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Interim Decision #3822

Matter of Rosa Isela VELASQUEZ-CRUZ, Respondent

Decided December 10, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien’s departure from the United States following a criminal conviction for illegal

entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C.

§ 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence

required to establish eligibility for cancellation of removal under section 240A(b)(1) of

the Act, 8 U.S.C. § 1229b(b)(1) (2012).

FOR RESPONDENT: Jaime M. Diez, Esquire, Brownsville, Texas

FOR THE DEPARTMENT OF HOMELAND SECURITY:

Assistant Chief Counsel

Richard I. Newman,

BEFORE: Board Panel: MALPHRUS and MULLANE, Board Members; LIEBOWITZ,

Temporary Board Member.

LIEBOWITZ, Temporary Board Member:

In a decision dated November 5, 2012, an Immigration Judge found the

respondent removable as an alien present in the United States without being

admitted or paroled under section 212(a)(6)(A)(i) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), and denied her

application for cancellation of removal under section 240A(b)(1) of the Act,

8 U.S.C. § 1229b(b)(1) (2012).1 The respondent has appealed from that

decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who was apprehended

in the United States on August 9, 2004. On August 11, 2004, she was

convicted in Federal court following her guilty plea to illegal entry into the

United States under section 275(a)(1) of the Act, 8 U.S.C. § 1325(a)(1)

(2000). She departed the country the day of her conviction but was

The Immigration Judge also denied the respondent’s application for voluntary

departure under section 240B(b)(1) of the Act, 8 U.S.C. § 1229c(b)(1) (2012). The

respondent has not contested the denial on appeal, so the issue is not before us.

1

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apprehended in the United States later that day.2 On August 13, 2004, she

again pled guilty to illegal entry in violation of section 275(a)(1) and was

sentenced to 30 days of confinement. She subsequently left the country.

A notice to appear was issued on March 15, 2010, alleging that the

respondent arrived in the United States near Brownsville, Texas, on or

about October 1, 2004, and was not then admitted or paroled after

inspection by an immigration officer. At a hearing before the Immigration

Judge, the respondent admitted these allegations and conceded that she

was removable under section 212(a)(6)(A)(i) of the Act. She applied

for cancellation of removal, asserting that she had been present in the

United States since 1988. The respondent claimed that despite departures

in 1998 and 2004, she could establish 10 years of continuous physical

presence prior to the issuance of her notice to appear, as required by section

240A(d)(1) of the Act.

The Immigration Judge held that the respondent’s departures from the

United States following her convictions were pursuant to a sufficiently

formal, documented process to interrupt her continuous physical presence.

In his decision, the Immigration Judge relied on Ascencio-Rodriguez

v. Holder, 595 F.3d 105 (2d Cir. 2010), where an alien’s guilty plea under

section 275(a)(1) of the Act was found to interrupt his continuous physical

presence. He also cited Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012),

which held that an alien’s conviction for possession of a false identification

document while attempting to enter the United States interrupted his

continuous physical presence. The Immigration Judge therefore calculated

that the respondent had only 6 years of continuous physical presence and

was not eligible for cancellation of removal.

II. ISSUE

The issue on appeal is whether an alien’s departure from the

United States following a criminal conviction for illegal entry under section

275(a)(1) of the Act interrupts the 10-year period of continuous physical

presence required to establish eligibility for cancellation of removal under

section 240A(b)(1)(A) of the Act. We hold that a departure subsequent to a

conviction under section 275(a)(1) breaks the alien’s continuous physical

presence for purposes of cancellation of removal.

2

The evidence indicates that the respondent was found approximately 2 miles from the

port of entry in Brownsville, Texas, and was questioned by Border Patrol agents. Each of

the criminal complaints to which the respondent pled guilty state that she “admitted

wading the Rio Grande River near Brownsville, Texas . . . thus avoiding inspection.”

The respondent did not object to the admission of this evidence.

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Interim Decision #3822

III. ANALYSIS

Section 240A(b)(1)(A) of the Act requires an alien to have 10 years of

continuous physical presence to establish eligibility for cancellation

of removal. Under section 240A(d)(2), an alien who has departed the

United States for any period in excess of 90 days or for any periods

exceeding 180 days in the aggregate is considered to have a break in

continuous physical presence. However, this is not the exclusive rule for

determining whether a departure interrupts continuous physical presence.

Matter of Romalez, 23 I&N Dec. 423, 425 (BIA 2002) (en banc); see also

Garcia v. Holder, 732 F.3d 308, 311 (4th Cir. 2013) (stating that the statute

does not provide an exhaustive list of every circumstance terminating an

alien’s continuous physical presence); Mireles-Valdez v. Ashcroft, 349 F.3d

213, 218 (5th Cir. 2003) (same).

In Matter of Romalez, 23 I&N Dec. at 425−26, we held that continuous

physical presence is deemed to end at the time an alien departs the

United States in lieu of the initiation of formal removal proceedings, even if

the period of absence was within the time limits set forth in section

240A(d)(2). We also found in Matter of Avilez, 23 I&N Dec. 799, 805−06

(BIA 2005), that continuous physical presence is interrupted when an

immigration official refuses to admit an alien at the border and

there is evidence that the alien was formally excluded or made subject to an order

of expedited removal, was offered and accepted the opportunity to withdraw his or

her application for admission, or was subjected to any other formal, documented

process pursuant to which the alien was determined to be inadmissible to the

United States.3

The Federal courts have addressed other scenarios where they found a

departure sufficient to break continuous physical presence. For example,

in Ascencio-Rodriguez v. Holder, 595 F.3d at 113−14, on which the

Immigration Judge relied, the United States Court of Appeals for the

Second Circuit held that an alien’s departure following a conviction for

illegal entry broke his continuous physical presence. In that case, the alien

was arrested by Border Patrol agents at a checkpoint near Brownsville,

Texas, was charged and convicted the same day pursuant to a guilty plea of

entering the United States illegally in violation of section 275(a)(1) of the

Act, and returned to Mexico. Id. at 107−08.

We concluded in Matter of Avilez, 23 I&N Dec. at 805, that the respondent’s departure

did not interrupt her continuous physical presence because she was only subject to an

informal exchange with an immigration official, as a result of which she was refused

admission at the border port of entry and was simply directed back across the border.

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The court found that this departure broke the alien’s continuous physical

presence because he was “subjected to a ‘formal, documented process’

by which he was determined inadmissible.” Id. at 113 (quoting Matter

of Avilez, 23 I&N Dec. at 805−06). According to the court, the alien’s

conviction for illegal entry under section 275(a)(1) of the Act was the

“functional equivalent” of a finding of inadmissibility under section

212(a)(6)(A)(i) because the two sections almost mirror each other. Id. at

113−14. Specifically, section 275(a)(1) states that that “[a]ny alien who . . .

enters or attempts to enter the United States at any time or place other than

as designated by immigration officers” is guilty of the crime of illegal

entry. Under section 212(a)(6)(A)(i), “[a]n alien . . . who arrives in the

United States at any time or place other than as designated by the Attorney

General” is inadmissible.4

Thus, even though the alien never appeared before an Immigration

Judge or was explicitly found to be inadmissible, his conviction after a

guilty plea to the crime of illegal entry constituted an admission of

facts that rendered him inadmissible. Id. at 114−15. Holding that the

alien’s conviction, coupled with his departure to Mexico, terminated

his continuous physical presence, the court upheld our interpretation

of section 240A(d)(2) of the Act in Matter of Romalez and Matter of Avilez.

Id. at 115; see also Garcia v. Holder, 732 F.3d at 311−12 (finding our

interpretation of section 240A to be reasonable and noting that all of the

circuit courts that considered the issue found our construction to be

permissible) (listing cases).

In Zarate v. Holder, 671 F.3d 1132, the alien returned to Mexico

following his conviction under 18 U.S.C. § 1028(a)(4) (1988) for

possession of fraudulent documents, which he presented while attempting

to enter the United States illegally by falsely claiming United States

citizenship. The Ninth Circuit held that his departure was sufficient to

break his continuous physical presence.

The court reasoned that

the “sequence of events” leading up to the departure—his use of

false identification, as indicated on the Form I-213 (Record of

Deportable/Inadmissible Alien); his false claim of United States citizenship

(a criminal charge that was dismissed); his arrest; his guilty plea and

conviction in Federal court; the 5 days he spent in jail; and his eventual

4

The Second Circuit acknowledged that some convictions for illegal entry under

section 275(a) of the Act may not conclusively determine an alien’s admissibility, noting,

for example, that certain battered women and children may not be deemed inadmissible

under section 212(a)(6)(A)(ii) of the Act. Ascencio-Rodriguez v. Holder, 595 F.3d at

113−14. The respondent has the burden of establishing her eligibility for relief and does

not claim that any exception applies to her. 8 C.F.R. § 1240.8(d) (2014).

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return to Mexico in immigration custody—“was a ‘far cry’ from a mere

turn-around at the border.” Id. at 1137 (quoting Ascencio-Rodriguez

v. Holder, 595 F.3d at 113).

The respondent argues on appeal that her circumstances are

distinguishable from those of the aliens in Ascencio-Rodriguez and Zarate

because, unlike them, she was not attempting to enter the country when she

was apprehended. Rather, she was already in the United States. However,

the alien in Ascencio-Rodriguez was also arrested within the United States

near Brownsville, Texas. In any case, we find no reason for the outcome of

this case to change based on the fact that the respondent’s apprehension

was not literally at the border.5

The respondent also emphasizes that she was not subject to a finding of

inadmissibility and she never received advisals regarding a possible hearing

before an Immigration Judge. We recognize that the circumstances

surrounding each of the respondent’s departures are less than clear.

However, the dispositive factor in determining that there was a break in the

respondent’s continuous physical presence remains the same—she departed

the United States pursuant to a conviction for illegal entry under section

275(a)(1) of the Act.

The Second Circuit’s reasoning in Ascencio-Rodriguez v. Holder, 595

F.3d at 114, in this regard is persuasive. The court noted that, even though

the evidence of the alien’s removal was less than clear and he was not given

an opportunity to appear before an Immigration Judge, his departure

subsequent to a criminal conviction for illegal entry “was more akin to a

formal removal than the informal interactions at the border that the BIA and

other Courts of Appeals have found insufficient to terminate a period of

continuous physical presence.” Id. at 115 n.8; see also Zarate v. Holder,

671 F.3d at 1137−38 (finding that because the alien appeared before a

Federal judge and pled guilty to a crime related to his entry, he had received

sufficient process to establish a break in continuous physical presence, even

without a finding equivalent to an inadmissibility determination or an

opportunity to appear before an Immigration Judge).

5

We note that regardless of whether an alien who illegally enters the United States is

caught at the border or inside the country, he or she will still be required to prove

eligibility for admission. See section 235(a)(1) of the Act, 8 U.S.C. § 1225(a)(1) (2012)

(stating that an alien who is present in the United States without having been admitted is

deemed to be an applicant for admission); see also Ascencio-Rodriguez v. Holder, 595

F.3d at 108−09 n.3 (noting that “[a]liens not admitted are treated as ‘applicants for

admission’” and “are ‘deemed to be legally at the border’ and bear the burden of

establishing their entitlement to admission”) (citations omitted)).

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Based on our de novo review of the legal issue presented, we agree with

the Immigration Judge that the respondent’s departures following her

convictions for illegal entry under section 275(a)(1) of the Act served to

break her continuous physical presence. 8 C.F.R. § 1003.1(d)(3)(ii) (2014).

The respondent appeared in Federal criminal court following both arrests

and, each time with the assistance of counsel, she pled guilty to a crime that

is sufficient to establish her inadmissibility. After each conviction, she

departed the United States and immediately reentered without permission.

Under these circumstances, “[t]here is no legitimate expectation . . . that an

alien could illegally reenter and resume a period of continuous physical

presence.” Matter of Romalez, 23 I&N Dec. at 429. The sequence of

events leading to the respondent’s departure in each case is a “far cry” from

a mere turnaround at the border and is sufficient to constitute a break

in continuous physical presence. Zarate v. Holder, 671 F.3d at 1137;

Ascencio-Rodriguez v. Holder, 595 F.3d at 113.

We conclude that each of the respondent’s departures following her

convictions was pursuant to a “formal, documented process” that resulted

in a break in her continuous physical presence. Matter of Avilez, 23 I&N

Dec. at 805. To hold otherwise would allow aliens to continue to accrue

continuous physical presence in a manner that is “contrary to the objectives

of [the immigration] laws and the [Board’s] relevant decisions.”

Ascencio-Rodriguez v. Holder, 595 F.3d at 114 (citing Matter of Avilez,

23 I&N Dec. at 806; Matter of Romalez, 23 I&N Dec. at 429); see also

Zarate v. Holder, 671 F.3d at 1138.

IV. CONCLUSION

The respondent’s departures following her convictions for illegal entry

pursuant to section 275(a)(1) of the Act interrupted her continuous physical

presence because they were pursuant to a formal, documented process

during which she admitted sufficient facts to establish her inadmissibility.

Consequently, we agree with the Immigration Judge that the respondent has

not met her burden to establish 10 years of continuous physical presence.

She is therefore ineligible for cancellation of removal under section

240A(b)(1)(A) of the Act. The Immigration Judge properly pretermitted

the respondent’s application for that relief without addressing the other

eligibility requirements. Accordingly, the respondent’s appeal will be

dismissed.

ORDER: The appeal is dismissed.

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