Petition for Writ of Certiorari — Macias-Placencia v. Gonzales

a ee es ee ee. 8 et 2 Se eee

- supreme Court, U.S.

/} ) FILED

041300 JAN 18 2005

No. OFFICE OF THE CLERK

In the

Supreme Court of the United States

Jose ANTONIO MACIAS-PLACENCIA,

Petitioner.

We

ATTORNEY GENERAL, JOHN ASHCROFT,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Murray D. Hits

Counsel of Record

Law Orrices oF Murray D. HILTs

3020 MEADE AVENUE

San Dieco, CA 92126

(619) 688-1174

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc. 800.890.5001

*

i

QUESTION PRESENTED

1. Does the United States Court of Appeals decision in

Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003), as

applied to Petitioner, serve as a constitutionally impermissible

infringement upon legislative authority?

TABLE OF CONTENTS

Page

QUESTION PRESENTED «2.2524 a csswsceess t

TABLE OF AUTIRORER GS 60054550000 06s0s05 iV

OPENSONS GEAAIW ui i.vanvnca eee eae l

JURISDICTION 2. 64.4494 40a oe cee be ons l

STATUTORY PROVISIONS INVOLVED ......... l

STATEMENT ....0iiauusaee ee eee eee 2

A. Petitioner and His Immigration Status ........ 2

B. Proceedings Belew oc i nc cece chews en 3

REASONS FOR GRANTING THE PETITION ...... 4

I. The Question Presented Is Important ......... 4

A. THE NINTH CIRCUIT’S HOLDING IN

VASQUEZ-LOPEZ CONSTITUTES A

CONSTITUTIONALLY IMPERMISSIBLE

JUDICIAL INFRINGEMENT INTO THE

LEGISLATIVE ARB ....66ceeen eas 4

}. IT IS NOT UNCOMMON FOR THIS

COURT TO REVERSE THE NINTH

CIRCUIT FOR’ JUDICIAL

INFRINGEMENT UPON’ THE

LEGISLATIVE ARENA ........ 6

eee

2. THE LACK OF THE STOP-TIME

RULE IN THE VOLUNTARY

DEPARTURE CONTEXT FURTHER

EVIDENCES THE NINTH

CIRCUIT’S IMPINGEMENT ON

LEGISLATIVE AUTHORITY .... 8

B. THE DECISION GAVE IMPROPER

DEFERENCE TO BIA INTERPRETATION

IN IN RE ROMALEZ-ALCAIDE ......... 9

C. THERE IS CONFLICT BETWEEN THE

NINTH AND TENTH CIRCUITS ....... 14

D. THE NINTH CIRCUIT’S

INTERPRETATION OF WHAT BREAKS

CONTINUOUS PHYSICAL PRESENCE IS

ILLOGICAL AND PREJUDICIAL WHEN

READ IN CONJUNCTION WITH OTHER

CORRESPONDING PROVISIONS OF THE

Ey er rds ee ee ee 15

Il. ANY AMBIGUITIES IN DEPORTATION

STATUTES SHOULD BE CONSTRUED IN

FAVOR OF PETITIONER ............ 18

IE As sah a boa sae 3 hae orks ae 19

eee eg ba ds yg ane ales la

Te attain ok Saas ae be oo eke hae 3a

iV

TABLE OF AUTHORITIES

Cases

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 146 L. Ed. 2d 121,

yo} em |) Ne rr errr eS 10

Cal. Cosmetology Coalition v. Riley, 110 F.3d 1454

rr ee ee 10

United States v. Calamaro, 354 U.S. 351

1 L. Ed. 2d 1394, 77S. Ct. 1138 (1957) ........ 10

INS v. Cardoza-Fonseca, 480 U.S. 421

94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) .. 7,17, 19

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837,

81 L. Ed. 2d 694,

oe eR ot eee 9, 10, 11, 13

Falcon Carriche v. Ashcroft, 350 F.3d 845

Ca Ee 6 6's i oa eka see orn 4

Hernandez-Luis v. INS, 869 F.2d 496

CS: SN os oc Vee een eee 7,15

Kamheangpatiyooth v. INS, 597 F.2d 1253 |

a Ge: TEFee bss cine hebeeeas eee 16

Manhattan Gen. Equip. Co. v. Comm’r, 297 U.S. 129, )

SO L.. Gd. SG, SOS. CO Fer Ce ts eee ee eeees 10

INS v. Phinpathya, 464 U.S. 183,

78 L. Ed. 2d 401, 104 S. Ct. 584 (1984) .. 6,7, 8, 11

eS

Ne Caen ee er

R.R. Trainmen v. Baltimore & Ohio R.R. Co..,

331 U.S. 519, 91 L. Ed. 1646,

O76. 04 CS Cee wale xo 2 a eee eee 12

Rivera-Jimenez v. INS, 214 F.3d 1213

Ce: Bee 6s sha ee eee ere 14, 15

In re Romalez-Alcaide, 23 1. & N. Dec. 423

CEA Fees CR UNE on oho 655 eho rie es passim

Romero-Torres v. Ashcroft, 327 F.3d 887

Ci Co. BRR a 5 oe oes Tea eee 16

Russello v. United States, 464 U.S. 16 (1983) ....... 19

Stone v. INS, 514 U.S. 386, 131 L. Ed. 2d 465,

th? See hiyel,-) Peewee rerrr re rere rere. 6

INS v. St. Cyr, 533 U.S. 289,150 L. Ed. 2d 347,

021 5. Ce. ZE7E GHD eke ace seek ceed ve ns 10

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

ile Gi: Se 6 no ke oe ee ee eee passim

Statutes and Regulations

SC.P.R. PRRRBOME 2c ccc csscsesaaen es 12

SCPE. 6 PD 6 6 6 sehen sence wean 13

8 U.S.C. 5 LMI «sos Fe hinge oe seen esses 17

8 U.S.C. § 1182(a)(2); INA § 212(a)(2) ....... ~~... 2

8 U.S.C. § 1227(a)(2); INA § 237(a)(2) ......--... 2

8 U.S.C. § 12273); ENA § 237A)... 2. eee 2

SUS.C. § TZFIRGED ccc tas ee ea we wes 17

8 U.S.C. § 1229b(b)(1)(D); INA § 240A(b)(1)(D) . . . . 16

vi

8 U.S.C. § 1229b(b)(2)(B); INA § 240A(d)(1) ...... 12

8 U.S.C. § 1229b(c); INA § 240A(c) ............ 9

8 U.S.C. § 1229b(d)(1); INA § 240A(d)(1) 2... 2... 8,9

8 U.S.C. § 1229b(d)(2); INA § 240A(d)(2) .. . . . passim

S USA... § CRSSOED ov ce cvesebeseness eee 16

S USA. § Saves 0.60 s etsseeeaeee ee 13, 14

Lip iol §>- SP PPerererrrrrerce ree l

8 U.S.C. § 1254(b)(2) [Illegal Immigration Reform

and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208,

110 Seat. 3009-546 (199G)} . ww. eee a

a8 U.SS. § IBRD sot é causa Weentseeee l

20 USA. § TRSRRRED ..occnkiéideneeeuunaeel 7

Ze U.S.C. B Tee 6 6 8 6 ced ecseeesaeres 7

68 Fed.Reg. 10349 (Mar. 5,2003)

(available at 2003 WL 724287) .............. 3

Homeland Security Act of 2002, Pub.L.No. 107-296,

116 Seat. 2135 (Nov. 25, 2002) .......22 00s 3

Nicaraguan Adjustment and Central American Relief

Act of 1997, Pub. L. No. 105-100, 111 Stat. 2160

(1997), amended by Pub. L. No. 105-139, 111 Stat.

ys Pr re ew 12

Miscellaneous

Stephen H. Legomsky, /mmigration and Refugee

LGW Gn FOR GES CISSE? 0 04.6 e 0 estene ewe 16

|

l

Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

Jose Antonio Macias-Placencia respectfully petitions for

a writ of certiorari to review the judgement of the United

States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The United States Court of Appeals for the Ninth Circuit

(App., infra, A) dismissed the preceding petition for review

in an unreported order filed on October 26, 2004. The Board

of Immigration Appeals (“BIA”) in the United States

Department of Justice's Executive Office of Immigration

Review (App., infra, B), on June 24, 2004, affirmed, without

opinion, the decision of the Immigration Judge (App., infra,

C) originally entered on April 20, 2003.

JURISDICTION

The court of appeals entered its judgment for docket

number 04-73342 on October 26, 2004 (App., infra, A) in an

unreported decision and order. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1). The jurisdiction of the

court of appeals was invoked under 8 U.S.C. § 1252.

STATUTORY PROVISIONS INVOLVED

Section 240A(b) of the Immigration and Nationality Act

(“INA”), Section 1229b(b) of Title 8 of the United States

Code Service established both that certain nonpermanent

aliens in removal proceedings may apply for cancellation of

such proceedings provided the alien can demonstrate: {1}

continuous physical residence in the United States for ten

2

years immediately preceding such application, [2] good moral

character during such ten year period, [3] lack of convictions

for offenses defined in section 212(a)(2), 237(a)(2), or

237(a)(3), and [4] that removal would result in exceptional

and extremely unusual hardship to the alien’s spouse, parent,

or child, who is a citizen of the United States or an alien

lawfully admitted for permanent residence.

In regards to establishing continuous physical presence

during the aforementioned ten year period, the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546

(1996), codified in 8 U.S.C. § 1254(b)(2) specifically reads:

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.

STATEMENT

A. Petitioner and His Immigration Status

Petitioner is thirty-one-year-old native and citizen of the

Mexico. Petitioner crossed over into the United States on

September 9, 1989. From the time Petitioner entered this

country, Petitioner established firm roots within the United

States which indicate a strong commitment to permanently

reside within this country. In 1994, Petitioner was detained by

3

Immigration and Nationality! officers and was awarded

voluntary departure from the United States only to return

some four hours later. Petitioner immediately returned to the

United States and has since resided continuously until the INS

served him with a Notice to Appear on August 21, 2002.

B. Proceedings Below

On December 2, 2002, Petitioner filed with the

immigration court his Application for Cancellation of

Removal and Adjustment of Status for Certain Non-Permanent

Residents pursuant to INA § 240A(b), 8 U.S.C. § 1229b. On

April 30, 2003, The Immigration Judge (“IJ”) found that

notwithstanding the clear language of INA § 240A (which

provides for a 90/180 day threshold for break in continuous

physical presence), Petitioner’s brief four hour absence in

1994 broke his continuous presence consequently making him

removable. The IJ made no mention of the good moral

character or hardship requirements under INA § 240A(b), so

! On March 1, 2003, the functions of the former Immigration

and Naturalization Service (“INS”) were transferred from the

Department of Justice to three bureaus (United States Customs and

Enforcement, United States Customs and Border Protection, and

United States Citizenship and Immigration Services) in the newly

formed Department of Homeland Security (DHS). See Homeland

Security Act of 2002, Pub.L.No. 107-296, 116 Stat. 2135

(Nov.25, 2002). Title 8 of the Code of Federal Regulations was

reorganized and amended to reflect the resulting division of

jurisdictions between DHS and Executive Office for Immigration

Review, which includes the immigration court and BIA, and which

remains an agency within the Department of Justice under the

direction of the Attorney General. See 68 Fed.Reg. 10349 (Mar.

5, 2003)(available at 2003 WL 724287)

4

it is reasonable to assume the IJ made a positive finding in

each category for Petitioner.

Petitioner timely appealed to the BIA, and on June 24,

2004, the BIA affirmed, without opinion, the holding of the

IJ. Petitioner timely filed a petition for review with the Ninth

Circuit Court of Appeals on July 6, 2004, and on July 28,

2004, that Court issued an order requesting Petitioner to show

cause why the case should not be summarily disposed of in

light of Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.

2003). Petitioner meritoriously answered the order to show

cause, but on October 26, 2004, that Court issued an order,

in docket number 03-73342, dismissing the petition for

review (App., infra, A) in accordance with its own precedent

in Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003)

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

2003).

REASONS F OR GRANTING THE PETITION

I. THE QUESTION PRESENTED IS IMPORTANT.

A. THE NINTH CIRCUIT’S HOLDING IN

VASQUEZ-LOPEZ CONSTITUTES A

CONSTITUTIONALLY IMPERMISSIBLE

JUDICIAL INFRINGEMENT INTO THE

LEGISLATIVE ARENA.

Separation of Powers is the very corner stone of our

government. The governmental roles of our Legislature and

Judiciary are strictly defined by the United States

Constitution. By ignoring the plain language of INA §

240A(d)(2), and holding that Petitioner’s brief absence from

the United States (which was LESS than the clear 90/180 time

that Congress enumerated in the INA) constituted a break in

5

continuous physical presence, the IJ, in relying on Vasquez-

Lopez, is in effect amending the statute. Congress specifically

addressed the situation under which a alien’s period of

continuous physical residence shall be deemed to end. In

doing so, Congress enacted a new definition of “continuous

physical presence” in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.

No. 104-208, 110 Stat. 3009-546 (1996): Although the

pre-1996 INA provided that “brief, casual, and innocent”

departures were not breaks in continuous presence, see 8

U.S.C. § 1254(b)(2) (repealed 1996), IIRIRA excised that

language and substituted the following:

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. 8 U.S.C. § 1229b(d)(2).

The literal language therefore does NOT address breaks in

presence other than those determined by length of time,

individually or in the aggregate.

Despite this evident change in the relevant statutory

regime, the Ninth Circuit’s opinion in Vasquez-Lopez

resurrects the pre-IIRIRA concept of “brief, casual, and

innocent” departures. The opinion consequently denies

Petitioner eligibility for cancellation of removal under 8

U.S.C. § 1229b(b)(1) because his departure, although for

fewer than 90 days, was under threat of deportation. The

Ninth Circuit clearly should have given effect to the language

Congress chose pursuant to this Court’s holding that “[w]hen

Congress acts to amend a statute, we presume it intends its

6

amendment to have real and substantial effect.” Stone v. INS,

514 U.S. 386, 397, 131 L. Ed. 2d 465, 115 S. Ct. 1537

(1995). Instead, the Ninth Circuit disregards IIRIRA’s

significant change in the continuous physical presence section

of the INA.

1. IT IS NOT UNCOMMON FOR

THIS COURT TO REVERSE THE

NINTH CIRCUIT FOR JUDICIAL

INFRINGEMENT UPON THE

LEGISLATIVE ARENA.

In 1984, this Court, in JNS v. Phinpathya, 464 U.S. 183,

189-90, 78 L. Ed. 2d 401, 104 S. Ct. 584 (1984), reversed

the Ninth Circuit because, disregarding the plain words of the

INA as it then read, the Ninth Circuit had created an

exception to the continuous physical presence requirement for

suspension of deportation in cases of non-“meaningfully

interruptive” departures. This Court stated, in pertinent part:

The ordinary meaning of these words does not readily

admit any “exception[s] to the requirement of seven

years of ‘continuous physical presence’ “ in the United

States to be eligible for suspension of deportation. . .

[Without a moderating provision,] Congress meant this

“continuous physical presence” requirement to be

administered as written. /d. (internal citation omitted);

see also id. at 195 (construing the INA to broaden the

Attorney General’s discretion improperly shifts

authority to define the “continuous physical presence”

requirement “from Congress to INS and, eventually,

as is evident from the experience in this case, to the

courts”).

——— —

PRION LIES

7

Congress amended the statute after Phinpathya to provide

an exception for absences that were “brief, casual, and

innocent” and did not “meaningfully interrupt” an alien’s

continuous physical presence. See 8 U.S.C. § 1254(b)(2)

(repealed 1996). Applying the amended statute, the Ninth

Circuit later concluded that a voluntary departure under threat

of deportation is “not a brief, casual, and innocent absence

from the United States” under former section 1254(b)(2). See

Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir. 1989).

(emphasis added)

Again, IIRIRA eliminated the “brief, casual, and

innocent” exception, substituting a bright-line rule stating that

the continuous physical presence requirement is not met if

there is a single departure of more than 90 days or aggregate

absences of more than 180 days. The former “brief, casual,

and innocent” standard that 8 U.S.C. § 1229b(d)(2) replaced

was preserved in two other parts of the statute in which it also

existed before IIRIRA. See 8 U.S.C. §§ 1254a(c)(4)

(temporary protected status), 1255a(a)(3)(B) (adjustment of

status for pre-1982 entrants); accord 8 U.S.C. §§ 1254a(c)(4)

(1995), 1255a(a)(3)(B) (1995).

Setting aside Congress’s 1996 alterations and ignoring its

deliberate inaction elsewhere in the INA’, the opinion in

2 The static langwage of the two “brief, casual, and innocent”

provisions that Congress left untouched in IIRIRA supports the

conclusion that Congress would have been explicit had it wanted to

preserve such an exception to the continuous physical presence

requirement. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 94

L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (holding that if “Congress

includes particular language in one section of a statute but omits it

in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion

8

Vasquez-Lopez accomplishes once more precisely what this

Court specifically stated in Phinpathya that could not be done,

which is, amending the statute Congress wrote. Here, the

Ninth Circuit clearly inserts the “brief, casual, and innocent”

standard back into the continuous physical presence provision,

retaining the regime affirmatively deleted by Congress and

replaced by a single, objective, clear rule.

Judicial amendment of the INA is no more proper when it

limits aliens’ rights than when it enhances them. Section

1229b(d)(2) should therefore be read as a “moderating

provision,” See Phinpathya, 464 U.S. at 190, creating an

exception to the continuous physical presence requirement for

any departure of 90 days or fewer, as long as the alien’s

absences do not exceed 180 days in the aggregate.

2. THE LACK OF THE STOP-TIME

RULE IN THE VOLUNTARY

DEPARTURE CONTEXT

FURTHER EVIDENCES THE

NINTH CIRCUIT’S

IMPINGEMENT ON

LEGISLATIVE AUTHORITY.

Bereft of statutory underpinning for its holding, the Ninth

Circuit in Vasquez-Lopez deploys IIRIRA’s “stop time” rule

to justify its decision. See Amended Opinion, post, at

13494-95 (“To regard [petitioner] as having maintained his

physical presence would be inconsistent with the statutory

concept of voluntary departure and with the ‘stop time’

provisions of § 1229b(d)(1) in particular.”). But the “stop

time” provision does not apply to the class of aliens which

or exclusion.”) (quotation marks and citation omitted).

9

includes Petitioner here, for whom removal proceedings are

never instituted and a Notice to Appear (formerly an Order to

Show Cause) never issued. See Ram v. INS, 243 F.3d 510,

516 (9th Cir. 2001); 8 U.S.C. § 1229b(d)(1) (“any period of

continuous residence or continuous physical presence in the

United States shall be deemed to end . . . when the alien is

served a notice to appear”) (emphasis added).

Congress could have made the “stop time” rule apply to

aliens who take voluntary departure in lieu of being served

with a Notice to Appear, but chose not to do so. See also 8

U.S.C. § 1229b(c) (omitting the category of those who accept

administrative voluntary departure from “Aliens Ineligible for

Relief”). Section 1229b(d)(1), therefore, supports the

contention that the continuous physical presence provision was

not intended to be cut off through voluntary departure, not the

panel’s: Congress evidently decided to treat aliens subject to

removal proceedings, with their attendant protections (and

delays), differently from apprehended aliens for whom such

proceedings were never instituted. Although the Ninth Circuit

regards that distinction as anomalous, Congress clearly

believed otherwise.

B. THE DECISION GAVE IMPROPER

DEFERENCE TO BIA INTERPRETATION IN

IN RE ROMALEZ-ALCAIDE.

The opinion in Vasquez-Lopez claims to defer to the BIA’s

interpretation of the post-IIRIRA INA to include the

now-superseded standard, invoking Chevron, U.S.A., Inc. v.

NRDC, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778

(1984). The BIA’s decision addressing the meaning of 8

U.S.C. § 1229b(d)(2), In re Romalez-Alcaide, 23 1. & N.

10

Dec. 423 (BIA 2002) (en banc), is not, however, entitled to

Chevron deference’.

An agency interpretation that adds to the statute

“something which is not there” cannot stand. United States v.

Calamaro, 354 U.S. 351, 359, 1 L. Ed. 2d 1394, 77 S. Ct.

1138 (1957). The Ninth Circuit has oddly noted:

The power of an administrative officer or board to

administer a federal statute and to prescribe rules and

regulations to that end is not the power to make law,

for no such power can be delegated by Congress, but

the power to adopt regulations to carry into effect the

will of Congress as expressed by the statute. A

regulation which does not do this, but operates to

create a rule out of harmony with the statute, is a mere

nullity. Cal. Cosmetology Coalition v. Riley, 110 F.3d

1454, 1460-61 (9th Cir. 1997)(emphasis added)

(quoting Manhattan Gen. Equip. Co. v. Comm’r, 297

U.S. 129, 134, 80 L. Ed. 528, 56 S. Ct. 397 (1936)).

> In a Chevron analysis, the first step is to consider “whether

Congress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842. “If Congress has done so, the inquiry

is at an end; the court ‘must give effect to the unambiguously

expressed intent of Congress.’ “ Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 132, 146 L. Ed. 2d

121, 120 S. Ct. 1291 (2000) (quoting Chevron, 467 U.S. at 843);

see also INS v. St. Cyr, 533 U.S. 289, 320 n.45, 150 L. Ed. 2d

347, 121 S. Ct. 2271 (2001) (“We only defer . . . to agency

interpretations of statutes that, applying the normal tools of

statutory construction, are ambiguous. ”) (internal quotation marks

and citations omitted).

11

Because the BIA’s inventive statutory interpretation cannot for

a number of reasons be reconciled with Congress’s 1996

amendments regarding breaks in continuous physical

presence, Romalez-Alcaide is not worthy of deference. See

Chevron, 467 U.S. at 844 (“a court may not substitute its own

construction of a statutory provision for a reasonable

interpretation made by the administrator of an agency”)

(emphasis added).

First, the BIA’s interpretation condemns section

1229b(d)(2) to mere surplusage: If the provision is not viewed

as a limitation on the continuous physical presence

requirement, then there is no explicit limitation based on

brevity of absence. Phinpathya precludes recognition of any

implicit limitation. Section 1229b(d)(2) then loses all purpose:

Without any explicit or implicit exception for shorter

departures, there is no reason to provide that absences of more

than a specified number of days are breaks in continuous

physical presence. So the BIA’s conclusion that “the statute

does not specifically exempt all such shorter departures” and

that “the statutory language . . . does not literally forgive any

single departure of 90 days or less or aggregate departures of

180 days or less,” Romalez-Alcaide, 23 1. & N. Dec. at

425-26, cannot be squared with Phinpathya.

Second, one of the BIA’s rationales -- referred to by the

Ninth Circuit in Vasquez-Lopez -- is that section 1229b(d)(2)’s

title (“Treatment of certain breaks in presence”) clarifies

Congress’s intent not to define all breaks in physical presence.

However, Congress was undoubtedly referring to other parts

of the INA that address the issue, see, e.g., 8 U.S.C. §

12

1229b(b)(2)(B)*, not to agency created, un-enumerated

exceptions to the language of the statute. Cf. Bhd. of R.R.

Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529,

91 L. Ed. 1646, 67 S. Ct. 1387 (1947) (“the heading of a

section cannot limit the plain meaning of the text”).

Third, the Romalez-Alcaide majority improperly

considered what it called “Related Regulations,” the same

regulations relied on by the Ninth Circuit in Vasquez-Lopez.

Those regulations implement the post-IIRIRA Nicaraguan

Adjustment and Central American Relief Act of 1997

(NACARA), Pub. L. No. 105-100, 111 Stat. 2160, 2193

(1997), amended by Pub. L. No. 105-139, 111 Stat. 2644

(1997). The Romalez-Alcaide majority held that, given the

* This provision states in relevant part that: “an alien shall not

be considered to have failed to maintain continuous physical

presence by reason of an absence if the alien demonstrates a

connection between the absence and . . . battering or extreme

cruelty perpetrated against the alien. No absence or portion of an

absence connected to the battering or extreme cruelty shall count

‘toward the 90-day or 180-day limits established in subsection

(d)(2).”

> The regulations state that for aliens who fall under 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,” 8

C.F.R. § 240.64(b)(2), and also 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

13

binding nature of regulations on the BIA, “even though the

regulation specifically applies only in the context of NACARA

applications . . . 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).” Romalez-Alcaide, 23 1. & N. Dec. at 428;

but see id. at 445 (Board Member Rosenberg, dissenting)

(“we exceed our authority if we proceed to read a provision

that simply seems ‘related’ into the regulations applicable to

the respondent”). As all the BIA Board Members and the

panel in this case agree, the regulation does not apply except

to NACARA. It therefore deserves no Chevron deference save

with regard to NACARA.

Fourth, as the Ninth Circuit recognized in Vasquez-Lopez,

343 F.3d at 13491 n.2, Romalez-Alcaide incorrectly drew

upon the INA’s reinstatement provision, 8 U.S.C. §

1231(a)(5), to support its holding. In a statement that is

clearly misleading, the BIA majority wrote that “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.” Romalez-Alcaide, 23 1. & N. Dec. at 426. This

reasoning is illogical and unfounded. Romalez-Alcaide, had he

been removed, would, to the contrary, be ineligible for

cancellation of removal upon his return. Section 1231(a)(5)

says sO, quite independently of any continuous physical

deportation or when the departure is made for purposes of

committing an unlawful act.” Jd. § 240.64(b)(3).

14

presence requirement®. But Romalez-Alcaide, like

Vasquez-Lopez and Petitioner here, were at no time subject to

an order of removal, so section 1231(a)(5) is inapplicable to

neither. Section 1231(a)(5) can be enforced separately,

without affecting administrative voluntary departures.

Fifth, after flailing for (and failing to find) any plausible

Statutory grounding for its holding, the Romalez-Alcaide

majority relies on its understanding of IIRIRA’s purpose and

not Congress’. See Romalez-Alcaide, 23 1. & N. Dec. at 429

(“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.”). In short, Romalez-Alcaide provides

no analytical sustenance for the panel’s decision.

C. THERE IS CONFLICT BETWEEN THE

NINTH AND TENTH CIRCUITS.

The Ninth Circuit’s decision produces a statutory

interpretation that is at odds with the approach taken by the

Tenth Circuit when it analyzed the new continuous physical

presence requirement of 8 U.S.C. § 1229b(d)(2). See

Rivera-Jimenez v. INS, 214 F.3d 1213, 1218 (10th Cir. 2000)

® See 8 U.S.C. § 1231(a)(5) (“If the Attorney General finds

that an alien has reentered the United States illegally after having

been removed or having departed voluntarily, under an order of

removal, the prior order of removal is reinstated from its original

date and is not subject to being reopened or reviewed, the alien is

not eligible and may not apply for any relief under this Act, and the

alien shall be removed under the prior order at any time after the

reentry.”) (emphasis added).

15

In Rivera-Jimenez, Petitioners appealed from the BIA’s

denial of their application for suspension of deportation. The

BIA had based its decision on Petitioners’ failure to establish

seven years of continuous presence in the United States before

service of the orders to show cause. Upon review, the Tenth

Circuit vacated the BIA’s decision, which had relied on the

Board’s conclusion that petitioners had not established the

requisite period of continuous physical presence under the old

“brief. casual, and innocent” standard, when the stop-time

rule of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 should have been applied.

In remanding the question to the BIA, the Tenth Circuit

commented: “We agree with the INS that petitioners’

two-week return to Mexico in lieu of being placed in

deportation proceedings was not brief, casual or

innocent... This is irrelevant, however, in light of the IIRIRA’s

special rules relating to continuous physical presence. ”) Id.

At 1218. (emphasis added)(quoting Hernandez-Luis v. INS,

869 F.2d 496, 498 (9th Cir. 1989).

D. THE NINTH CIRCUIT’S

INTERPRETATION OF WHAT BREAKS

CONTINUOUS PHYSICAL PRESENCE IS

ILLOGICAL AND PREJUDICIAL WHEN

READ IN CONJUNCTION WITH OTHER

CORRESPONDING PROVISIONS OF THE

INA.

In its stout determination not to reward an alien who

returned to the United States after taking administrative

voluntary departure, the Ninth Circuit exhibits a short-sighted

understanding of immigration law which has the prejudicial

effect of potentially denying thousands of deserving non-

permanent residents relief. Through IIRIRA, Congress made

16

the strictures leading to cancellation of removal extremely

onerous, tightening the former requirements for suspension of

deportation. See Romero-Torres v. Ashcroft, 327 F.3d 887,

889 & n.4 (9th Cir. 2003). At the same time, Congress did

intend some counterweight to the general policy of not

rewarding extended illegal stays. Otherwise, there would be

no cancellation of removal proviso at all.

Allowing aliens like Petitioner to attempt passage through

the eye of one of several thousand needles does not run

counter to the general restrictiveness of the post-IIRIRA INA’.

Instead, fairly evaluating the continuous physical presence

requirement merely implements a second, equally valid

congressional policy, recognizing the need for exceptions in

rare situations -- those in which the alien can show

“exceptional and extremely unusual hardship to the alien’s

spouse, parent, or child, who is a citizen of the United States

or an alien lawfully admitted for permanent residence.”

8 U.S.C. § 1229b(b)(1)(D). This very limited availability of

cancellation of removal, like suspension of deportation before

IIRIRA, effects “Congress’s judgment that presence of

[extended] 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.” Kamheangpatiyooth v. INS, 597 F.2d 1253,

1256 (9th Cir. 1979).

” Cancellation of removal applies only to a small group of

aliens, out of which no more than 4,000 can be granted relief per

fiscal year. See 8 U.S.C. § 1229b(e)(1). In 1997, the first year that

the quota was in effect, the limit was reached in the month of

February. See Stephen H. Legomsky, /mmigration and Refugee

Law and Policy 465 (1997).

17

Such pockets of immigration law, it is true, include

counter-intuitive incentives to come illegally to the United

States and to remain here. In this sense, “the field is the legal

equivalent of non-Euclidean geometry.” Vasquez-Lopez, 343

F.3d at 968. The Ninth Circuit “nonetheless tries to conjure

a straight line out of one of the INA’s curvatures.” /d.

Cancellation of removal is a perfect illustration. To have

even a chance of obtaining this form of relief, which is

rationed by quota such that it amounts to a lottery of mercy,

aliens are better off if they keep breaking the law by

remaining undetected for ten years. So ‘it is no proof of

Congress’s intent regarding the availability of cancellation of

removal to aliens in Petitioner’s situation that the statute,

overall, aims to facilitate removal of illegal aliens. Rather, the

INA does provide some possibility of relief from removal for

some illegal aliens and, with precision, separates those illegal

aliens who may merit cancellation of removal from those who

do not. Under the statute’s terms, an alien’s repeated illegal

entry after an administrative voluntary departure is simply not

dispositive of this inquiry.

That aliens such as Petitioner necessarily entered illegally

twice rather than once can be considered under the “good

moral character” prong of the cancellation of removal test.

See 8 U.S.C. §§ 1229b(b)(1)(B), 1101(f)(8) (“The fact that

any person is not within any of the foregoing classes shall not

preclude a finding that for other reasons such person is or was

not of good moral character.”). A proper reading of the INA

thus leaves the implementation of section 1229b(d)(2) to the

agency for case-by-case resolution, while the panel’s

interpretation reimposes an across-the-board exclusion that

Congress excised. See Cardoza-Fonseca, 480 U.S. at 448

(“The narrow legal question whether the two standards [an old

and a new one] are the same is, of course, quite different from

18

the question of interpretation that arises in each case in which

the agency is required to apply [the statute] . . . to a particular

set of facts.”).

In sum, Congress could have continued to include the

“brief, casual, and innocent” standard in the post-IIRIRA INA

for purposes of continuous physical presence. Simply put, it

did not. Congress could have made administrative voluntary

departures a ground of ineligibility for cancellation of

removal. Again, it did not. Congress could have applied the

“stop time” rule to illegal aliens who accept administrative

voluntary departures, rather than requiring a Notice to Appear

to end the accrual of continuous physical presence. Not

surprisingly, it did not.

The Ninth Circuit in Vasquez-Lopez and the BIA majority

in Romalez-Alcaide nevertheless acted as super-legislatures,

relying on their perception that Congress had “inadvertently

negated the effect of the respondent[s’] departures for

purposes of accruing continuous physical presence.”

Romalez-Alcaide, 23 1. & N. Dec. at 429 (emphasis added).

Neither agencies nor courts are authorized to repair

Congress’s supposed statutory oversights. Morevoer, the

federal courts are bound to follow IIRIRA’s amendments as

they exist, not as they might look if Congress shared the

panel’s and the BIA majority’s policy preferences.

Il. ANY AMBIGUITIES IN DEPORTATION

STATUTES SHOULD BE CONSTRUED IN

FAVOR OF PETITIONER.

As previously discussed, Section 240A contains not a

single reference to an alien’s period of physical presence

ending after a voluntary departure. According to long standing

principals of statutory interpretation, when a provision is

19

omitted from a code section, it must be assumed that the

exclusion was intentional. Russello v. United States, 464 U.S.

16, 23 (1983).

Section 240A clearly states how period of physical

presence can be broken. Section 240A is equally clear in what

it does not state. It is contrary to the rules of statutory

interpretation to read into Section 240A any provisions that

are hostile to respondent. Longstanding principles of statutory

interpretation mandate that any lingering ambiguities in

Section 240A be construed in favor of respondent. /NS v.

Cardoza-Fonseca, 480 U.S. 421, 449.

CONCLUSION

Based on the foregoing, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

Murray D. Hilts, Esq.

Counsel of Record

Law Offices of

Murray D. Hilts

3020 Meade Ave.

San Diego, CA 92116

(619) 688-1174

Counsel for Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 04-73342

[Filed: October 26, 2004]

Jose Antonio Macias-Placencia,

Petitioner,

Vv.

John Ashcroft, Attorney General,

)

)

)

)

)

)

Respondent. )

)

On Petition for Review of an Order

of the board of Immigration Appeals

Before: KLEINFELD, TASHIMA and GOULD, Circuit

Judges.

2a

MEMORANDUM’

Submitted October 14, 2004

We have reviewed petitioner’s response to the court’s July

28, 2004, order to show cause. The questions taised by this

petition for review are so insubstantial as not to require

further argument. See United States v. Hooton, 693 F2d 857,

858 (9" Cir. 1982) (per curiam) (stating standard).

Accordingly, this petition for review is denied. See Falcon

Carriche v. Ashcroft, 350 F.3d 845 (9" Cir. 2003); Vasquez-

Lopez v. Ashcroft, 343 F.3d 961 (9" Cir. 2003).

The temporary stay of removal confirmed by Ninth Circuit

General order 6.4(c) shall continue in effect until issuance of

the mandate.

All pending motions are denied as moot.

PETITION FOR REVIEW DENIED.

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by

Ninth Circuit Rule 36-3.

** This pane! unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

aed

3a

APPENDIX B

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

[Dated: June 24, 2004]

File: A79-156-467- SAN DIEGO

In re: MACIAS-PLACENCIA, JOSE ANTONIO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Murray D. Hilts

ON BEHALF OF DHS: Kathryn Stuever,

Assistant Chief Counsel

Decision of the Board of Immigration Appeals

ORDER

PER CURIAM. The Board affirms, without opinion, the

results of the decision below. The decision below is,

therefore, the final agency determination. See 8 C.F.R. §

1003. 1(e)(4).

FURTHER ORDER: Pursuant to the Immigration Judge’s

order and conditioned upon compliance with conditions set

4a

forth by the Immigration Judge and the statue, the alien is

permitted to voluntarily depart from the United States,

without expense to the Government, within 30 days form the

date of this order or any extension beyond that time as may be

grated by the district director. See section 240B(b) of the

Immigration and Nationality Act; 8 C.F.R. §§ 1240.2(c), (f).

In the event the alien fails to so depart, the alien shall be

removed as provided in the Immigration Judge’s order.

NOTICE: If the alien fails to depart the United States

within the time period specified, or any extensions granted by

the district director, the alien 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 Immigration and Nationality Act. See section 240B(d) of

the Act.

/s/

FOR THE BOARD

Sa

APPENDIX C

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

San Diego, California

NO. A 79 156 467

[Filed: April 30, 2003]

In the Matter of: Jose Antonio Macias-Placencia

Respondent

IN REMOVAL PROCEEDINGS

Charge: Section 212(a)(6)(A)(i) of the Immigration and

Nationality act (present without admission or parole).

Applications: Cancellation of removal for certain non-

permanent residents under Section 240A(b)(1) of the

Immigration and Nationality Act.

On Behalf of Respondent: On Behalf of Service:

Murray D. Hilts Katherine Stuever

1011 Camino Del Rio South Assistant District Counsel

Suite 350 Department of

San Diego, California 92108 | Homeland Security

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent herein is a native and citizen of Mexico.

He was place under removal proceedings on August 21, 2002

6a

with the issuance of a Notice to Appear (Exhibit 1). In this

document the Government alleges that the respondent is not

a citizen or national of the united States but is a native and

citizen of Mexico who arrived in the United States at or near

Tecate, California on or about September 9, 1989. The

Government alleges the respondent was not them admitted or

paroled after inspection by an Immigration officer and the

respondent was charged with removability under Section

212(a)(6)(A)(i) of the Immigration and nationality Act as an

alien present in the united States without being admitted or

paroled or who arrived in the United States at any time or

place other than as designated by the Attorney General.

During the course of these proceedings, the respondent,

through counsel, admitted the truth of the factual allegations

contained in the Notice to Appear and conceded removabilty

on the basis of the charge set forth therein (see Exhibit 2).

Based upon these admissions and concessions, I find the

respondent’s removabilty has been properly established as

required by law.

The respondent had made an application for cancellation

of removal pursuant to the provisions of Section 240A(b)(1)

of the Immigration and Nationality Act. Alternatively, the

respondent requests voluntary departure at the conclusion of

proceedings.

Section 240A(b) provides that the attorney general may

cancel removal of, and adjust to the status of an alien lawfully

admitted for permanent residence, an alien who is

inadmissible or deportable from the United States if he has

been physically present in the United States by a continuous

period of not less than 10 ears immediately receding the date

of his application, but during all of such period he has been a

person of good moral character and he establishes that his

ote i ashecel aaa) india AN a

Abe ASAD Sables lar beeen ¥ 40

Ta

removal would be result in exceptional and extremely unusual

hardship to his spouse, parent, child who is a united States

citizen or alien lawfully admitted for permanent residence.

If the respondent established that he meets these statutory

requirements, he must also show that he is deserving of this

extraordinary form of a relief as a matter of discretion.

The respondent has submitted his application for

cancellation of removal along with several supporting

documents (see group Exhibit3). At page 2 of this application,

item 25, the respondent has candidly and forthrightly admitted

that in 1994 he was voluntarily returned to Mexico by the

Immigration officials of the United States. His application

indicates that approximately four hours later he returned to

the United States without being inspected and admitted by and

Immigration officer. The respondent concedes, through

counsel, that this voluntary return was under a threat of the

institution of deportation or removal proceedings.

In the case of In re Romalez, 23 I&N Dec. 423 (BIA

2002), the Board of Immigration Appeals held that for

purposes of determining eligibility for cancellation of removal

for non-permanent residents 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. It would appear, based upon the

information in the respondent’s application and the

concessions made on his behalf by counsel that he falls

squarely within the provisions of the Romalez case. The

Romalez decision is binding in this court. At the time the

respondent suffered a voluntary return or voluntary departure

under threat of institution of deportation or removal

proceedings, the continuous physical presence that he had

acquired in the United States was deemed to end. At that time,

8a

the respondent had been in the United States for five years or

less. At the time of that voluntary return, it does not appear

that the respondent would have been eligible for or qualified

for any relief from removal or deportation other than through

the voluntary departure process.

The court also notes that the 9" Circuit Court of Appeals

has ruled in the case of Vasquez-Lopez v. Ashcroft that a

voluntary return at the hands of Immigration officials

interrupts the requisite continuous physical presence for

cancellation of removal proceedings. In that case, the

respondent had illegally entered the United States in 1988 and

later made an application for cancellation of removal for non-

permanent residents. During the course of his removal

proceedings he admitted that at some point during the period

from 1992 to 1994 he was arrested by Immigration

authorities, was granted voluntary departure and was escorted

to Mexico by the border patrol, shortly thereafter reentering

the United States illegally. In considering whether or not that

voluntary departure in lieu of removal interrupted the

requisite continuous physical presence, the respondent was

required to show for cancellation of removal. The 9" Circuit

Court of Appeals stated that under the law existing at the time

of Vasquez’ departure from Mexico a voluntary departure

under threat of coerced deportation did constitute a break in

continuous physical presence. The 9" Circuit noted that it had

stressed that those types of departures although termed

voluntary, were in fact coerced by threats of deportation. The

9" Circuit stated “such departures were in lieu of deportation

and accepted [by the alien as] the lesser of two evils.” The 9"

Circuit went on to state that “as such the alleged voluntary

departures were the result of an implied agreement that [the

alien] would not return. Otherwise, there would be no reason

behind the procedure of voluntary departures in lieu of

deportation proceedings.” In the Vasquez case the respondent

9a

acknowledged that a break in his continuous physical presence

occurred under the law as it existed at the time of the

departure, but insisted that Congress has since altered

applicable law. More particularly the respondent made

reference to the cancellation of removal statute adopted by

Congress in 1996 which, at Section 240A(b)(1)(2) described

termination of continuous physical presence and the treatment

of certain breaks in physical presence. The respondent pointed

out that the statutory provisions deleted the portion of the

prior statute excusing the absences that were “brief, casual

and innocent and did not meaningfully interrupt the

continuous physical presence.” The respondent argued that

Section 240A(b)(2) substituted for this deleted wording. The

respondent argued that Congress had established a new bright

line rule that all absences are to be ignored if they last less

that 90 days and do not exceed 180 days in the aggregate.

The 9" Circuit Court of Appeals disagreed with this

argument noting that while the statute provides some

incentives to an alien to apply for voluntary departure and to

avoid removal proceedings, nothing therein suggests that an

alien who commits to that departure in order to avoid

proceeding is entitled to continue to accruing presence sO as

to become eligible for other discretionary relief. The 9"

Circuit Court of Appeals concluded that the voluntary

departure to which the respondent therein admitted was

interruptive of the continuous physical presence requirement

of the cancellation of removal stature. The respondent was

fuund to be ineligible for cancellation of removal.

Following the Romalez case decided by the Board of

Immigration appeals and the Vasquez-Lopez case decided by

the 9" Circuit Court of Appeals, the Court herein concluded

that the respondent is precluded from establishing the requisite

ten years continuous physical presence by virtue of his

10a

voluntary return in 1994. I conclude that the respondent is

statutorily ineligible for the requested relief and his

application for this relief must, therefore, be denied.

The respondent alternatively requests voluntary departure

at the conclusion of the proceedings under Section 240B(b) of

the Act. The respondent represents, through counsel, that he

meets the statutory requirement for this relief and the

Government is not opposed to granting this lesser form of

relief.

To qualify for this relief the respondent must show that he

has been physically present in the United States for at least

one year immediately preceding the date the Notice to Appear

was served, that he has been a person of good moral character

for at least five years immediately preceding the application

and further establishes by clear and convincing evidence that

he has the means to the depart the United States and the

intention to do so. It has been represented that the respondent

meets these requirements. Permission to depart voluntarily

under this section is not a valid a period exceeding 60 days

and any alien permitted to depart voluntarily under this

section is required to post a voluntary departure bond in an

amount necessary to insure that he will depart to be

surrendered upon proof that he has departed the United States

within the time specified. If an alien is permitted to depart

voluntarily under this section and fails to timely do so the

alien shall be subjected 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 voluntary departure, cancellation of

removal, adjustment of status, change of status and registry.

The respondent herein will be granted voluntary departure

at the conclusion of the proceedings.

/

!

/

i

|

lla

ORDER

IT IS HEREBY ORDERED the respondent’s application

for cancellation of removal for non-permanent residence be

and the same as hereby denied.

IT IS FURTHER ORDERED that the respondent be

granted in lieu of an order of removal, the privilege of

voluntary departure at the conclusion of proceedings, such

departure to occur on or before June 30, 2003.

IT IS FURTHER ORDERED that should the respondent

fail to timely depart the United States, without further notice

or proceedings the respondent shall thereupon be ordered

removed from the United States to Mexico on the basis of the

charge contained in the Notice to appear.

IT IS FURTHER ORDERED that as a condition to this

grant of voluntary departure the respondent must post a

voluntary departure bond in the sum fo $500 no later than the

close of business on May7, 2003.

IT IS FURTHER ORDERED that should the respondent

fail to timely post said bond with the Department of

Homeland Security the privilege of voluntary departure shall

be withdrawn without further notice or proceeding and the

respondent shall thereupon be ordered removed from the

United States to Mexico on the basis of the charged contained

in the Notice to Appear.

/s/

Kenneth A. Bagley

Immigration Judge

No. 04-1300

In the Supreme Court of the Gnited States

JOSE ANTONIO MACIAS-PLACENCIA, PETITIONER

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

ALISON R. DRUCKER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether, for purposes of determining eligibility for

cancellation of removal under & U.S.C. 1229b(b), a

voluntary departure from the United States under

threat of removal ends a period of continuous physical

presence.

(1)

TABLE OF CONTENTS

Page

CORIOTIA IR et ee ee ee oe eae ]

CS er oe aa Ponca peace us eu l

PN rg os eee So i eta oes l

PPE Se ee ee ee tao beacause roe eo 4

ORUENION 5 sro ks hae ee i)

TABLE OF AUTHORITIES

Cases:

Hernandez-Luiz vo INS, 869 F.2d 496 (9th Cir.

ROM eg a as Ve a oe ea es oes a LGW 5

INS v. Aguirre-Agiirre, 526 US. 415 (1999) oe, 7

Rivera-Jimenez vo INS, 214 F.3d 1215 (0th Cir.

TROD sede Wok A oes ENE EERE a ES S

Romatlez-Aleaide, In re, 23 1. & N. Dee. 423

1A RiSR GS Ae Te eae atin suits as np ester a vere yo 7

Vasques-Lopez v. Ashcroft, 343 F 3d 961 (9th Cit

WRN i aus ss ees aa de a a 4.6

Statutes and regulation:

Homeland Security Act of 2002, Pub. L. No.

ie Ba HE EL by ape 2, 9 Saye Ra rE ren re ie mua 3

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No.

104-208, Div. C. 110 Stat. 3009-546 (8 ULS.C.

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Nicaraguan Adjustinent and Central American

Relief Act, Pub. 1. No. 105-100, Tit. Ef,

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J

In the Supreme Court of the Gnited States

No. 04-1300

JOSE ANTONIO MACIAS-PLACENCIA, PETITIONER

&,

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. la-2a) is

unreported. The order of the Board of Immigration Ap-

peals (Pet. App. 3a) and the decision of the immigration

judge (Pet. App. 4a-12a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 26, 2004. The petition for a writ of certiorari was

filed on January 18, 2005. The jurisdiction of this Court is

invoked under 28 U.S.C, 1254(1).

STATEMENT

1. Before the enactment of the Illegal Immigration Re-

form and Immigrant Responsibility Act of 1996 (ITRIRA),

Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (8 U.S.C.

(1)

z

1101 ef seq.), one of the forms of discretionary relief avail-

able in immigration proceedings was suspension of deporta-

tion. To qualify for suspension of deportation, an alien was

required to have maintained continuous physical presence

in the United States for the seven-year period immediately

preceding the date of the application. S ULS.C. 1254000)

(1994). An alien who temporarily left the United States was

not “considered to have failed to maintain continuous physi-

cal presence in the United States * * * if the absence

from the United States was brief, casual, and innocent and

did not meaningfully inverrupt the continuous physical pres-

ence.” SULS.C. 12541002) (1994).

HIRIRA repealed the suspension-of-deportation provi-

sion and enacted a new form of discretionary relief entitled

cancellation of removal. S U.S.C. 1229b. For an alien who

is not a lawful permanent resident, eligibility for cancella-

tion of removal requires continuous physical presence in the

United States for the ten-vear period immediately preced-

ing the date of the application. The cancellation provision

contains a section entitled “Termination of continuous pe-

riod.” which specifies, jvter alia, that the issuance of a No-

tice to Appear generally ends a period of continuous physi-

cal presence. S U.S.C. 1229b(D01). The provision also es-

tablishes that a single departure from the United States

that lasts for more than 90 days, or multiple departures

that last for more than LSO days in the aggregate, interrupt

continuous physical presence. 8S ULS.C. 1229bQD¢2).

2. Petitioner is a native and citizen of Mexico. He en-

tered the United States without inspection on or about Sep-

tember 9, 1989. In August 2002, the Immigration and Nat-

uralization Service (INS) commenced removal proceedings

against petitioner uncer S UoS.C. TIS2G0(6)CA) as an

3

alien present in the United States without being admitted

or paroled. Pet. App. 5a-6a.!

a. At his removal hearing, petitioner conceded that he

was removable from the United States, but he applied for

cancellation of removal under 8 U.S.C. 1229h(b). Pet. App.

ba. Petitioner admitted in his application that, in 1994, he

had been apprehended by immigration officials and was

granted an administrative voluntary departure in lieu of

being placed in deportation proceedings. See id. at Ta; 8

ULS.C. 1252(b) (1994) (allowing INS to grant administrative

voluntary departure, without commencing deportation pro-

ceedings, to an alien who “admits to belonging to a class of

aliens who are deportable”).” Petitioner also admitted that,

approximately four hours after he voluntarily departed for

Mexico, he returned to the United States without inspec-

tion. Pet. App. 7a.

The immigration judge (J) denied petitioner's appli-

cation for cancellation of removal on the ground that peti-

‘On March 1, 2003, the INS ceased to exist as an agency within the

Department of Justice, and its enforcement functions were transferred

to the Department of Homeland Security (DHS). Homeland Security

Act of 2002, Pub. L. No. 107-296, 116 Stat. 2155. This brief continues

to refer to the INS with respect to the events that predated the re-

organization.

~ Before the enactment of ITRIRA, one statutory provision gov-

erned the grant of voluntary departure before the initiation of deporta-

tion proceedings (/.¢., “administrative” voluntary departure), & ULS.C.

1252(b) (1994), and a separate provision governed the grant

of voluntary departure during deportation proceedings, & U.S.C.

125-4e) 1) 1994), After TTRIRA, a single provision confers authority to

grant voluntary departure both before and after the commencement of

removal proceedings. See & U.S.C. 1229¢(00) (stating that the

“Attorney General may permit an alien voluntarily to depart the United

States * * © in heu of being subject to [removal] proceedings * * * or

prior to the completion of such proceedings”).

4

Lioner Was “precluded from establishing the requisite ten

years continuous physical presence by virtue of his volun-

tary return [to Mexico} in 1994." Pet. App. 9a-10a. The LJ

relied in part on Vasque:-Lopes ve Ashcroft, 345 F353 96)

(Mth Cir. 2003), which held that administrative voluntary

departure terminates i period of continuous physical pres-

ence for purposes of determining eligibility for cancellation

of removal. See Pet. App. Sa-Ya. The LJ granted petitioner

voluntary departure and ordered that he be removed if he

did not timely depart. /d. at 1la-12a.

b. On June 24, 2004, the Board of Iminigration Appeals

(BLA) summarily affirmed the decision of the immigration

Judge. Pet. App. 3a.

3. Petitioner filed a petition for review in the court of

appeals. On July 28, 2004, the court issued an order re-

questing petitioner to show cause why the petition for re-

view should not be summarily denied. Pet. App. 2a. On

October 14, 2004, the court summarily denied the petition,

ruling that the questions raised were “so insubstantial as

not to require further argument.” /bid. (citing, (ater alia,

Vasquer-Lopes, supra).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or another court

of appeals. Further review is unwarranted.

1. Petitioner argues (Pet. 4-19) that the court of appeduls

erred in relying on Vesqnet-Loper Vv. Asherotl, AS F.3d 961

(th Cir. 2003), as a basis for denying his petition for re-

view. In petitioner's view, Vasqaer-Lope erred in holding

that an administrative voluntary departure in lieu of depor-

tation terminates continuous physical presence for pur-

poses of determining eligibility for cancellation of removal.

Petitioner's argument s vrounded in his contention (Pet. 6)

»)

that IIRIRA effected a “significant change in the continu-

ous physical presence” requirement.

Petitioner observes (Pet. 7) that, prior to ITRIRA, a

“brief, casual, and innocent” departure from the United

States did not interrupt a period of continuous physical

presence under the pre-existing suspension-of-deportation

provision. & U.S.C. 1254(b)(2) (1994). An administrative

voluntary departure did not qualify as a “brief, casual, and

innocent” departure, and therefore was deemed to end a

period of continuous physical presence. See Hervandez-

Luiz v. INS, 869 F.2d 496 (9th Cir. 1989). Petitioner ob-

serves that ITRIRA’s cancellation-of-removal provision

does not retain an explicit exception for “brief, casual, and

innocent” departures, but specifies two relevant situations

that terminate a period of continuous physical presence: (i)

if the alien departs on any single occasion for a period ex-

ceeding 90 days or on multiple occasions for a cumulative

period exceeding 180 days, 8S U.S.C. 1229b(d)(2); or (ii) if

the alien is served with a Notice to Appear for removal pro-

ceedings, 8 U.S.C. 1229b(d)1).. Petitioner concludes (Pet.

7-9) that, after ITRIRA, wo departure of less than 90 days

can be considered to interrupt a period of continuous physi-

cal presence, at least as long as no Notice to Appear has

been served by the time of the departure.

Petitioner's argument lacks merit and was cerrectly

rejected by the cowt of appeals in Vasquez-Lopez. The fact

that, under ITRIRA, avy departure of more than 90 days

terminates a period of continuous physical presence in no

way establishes that vo departure of less than 90 days ter-

minates a period of continuous physical presence. TTRIRA

established-an automatic rule for a departure that exceeds

) days, but did not purport to establish the opposite auto-

matic rule for a departure of less than 90 days. Indeed, the

provision establishing the automatic 90-day (and 180-day)

6

ceiling is entitled “Treatment of certain breaks in pres-

ence,” & U.S.C, 1229b(d)2) (emphasis added), confirming

that the provision does not establish an exclusive rule for

determining whether a departure terminates a period of

continuous physical presence. See Vasquez-Lopez, 343 F.3d

at 972.

The “stop time” rule in 8 U.S.C. 1229b(d)0 (A), which

establishes that the issuence of a Notice to Appear gener-

ally is deemed to end a period of continuous physical pres-

ence, supports the conclusion that an administrative volun-

tary departure terminates a period of continuous physical

presence. Petitioner does not dispute that a period of con-

tinuous physical presence is terminated by a voluntary de-

parture granted after the commencement of removal pro-

ceedings (/.¢., after issuance of a Notice to Appear). An

administrative voluntary departure in lieu of formal depor-

tation, granted before the commencement of removal pro-

ceedings, should be treated no differently.

Indeed, the statutory provision governing voluntary

departures specifies thar the grant of an administrative

voluntary departure is “in leu of” subjecting the alien to

removal proceedings. S US.C.1229¢(a(1).. An alien who is

granted administrative voluntary departure “in lieu of ~

being subject to removal proceedings—no less than an

alien who is served with a Notice to Appear for removal

proceedings—ceases to accrue “continue physical pres-

ence” in the United States for purposes of maintaining eli-

gibility for cancellation of removal. See Vasquer-Lopes, 543

F.3d at 973-974. The very premise of voluntary departure

is that the alien agrees te /eave the country (and not to re-

turn except as a lawful entrant). That premise is squarely

inconsistent with maintaining covtimeed physical presence

Within the country. See -d. at 974. A contrary conclusion

would give an alien who agrees to voluntarily depart an

7

incentive to return unlawfully within 90 days so that he ean

maintain eligibility for cancellation of removal. Congress

could not have intended that result.

2. The decisions below and in Vasqiez-Lopez are con-

sistent with the BIA’s decision in Jv re Romalez-Alcaide, 3

I. & N. Dee. 423 (2002) (en bane). The BIA concluded in

Romeatlez-Alcaide that an administrative voluntary depar-

ture terminates a period of continuous physical presence

for purposes of establishing eligibility for eancellation of

removal.

The factual circumstances at issue in Romalez-Alcaide

precisely parallel those in this case. There, as here, the

alien was granted administrative voluntary departure in

1994, but he unlawfully returned within one or two days. 23

I. & N. Dec. at 423. In coneluding that his voluntary depar-

ture terminated the alien’s continuous physical presence,

the BIA relied on: (i) the language and purpose of the rele-

vant statutory provisions, including the “stop time” provi-

sion, the provision establishing a 90-day and 180-day ceiling

for departures, and the provisions governing voluntary (le-

parture; (ii) the pre-ITRIRA decisions holding that volun-

tary departure under threat of deportation breaks a period

of continuous physical presence; and (iii) regulations pro-

mulgated by the Attorney General under the Nicaraguan

Adjustment and Central American Relief Act (NACARA),

Pub. L. No. 105-100, Tit. II, § 203(b), 111 Stat. 2198, which

provide that the voluntary departure of aliens subject to

NACARA terminates their continuous physical presence in

the United States, see 8 C.F.R. 240.64(b)(3). As the court

in Vosqrez-Lopes correctly concluded, the BIA’s decision

in Romalez-Alcaide is entitled to deference. See, e.g. INS

Vv. Aguiive-Aguirre, 520 U.S. 415, 425 (1999) (observing that

the “BIA should be accorded Chervou deference as it gives

ambiguous statutory terms concrete meaning through a