Garcia v. Holder, Jr., No. 12-2259 (4th Cir. 2013)
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Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's order denying his application for cancellation of removal on the ground that he failed to meet the continuous physical presence requirement of 8 U.S.C. 1229b. The BIA has held that, pursuant to In re Romalez-Alcaide, an alien's continuous physical presence terminated when he voluntarily departed the United States under threat of removal. The court concluded that, in light of the fact that section 1229b was silent as to whether an alien's voluntary departure under threat of removal terminated his continuous physical presence in the country, the BIA's interpretation of the statute was reasonable. The court concluded that petitioner failed to meet his burden of proving that he was eligible for relief and denied the petition for review.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2259 BALTAZAR OLEA GARCIA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 18, 2013 Decided: October 16, 2013 Before WILKINSON, MOTZ, and FLOYD, Circuit Judges. Petition for review denied by published opinion. wrote the opinion, in which Judge Wilkinson and joined. Judge Motz Judge Floyd ARGUED: Jeremy Layne McKinney, MCKINNEY PERRY & COALTER, Greensboro, North Carolina, for Petitioner. Brendan Paul Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. DIANA GRIBBON MOTZ, Circuit Judge: In this appeal, Baltazar Olea Garcia challenges an order of the Board of Immigration Appeals ( BIA ) denying his application for cancellation of removal on the ground that he failed to meet the continuous § 1229b. physical presence requirement of 8 U.S.C. We deny Garcia s petition for review. I. In 1995, Garcia, a native and citizen of Mexico, entered the United States illegally. In 2001, he left this country to attend his father s funeral. When Garcia returned to the United States a ( INS ) week later, officers Immigration detained him at and Naturalization the border and Service took his fingerprints and photograph. According to Garcia, INS officers offered to him the opportunity appear before an immigration judge, but he declined, opting to return to Mexico voluntarily. Several days later, he reentered the United States undetected. In 2009, the Department of Homeland Security ( DHS ) initiated removal proceedings against Garcia. He conceded his removability, cancellation but filed an application for of removal. At a 2011 hearing on the merits of his application, Garcia testified about Mexico border. his 2001 apprehension at the United States- He remembered being stopped by INS officers, 2 whom he believed informed him of his right to appear before an immigration that . . . judge. I could Garcia sign testified [a] that voluntary [t]hey departure told me deportation paper, or if I wanted to, I . . . could have a lawyer to . . . see the [immigration] [j]udge. AR 109. Unable to afford an attorney, Garcia chose to return to Mexico voluntarily. The DHS introduced a US-VISIT report 1 indicating that Garcia had been fingerprinted and photographed in connection with the 2001 border stop. The DHS did not offer any departure form signed by Garcia, nor did the US-VISIT report indicate whether Garcia had testimonial signed or one. otherwise Garcia - offered expressly no evidence - whether he addressing signed any documentation. The immigration judge concluded that Garcia was statutorily ineligible for cancellation of removal because he could not show that he preceding continuously ten years. resided in Citing the the United BIA s States decision for in In the re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002), the judge held 1 The United States Visitor and Immigrant Status Indicator Technology Program ( US-VISIT ) is an integrated, automated entry-exit system that records the arrival and departure of aliens; verifies aliens identities; and authenticates aliens travel documents through comparison of biometric identifiers. United States Visitor and Immigrant Status Indicator Technology Program ( US-VISIT ), 69 Fed. Reg. 53,318-01 (Aug. 31, 2004) (to be codified at 8 C.F.R. pts. 215, 235, 252). In 2013, the Office of Biometric Management ( OBIM ) replaced US-VISIT. 3 that an alien s physical presence terminates if he voluntarily departs the country instead of submitting to removal - at least insofar as his departure documented process. occurs pursuant to a formal, AR 310 (quoting In re Avilez-Nava, 23 I. & N. Dec. 799, 805 (BIA 2005)). The immigration judge concluded that Garcia s testimony, coupled with the DHS s US-VISIT report, sufficed to show that Garcia had been formally excluded from the United States, ending his continuous presence here. After the BIA affirmed, Garcia noted a timely appeal. II. Removable aliens may petition the Attorney General cancellation of removal pursuant to 8 U.S.C. § 1229b (2006). for To prevail, a petitioner must prove that he has been physically present in the United States for a continuous period of not less than 10 years prior to the filing of removal proceedings. Id. § 1229b(b)(1)(A); see also Salem v. Holder, 647 F.3d 111, 116 (4th Cir. 2011) (alien bears burden of proving eligibility for cancellation of removal by preponderance of the evidence). statute sets forth several circumstances that terminate alien s continuous presence: (1) Termination of continuous period For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) . . . when 4 The an the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title . . . . (2) 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) of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. 8 U.S.C. § 1229b(d). In addition to the conditions specified in the statute, the BIA has held that an alien s continuous physical presence terminates when he voluntarily departs the United States under threat of removal. Romalez-Alcaide, 23 I. & N. Dec. at 429. The BIA reasoned that it would be incongruous for an alien s physical presence to terminate if he were formally deported, but for his physical presence to continue if he voluntarily departed so as to avoid deportation. Although an alien s Id. at 426-27. departure under threat of removal renders him ineligible for cancellation of removal, the BIA has clarified that an alien s departure is not disqualifying if INS officers simply turn him away at the border. & N. Dec. at 805. Avilez-Nava, 23 I. In this circumstance, the INS had not made [the alien] aware of the opportunity for exclusion proceedings, and thus his encounter with immigration officials informal to count as a departure under threat of removal. 5 is too Id. The BIA further explained in Avilez-Nava that to interrupt continuous presence under 8 U.S.C. § 1229b(d), an alien s departure must exhibit some level of formality, documented by some sort of record. Id. at 805-06. Evidence of a formal, documented process includes testimony or documentary evidence, such as voluntary departure appropriate . . . records. forms, affidavits, or other Id. at 806. Garcia poses two arguments on appeal. We consider each in turn. III. Garcia initially contends that the BIA s decision in Romalez-Alcaide conflicts with the unambiguous text of § 1229b. When a litigant contests an agency s interpretation of a statute, we employ the familiar analysis prescribed by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). William v. Gonzales, 499 F.3d 329, 331 (4th Cir. 2007). Chevron review involves a two-step analysis. First, we must assess whether the statute is silent or ambiguous with respect to the specific issue before us. 843. Chevron, 467 U.S. at If so, we must determine whether the agency s construction is reasonable. Id. An agency s reasonable interpretation of a 6 statute will prevail, even if a better construction is possible. Id. Here, voluntary section 1229b departure is under silent threat as of to whether removal continuous physical presence in the country. an alien s terminates his The statute does not define continuous physical presence, but merely specifies situations in which an alien s continuous presence shall be deemed to end. 8 U.S.C. § 1229b(d)(1). that continuous an alien s presence The statute provides terminates when removal proceedings commence or when he commits certain kinds of crimes. See id. It further specifies that continuous presence terminates if the alien [departs] the United States for any period in excess of 90 days or for any period in the aggregate exceeding 180 days. See id. § 1229b(d)(2). Garcia contends that the latter provision constitutes the entire regulation of aliens breaks in presence. According to Garcia, if an alien departs the country for fewer than 90 days (or 180 days in aggregate), his continuous physical presence has not ended. We disagree. Although § 1229b(d)(2) specifies that certain breaks in presence render an alien ineligible for cancellation exhaustive continuous continuous of list removal, these of circumstance every physical physical presence. breaks The presence 7 do not constitute terminating statute terminates an alien s provides if the an that alien [departs] for more than ninety days; it does not provide that physical presence departs. Id. § 1229b(d)(2). In light interpretation terminates of is this if and only statutory reasonable. if the silence, That the alien the statute so BIA s renders departures in excess of ninety days breaks in presence does not preclude a regulation making certain absences of shorter duration also breaks in presence. Alcaide is sound. The BIA s logic in Romalez- Section 1229b(d)(1) terminates an alien s continuous physical presence when the DHS files a removal action against him. the Allowing an alien to evade termination by leaving country voluntarily would create a loophole that would frustrate the statutory framework. Garcia predates finds the promulgated. it significant statutory He notes language that that the pursuant under a BIA s to prior regulation which it was version of the Immigration and Nationality Act ( INA ), an alien could petition for suspension of deportation if he had been continuously present in the country for seven years - brief, casual, and innocent 1996). departures notwithstanding. Id. § 1254 (repealed Construing the old text, the BIA held that a voluntary departure under threat of deportation was not brief, casual, and innocent, and thus an alien who so departed was ineligible for statutory relief. See Hernandez-Luis v. INS, 869 F.2d 496, 8 498 (9th replacing Cir. 1989). In its brief, 1996, casual, Congress and amended innocent § 1229b(d)(2) s quantitative standard. the INA, language with Garcia argues that to give effect to this new language, the BIA must be prohibited from promulgating regulations identical to those issued under the predecessor statute. We disagree. inconsistent The BIA s decision in Romalez-Alcaide is not with a change in the law. By implementing a quantitative standard, Congress cabined the BIA s authority to define which departures innocent. This shift standard, however, by aliens from does a not are brief, qualitative evince to text entirely accords and quantitative Congress s eliminate the BIA s discretion altogether. section 1229b(d)(2) s a casual, intent to On the contrary, with the BIA s retention of some discretionary authority. We note that all of our sister circuits to have considered the question have found the BIA s construction permissible. Barrera-Quintero v. Holder, 699 F.3d 1239, 1245 (10th See Cir. 2012); Vasquez v. Holder, 635 F.3d 563, 570 (1st Cir. 2011); Ascencio-Rodriguez v. Holder, 595 F.3d 105, 112-13 (2d Cir. 2010); Mendez-Reyes v. Attorney Gen., 428 F.3d 187, 191-92 (3d Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir. 2004); Palomino v. Ashcroft, 354 F.3d 942, 944-45 (8th Cir. 2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217-18 (5th 9 Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972-73 (9th Cir. 2003) (per curiam). Like our sister circuits, we uphold the BIA s interpretation of § 1229b. IV. Alternatively, Garcia argues that even if Romalez-Alcaide controls, the BIA erred in applying its holding to the facts of his case. We eligibility for determinations of review decisions cancellation his substantial evidence. (4th Cir. 2011). BIA of continuous regarding removal physical - an alien s including presence - for See Ramos v. Holder, 660 F.3d 200, 203 To reverse, we must find that the evidence before the BIA was so compelling that no reasonable factfinder could fail to find eligibility for relief. INS v. Elias- Zacarias, 502 U.S. 478, 483-84 (1992); Elliott v. Adm r, Animal & Plant Health Inspection Serv., 990 F.2d 140, 144 (4th Cir. 1993). As announced in Avilez-Nava, the BIA regards an alien s departure as severing physical presence in the country only when the alien departs pursuant to a formal, documented process. 23 I. & N. Dec. at 805-06. 2 In this case, the BIA reasoned that 2 This court has yet to address whether a formal, documented process is necessary to sever an alien s continuous presence in the United States for purposes of cancellation of removal. (Continued) 10 Garcia s testimony, coupled with a US-VISIT report, established that he received a formal, documented process. AR 3. claims that establish formal documented ineffective this in evidence was departure, terminating insufficient rendering his his continuous to return Garcia to physical his Mexico presence here. The argument fails. Garcia s own testimony demonstrated the formality of the process he received. when the INS detained him, officers informed inadmissibility to the United States. that officers told him voluntarily, or if eligibility to enter testified: he that desired, the he a judge him of his Further, he testified could country. He testified that return could to Mexico determine Specifically, his Garcia They told me that . . . I could sign [a] voluntary departure deportation paper, or if I wanted to, I . . . could have a lawyer to . . . see the [immigration] [j]udge. AR 109. Accordingly, Garcia s situation differs from that of the alien involved in Avilez-Nava. Garcia was made aware of the opportunity for exclusion proceedings and understood that he could avail himself of procedures to determine his eligibility Because the Government does not suggest that the BIA could deny Garcia s application absent a formal process, we assume it is necessary to the BIA s disposition. 11 for entry. Cf. Avilez-Nava, 23 I. & N. Dec. at 805. We are not faced with an alien merely turned away at the border. Moreover, Garcia s process was See id. documented. The DHS introduced a US-VISIT report, which indicated that Garcia was stopped at the border and engaged with INS officers. To be sure, the report did not indicate the manner by which Garcia departed the country or what was said to him before he left. But it did state the date and time of Garcia s apprehension and showed that INS officers fingerprinted and photographed him. cannot conclude that the BIA erred in finding that We this document, together with Garcia s testimony, showed that Garcia departed the United States pursuant to a formal, documented process. Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005), on which Garcia relies, is not to the contrary. held that a fingerprinting departure. record did establishing not Id. at 1002. There, the Ninth Circuit fact of an alien s the fact of his formal establish the But in that case, the alien offered no testimony regarding the level of formality by which he departed the country. fingerprints, Though the officers interaction could formal or an informal departure. receipt of a formal process. detained have him and preceded took either his a Here, Garcia testified to his The US-VISIT report served only to 12 memorialize an encounter, the particulars of which were established by the alien s own testimony. The BIA s analysis and our conclusion comport burden-shifting standard of the INA. an As with the applicant for cancellation of removal, Garcia bore the burden of proving that he was eligible for relief. Salem, 647 F.3d at 116. To prevail, he had to show that he was not subject to a documented process by which he left the country. testimony was unclear. signed any documents On this point, Garcia s He did not expressly state whether he - or failed to sign any documents - leaving the BIA to guess whether he was eligible for relief. Our precedent against Garcia. counsels the BIA to resolve such ambiguities Id. at 120 ( where . . . the relevant evidence . . . is in equipoise, a petitioner has not satisfied his burden to prove eligibility for relief from removal. ). In accord with our directives, the BIA correctly rejected Garcia s application for cancellation of removal. V. For the reasons stated above, Garcia s petition for review is DENIED. 13
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