
itself,” it does not do so. Matter of Romalez, supra, at 425. The literal
language does not address breaks in presence other than those determined by
length of time, individually or in the aggregate. See section 240A(d)(2) of the
Act.
In Matter of Salazar, 23 I&N Dec. 223, 227 (BIA 2002), we emphasized
that we would not “carve out an exception” to the operation of a statutory
provision when, “under the plain language of section 101(a)(48)(A) of the
Act, we have no authority to make such an exception.” In the face of
congressional silence, we reasoned that “[s]ection 101(a)(48)(A) of the Act
clearly states the requirements for a conviction . . . [and] contains no
exception for offenders who have been accorded rehabilitative treatment
under state law.” Id. at 229. We had no hesitation in concluding that
“[n]othing in either [the Act or the federal first offender statute] indicates that
Congress intended to excuse a first-time simple drug possession offender . . .
from the definition of a conviction that it set forth in section 101(a)(48)(A).”
Id.
In other words, we insisted that in construing section 101(a)(48)(A) of the
Act, we could only accommodate circumstances that were explicitly
articulated by Congress and included in the statute as a matter of its plain
language. If the respondent’s circumstances were not among those expressly
addressed in the statutory language, they were not affected by its operation.
Id. (stating that “we are not at liberty to create exceptions where Congress has
declined to provide them”); see also Matter of Collado, 21 I&N Dec. 1061,
1064 (BIA 1998) (ruling that the plain language of section 101(a)(13) of the
Act compelled the finding that the provision was limited to its express terms).
Yet here, in the face of congressional silence in relation to sections
240A(d)(1) and (2) of the Act, the majority insists that where the statute
expressly covers breaks in presence of a certain length, this specificity does
not mean that Congress intended to foreclose other breaks in presence from
posing disruptions in continuous presence of a disqualifying nature. In the
majority’s view, Congress did not need to articulate any specific exceptions.
The statutory language does not support such a reading, and it is inconsistent
with our practice to the contrary in construing other provisions of the Act.
The majority attempts to justify its expanded reading by asserting that the
statute as a whole “does not support” the respondent’s contention that section
240A(d)(2) of the Act preserves an alien’s eligibility for cancellation of
removal for any departure of 90 days or less, because a removal order is
intended to terminate a period of residence in the United States. Matter of
Romalez, supra, at 426 (citation omitted). I must reject the majority’s
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explanation of its attempted justification as, first, being inapposite to the issue
with which we are confronted and, second, constituting an unacceptable
excuse for venturing into the legislative arena when we have no authority to
do so.
First, the circumstances of the respondent’s case involve a removal order.
The particular provisions of the statute pertaining to cancellation of removal
no longer distinguish between those aliens who have effected an unlawful
entry into the United States and those who are apprehended upon arrival. See
section 240A(a) of the Act; cf. sections 244(a)(1), (2) of the Act, 8 U.S.C.
§ 1254(a)(1), (2) (1994) (making suspension of deportation available to aliens
in deportation proceedings, but not to those who had not made an “entry”).
Under the prior statute, Congress had allowed only those aliens who had
effected an unlawful entry to apply for suspension of deportation in
deportation proceedings; those in exclusion proceedings were not eligible.
See Ramirez-Durazo v. INS, 794 F.2d 491, 496-97 & n.2 (9th Cir. 1986)
(“An alien in deportation proceedings is entitled to certain procedural
protections and substantive rights not available in an exclusion proceeding
. . . [including the right to] seek suspension of deportation” (citing Landon v.
Plasencia, 459 U.S. 21, 25-26 (1982))); Matter of Ching, 12 I&N Dec. 710,
711-12 (BIA 1968) (finding that suspension of deportation eligibility requires
a charge and finding of deportability on that ground). In contrast, under the
current unitary removal proceedings, cancellation of removal under section
240A(a) of the Act is available to any otherwise qualified alien.
Accordingly, the fact that an alien departs and reenters the United States
does not depend on a fiction that the departure was not meaningful because
it was “brief, casual, and innocent.” Cf. Rosenberg v. Fleuti, 374 U.S. 449
(1963); former section 244(b) of the Act. Eligibility for cancellation of
removal after any type of departure other than that enforced pursuant to a
removal order turns on whether the respondent’s absence exceeded the time
periods allowed in the statute. See sections 240A, 241(a)(5) of the Act,
8 U.S.C. §§ 1229b, 1231(a)(5) (2000).
I agree with the portion of Board Member Pauley’s opinion in which he
rejects the majority’s reliance on section 241(a)(5) of the Act as providing
support for the majority’s analysis. As Board Member Pauley points out,
section 241(a)(5) applies to the enforced removal of a respondent following
a full hearing before an Immigration Judge. In section 241(a)(5) of the Act,
Congress expressly foreclosed eligibility for relief when a respondent departs
the country under an order of removal and then unlawfully reenters the United
States. This is not such a case. Section 241(a)(5) of the Act is not
applicable to voluntary departures made prior to the institution of formal
removal proceedings, even if such departures are made by a respondent who
would otherwise face a removal proceeding.
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In an effort to invoke section 241(a)(5) as authority for its ruling, the
majority contorts the content of that statutory provision, almost beyond
recognition. The majority ignores the requirement that an alien have returned
“illegally” after having been “removed or having departed voluntarily, under
an order of removal” in order to be ineligible for any relief. Section
241(a)(5) of the Act (emphasis added). The majority’s analysis essentially
renders irrelevant the due process requirement that no enforced departure is
lawful without a full and fair hearing in which a respondent is entitled to an
opportunity to be heard, to present evidence, to challenge evidence and
cross-examine witnesses against him, and to apply for forms of relief from
removal for which he may be eligible. See sections 240(a)(3), (b) of the Act,
8 U.S.C. §§ 1229(a)(3), (b) (2000). In equating a so-called “coerced
departure” with a voluntary departure, deportation, or removal following a
full and fair hearing, the majority unacceptably conflates these procedures
and their legal effect.
Second, the majority admits that “[w]e have uncovered nothing in the
legislative history . . . that substantially helps to resolve this case.” Matter
of Romalez, supra, at 429. Under such circumstances, the proper course is
to apply the removal provisions of the Act narrowly. INS v. St. Cyr,
533 U.S. 289, 320 (2001) (recognizing “‘the longstanding principle of
construing any lingering ambiguities in deportation statutes in favor of the
alien’” (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987))); Fong
Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (holding that “we will not assume
that Congress meant to trench on [the immigrant’s] freedom beyond that
which is required by the narrowest of several possible meanings of the
words used” (emphasis added)). Thus, we are obliged to opt for the more
narrow reading, i.e., the one that will result in less harsh removal
consequences.
II. LACK OF REGULATORY AUTHORITY
There is no regulation that specifically addresses whether the respondent’s
required physical presence of 10 years is interrupted by his two departures
of far less than 90 days each, simply because these departures occurred after
the respondent was apprehended by the Immigration and Naturalization
Service. There certainly is no regulation dictating that such a “departure
under threat” constitutes a break in the period of physical presence required
under the governing statute and disqualifies the respondent from cancellation
of removal.
As the majority acknowledges in summarizing the pertinent facts in the
respondent’s case, the respondent is a native and citizen of Mexico. He is not
eligible for consideration for either suspension or cancellation of removal
under the Act, as amended by section 203 of the Nicaraguan Adjustment and
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Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2193,
2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997)
(“NACARA”). Consequently, the regulations implementing the provisions
of the NACARA do not apply to him. 1
The majority and the concurring opinions skip right over this marked
difference between the authority governing the cases of applicants under the
NACARA provisions and that governing the cancellation of removal
applications of applicants such as the respondent.
The majority
acknowledges that NACARA applicants are exempt from many of the
limitations imposed on non-NACARA applicants. See Matter of Romalez,
supra, at 427. Moreover, the majority concedes that the “regulation
specifically applies only in the context of NACARA applications.” Id. at 428
(referring to 8 C.F.R. § 240.64(b)(3) (2001)). Nevertheless, the majority
insists that the case of a non-NACARA applicant, such as the respondent, is
somehow governed by the terms of the regulations pertaining to NACARA
applicants with respect to departures under threat of deportation. See
8 C.F.R. § 240.64(b)(3).
Calling a regulation that implements a different statutory provision limited
to individuals of certain nationalities and specific conditions “related” does
not make it applicable to the respondent. Matter of Romalez, supra, at 427.
We have held that the language of a regulation is to be construed according
to the same principles of interpretation that we apply in determining the
meaning of a statutory provision. Matter of Masri, Interim Decision 3419
(BIA 2000) (citing Diaz v. INS, 648 F. Supp. 638, 644 (E.D. Cal. 1986)
(citing Malat v. Riddell, 383 U.S. 569, 571 (1966))). According to the canons
of statutory construction, when language is included in one section of a
provision and omitted in another section, the disparate inclusion or exclusion
is presumed to be intentional. INS v. Cardoza-Fonseca, supra, at 432 (citing
Russello v. United States, 464 U.S. 16, 23 (1983) (citing United States v.
Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972))).
There is no regulation comparable to 8 C.F.R. § 240.64(b) that implements
section 240(d)(2) of the Act and applies to an applicant for regular
cancellation of removal. See 8 C.F.R. § 240.20 (2001). As such, contrary
1
The Attorney General plainly differentiated the regulations governing “special rule”
suspension of deportation and cancellation of removal from other cancellation of removal
adjudications, categorizing these forms of relief under “Subpart H” of 8 C.F.R. pt. 240 (2001).
In promulgating 8 C.F.R. § 240.64, the Attorney General pointed to programmatic concerns
and explained that because “specific departures . . . have long been considered to break
continuous physical presence in the context of suspension of deportation adjudications,” the
burden of proof remains on the applicant to establish the “casual and innocent” nature of such
departures. Suspension of Deportation and Special Rule Cancellation of Removal for Certain
Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries, 64 Fed. Reg. 27,856,
27,863 (1999). The Attorney General concluded that it was, “therefore, both reasonable and
necessary to place the same restrictions on special rule cancellation applicants.” Id.
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to the suggestion in the concurring opinion, we are not bound by a regulation
having the force and effect of law. Cf. Matter of Fede, 20 I&N Dec. 35, 36
(BIA 1989); see also Matter of C-, 20 I&N Dec. 529, 532 (BIA 1992). In
fact, the statutory and regulatory provisions governing the applications
submitted by NACARA applicants are specifically designed to guide the
determination of claims made by applicants described in the NACARA
amendments to the statute. A non-NACARA applicant cannot benefit from
such provisions and there is no basis to extend the terms of the regulation
implementing the NACARA statute to all cancellation of removal applicants.
Even if it were reasonable to speculate that the Attorney General might wish
to extend 8 C.F.R. § 240.64(b) to a non-NACARA applicant who is seeking
cancellation of removal, he did not do so. In the absence of any regulation,
we exceed our authority if we proceed to read a provision that simply seems
“related” into the regulations applicable to the respondent.
III. PRIOR DECISIONS AND THE BRIEF, CASUAL,
AND INNOCENT STANDARD
The prior decisions addressing the “brief, casual, and innocent” departure
standard, which followed the interpretation of the United States Supreme
Court in Rosenberg v. Fleuti, supra, do not apply to the issue before us in
this case. Although the majority cites Hernandez-Luis v. INS, 869 F.2d 496,
498 (9th Cir. 1989), in which the respondent accepted prehearing
administrative departure and then returned and entered the United States
without inspection, that case was not determined under the current statute or
even its predecessor provision. 2 See also Barragan-Sanchez v. Rosenberg,
471 F.2d 758, 760 (9th Cir. 1972) (finding that a voluntary departure under
threat of deportation was not a brief, casual, and innocent absence from the
United States).
The advent of the IIRIRA completely altered the predecessor “suspension
of deportation” provisions on which those decisions were based. See sections
244(a)(1), (2) of the Act. In effect, the brief, casual, and innocent test was
codified at various places in the new statute. See, e.g., section
101(a)(13)(C)(ii) of the Act, 8 U.S.C. § 1101(a)(13)(C)(ii) (2000); section
240A(d) of the Act; see also Matter of Collado, supra, at 1064-65; cf.
Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir. 1995) (stating that an
“‘alien shall not be considered to have failed to maintain continuous physical
presence in the United States . . . if the absence from the United States was
2
In Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995), the United States Court of
Appeals for the Ninth Circuit recognized that Congress passed 8 U.S.C. § 1254(b) (1994) in
order to overrule the Supreme Court’s ruling in INS v. Phinpathya, 464 U.S. 183 (1984), that
any absence precluded relief. Id. at 1362 (citing H.R. Rep. No. 99-682, pt. 1, at 78 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5682).
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brief, casual, and innocent and did not meaningfully interrupt the continuous
physical presence’” (quoting 8 U.S.C. § 1254(b)(2))).
In Matter of Collado, supra, the Board concluded that the brief, casual, and
innocent standard originating in the Fleuti decision did not survive the
enactment of the IIRIRA, and it declined to read the test into the statute where
Congress had not elected to include it. Id. at 1065 (stating that “Congress has
now amended the law to expressly preserve some, but not all, of the Fleuti
doctrine”). Therefore, those portions of the “Fleuti” test that Congress did
not include in the post-1996 statutory provisions are no longer relevant, and
the parameters of the test are not decisive. Hernandez-Luis v. INS, supra,
at 498 (citing DeGurules v. INS, 833 F.2d 861 (9th Cir.1987)). Accordingly,
the “noncasual” or “noninnocent” basis on which the petitioner in HernandezLuis may have accepted voluntary departure no longer exists as a factor in
determining whether a respondent is eligible to apply for cancellation of
removal. Rather, the terms of the statute control.
At the same time, the Ninth Circuit, in which this cases arises, has long
recognized that both the section of the statute governing entry and the section
relating to suspension of deportation were essentially remedial in nature.
Kamheangpatiyooth v. INS, 597 F.2d 1253, 1256 (9th Cir. 1979). The
physical presence requirement has consistently been seen as effectuating
Congress’s judgment that presence of a specified length was “likely to give
rise to a sufficient commitment to this society through establishment of roots
and development of plans and expectations for the future to justify an
examination by the Attorney General of the circumstances of the particular
case to determine whether deportation would be unduly harsh.” Id. at 1256;
see also Heitland v. INS, 551 F.2d 495, 501 (2d Cir. 1977).
In Castrejon-Garcia v. INS, supra, at 1362, an Immigration Judge found
that the petitioner had not met the continuous physical presence requirement
because he went to Mexico for 8 days for the sole purpose of obtaining a
visa. However, in the 10-year period preceding the point at which he applied
for suspension of deportation, Castrejon departed and reentered unlawfully
in 1983, departed and reentered unlawfully in 1988, and was actually
convicted of unlawful entry in 1988.3 Despite this record, the Ninth Circuit
rejected the Board’s reading of the “casual” element of the Fleuti test,
concluding that
[t]he case is characterized by the remarkable determination of the Service and the Board
to rid this country of a resident of twenty-five years standing . . . . Discretion, which is a
normal requirement for the fair execution of every governmental duty, has been
conspicuously in abeyance in a pursuit worthy of Inspector Javert.
3
Because of a prior conviction for transporting, Castrejon had to establish 10 years of
continuous physical presence and good moral character to qualify for suspension of
deportation. Castrejon-Garcia v. INS, supra.
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Id. at 1363.
I do not contend that the respondent’s purpose in departing the country is
the same as that of Castrejon, who was attempting to obtain an immigrant
visa. However, the respondent’s unlawful reentries are no more unlawful, and
are fewer and less frequent, than those of Castrejon. Moreover, the Ninth
Circuit emphasized that the “evident statutory purpose” is that an individual
who lives continuously in the United States for 7 years does not destroy his
eligibility by “actions that do not affect his commitment to living in this
country.” Id. at 1362.
The respondent has lived in the United States for 18 years, working and
raising his family in this country. He has seven children, who are now 4 to 15
years of age. I would find that his stake in this country is considerable, and
that the hardship to these children, which is the ultimate issue, is not merely
economic but educational, societal, cultural, and personal. If it is appropriate
to invoke prior decisions, notwithstanding the demise of the “brief, casual,
and innocent” test and Congress’s explicit codification in the IIRIRA of those
portions of the standard Congress wished to preserve, then, at least, the
respondent’s statutory eligibility must be judged by the Ninth Circuit’s more
recent decision evaluating not solely the casual or innocent nature of the
departure, but the quality of the respondent’s ties and commitment to living
in this country.
IV. CONCLUSION
For the reasons discussed above, the respondent has established continuous
physical presence according to the terms of the statute. The interpretation
imposed by the majority is clothed in supposition and lacks support in the
statute or the regulations. The Immigration Judge decided the respondent’s
case without the benefit of our decisions in Matter of Monreal, 23 I&N Dec.
56 (BIA 2001), and Matter of Andazola, 23 I&N Dec. 319 (BIA 2002).
Before simply affirming the Immigration Judge’s decision, I would remand
this case to allow all concerned parties the opportunity to address the
substantive issues under the law as currently interpreted by the Board.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.