Delfino Vasquez-Lopez v. John Ashcroft, Attorney General

Citations: 343 F.3d 961; 2003 Daily Journal DAR 10421; 2003 U.S. App. LEXIS 18871Docket: 01-71827

Court: Court of Appeals for the Ninth Circuit; September 11, 2003; Federal Appellate Court

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The Ninth Circuit Court of Appeals addressed the case of Delfino Vasquez-Lopez, who sought to review an order from the Board of Immigration Appeals regarding his eligibility for cancellation of removal. The court filed an amended opinion on January 13, 2003, and subsequently denied both the panel and en banc rehearing petitions. The ruling emphasized a significant change in the definition of "continuous physical presence" established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which replaced the previous standard allowing for "brief, casual, and innocent" departures with stricter guidelines that classify any departure exceeding 90 days or a cumulative total of 180 days as a failure to maintain continuous presence.

Judge Berzon, dissenting from the denial of rehearing en banc, criticized the panel's decision for reverting to pre-IIRIRA standards, which undermined Congress’s intent with the statutory amendments. Berzon contended that Vasquez-Lopez’s departure, although under threat of deportation and less than 90 days, was incorrectly deemed disqualifying under the new law. She argued that the court's interpretation disregarded the clear language changes made by Congress, which aimed to ensure that the "continuous physical presence" requirement was applied as intended without judicial exceptions. Berzon referenced the Supreme Court's ruling in INS v. Phinpathya, asserting that deviations from statutory language could improperly shift authority away from Congress.

Congress amended immigration law to create an exception for absences deemed "brief, casual, and innocent" that do not significantly disrupt an alien's continuous physical presence in the U.S. This amendment was applied in Hernandez-Luis v. INS, which determined that voluntary departure due to deportation threat does not qualify as such an absence. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) later removed this exception, establishing a strict rule where any single absence over 90 days or cumulative absences over 180 days disqualifies an alien from meeting the continuous physical presence requirement. Although the former standard persists in other sections of the law, the court criticized attempts to reinstate the deleted standard, emphasizing that such judicial amendments are inappropriate regardless of whether they restrict or enhance alien rights. The court asserted that Section 1229b(d)(2) should be interpreted to allow for a 90-day absence exception, provided cumulative absences do not exceed 180 days. Additionally, the court questioned the Chevron deference applied to the Board of Immigration Appeals' interpretation of the post-IIRIRA statute, arguing that the BIA's decision improperly adds to the statute rather than faithfully implementing congressional intent. It reaffirmed that administrative agencies lack the authority to create rules that contradict the law as enacted by Congress.

The court found that the Board of Immigration Appeals (BIA) misinterpreted the statutory provision regarding breaks in continuous physical presence as set forth in 8 U.S.C. § 1229b(d)(2). The BIA's interpretation rendered this provision effectively meaningless by failing to recognize any implicit exceptions for shorter absences, contradicting the precedent established in Phinpathya. Additionally, the BIA's reliance on the section's title, "Treatment of certain breaks in presence," was deemed misleading since Congress's intent was to refer to other relevant sections of the Immigration and Nationality Act (INA), rather than to imply limitations created by the agency. The majority's consideration of regulations related to the Nicaraguan Adjustment and Central American Relief Act (NACARA) was also criticized for being inappropriate, as those regulations apply specifically to NACARA cases and do not support the BIA's interpretation. Lastly, the BIA's argument that an alien who departs under a removal order could still be eligible for cancellation of removal was deemed erroneous, as the respondent in question was never subject to a removal order, thereby rendering the reinstatement provision of § 1231(a)(5) irrelevant to his situation.

The Romalez-Alcaide majority fails to establish a solid statutory basis for its decision, instead relying on an interpretation of IIRIRA's intent to deter illegal immigration by discouraging aliens from prolonging their stays to gain benefits. However, this interpretation misreads the provisions for cancellation of removal in the INA. The panel's use of IIRIRA's "stop time" rule is criticized, as it incorrectly applies this rule to aliens like Vasquez-Lopez, who are not subject to removal proceedings and did not receive a Notice to Appear. Congress intentionally excluded those accepting voluntary departure from the "stop time" rule, highlighting a distinction in treatment between aliens facing removal and those not in proceedings. The panel's reluctance to allow such aliens to seek relief reflects a limited understanding of immigration law, which has become more restrictive post-IIRIRA. Nonetheless, Congress intended for some exceptions to exist, acknowledging the need to assess cases where an alien can demonstrate exceptional hardship to a qualifying family member. This approach aligns with Congress's recognition that long-term presence might warrant an examination of an individual's case before deportation. The complexity and counterintuitive nature of immigration law are acknowledged, with the panel's reasoning seen as failing to adhere to established statutory interpretation principles and the broader context of the immigration system.

Cancellation of removal serves as an example where illegal aliens may benefit by remaining undetected for ten years, as obtaining relief is highly contingent and resembles a lottery. The overall intent of Congress in the statute is to facilitate the removal of illegal aliens, yet it does provide some avenues for relief, distinguishing between those who may qualify for cancellation of removal and those who do not. An alien's repeated illegal entries following an administrative voluntary departure are not determinative in assessing eligibility for relief. The assessment of "good moral character" can include considerations of multiple illegal entries without precluding other factors.

The interpretation of the law, particularly section 1229b(d)(2), is left to agency discretion on a case-by-case basis, contrasting with the panel's interpretation, which imposes a blanket exclusion not present in the statute. Congress chose not to include certain standards or rules that would have affected eligibility for cancellation of removal, indicating intentionality in their legislative choices. The actions of the panel and the Board of Immigration Appeals (BIA) are characterized as legislative overreach, as they assume to correct perceived legislative gaps, which is beyond their authority. The dissent from the denial of rehearing en banc emphasizes adherence to the statutory language as it stands, rather than as it might have been if Congress had different intentions. The unchanged provisions regarding "brief, casual, and innocent" entries further support the notion that Congress intentionally excluded such exceptions in the amended Immigration and Nationality Act (INA).

In a Chevron analysis, the initial consideration is whether Congress has explicitly addressed the specific issue at hand. If Congress has done so, the inquiry concludes, and courts must adhere to Congress's clear intent. Agency interpretations of ambiguous statutes may be granted deference. Relevant provisions state that an alien's absence does not disrupt continuous physical presence if linked to battering or extreme cruelty, and such absences do not count toward specific absence limits. For NACARA applicants, a continuous physical presence is deemed broken if an alien departs the U.S. for more than 90 days or cumulatively exceeds 180 days, unless the absence is shown to be casual and innocent. The continuous physical presence is also terminated upon removal or voluntary departure under threat of deportation. If an alien illegally reenters after removal or voluntary departure, the previous removal order is reinstated, and the alien is ineligible for relief. Cancellation of removal is limited to a small number of aliens, with a maximum of 4,000 grants per fiscal year. The case involves Petitioner Delfino Vasquez-Lopez, who sought review of a BIA decision stating his voluntary departure broke his continuous physical presence necessary for cancellation of removal. The BIA's interpretation of the cancellation statute is deemed deserving of Chevron deference, leading to the denial of the petition for review. Petitioner admitted to illegal reentry after a period of deportability and had his cancellation application denied based on insufficient continuous physical presence.

When a statute has multiple interpretations, courts defer to the interpretation provided by the relevant administrative agency, as established in Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc. This deference is warranted when the agency's interpretation is reasonable, especially in cases of ambiguity or Congressional silence. The Board of Immigration Appeals (BIA) is entitled to Chevron deference in its adjudications, particularly regarding ambiguous statutory terms clarified through case-by-case decisions. Judicial deference is particularly significant in the immigration context, where officials address sensitive political matters.

In the context of a cancellation of removal application, the Attorney General can grant discretionary relief if the petitioner meets specific criteria, including having continuous physical presence in the U.S. for at least ten years. The petitioner applied for cancellation in 1998 but had previously been granted administrative voluntary departure in the early 1990s. If this departure interrupted his continuous physical presence, he would not have met the ten-year requirement. Historical law indicated that voluntary departure under the threat of deportation constituted a break in physical presence, as affirmed in Hernandez-Luis v. I.N.S. and Barragan-Sanchez v. Rosenberg. Both cases rejected claims that such departures could be deemed brief and innocent, emphasizing that these were coerced departures. The commitment to depart precluded the possibility of casual absence, affirming that such departures could not be disregarded as insignificant.

The Petitioner acknowledges a break in his continuous presence in the U.S. as defined by the law at the time of departure but argues that subsequent Congressional amendments have changed the applicable law. He cites a subsection of the cancellation of removal statute from 1996, which states that an alien fails to maintain continuous physical presence if they depart for over 90 days or for periods exceeding 180 days in total (8 U.S.C. 1229b(d)(2)). The Petitioner asserts that this provision replaces the previous statute's allowance for "brief, casual, and innocent" absences, establishing a new rule that disregards absences under 90 days or within the 180-day aggregate.

The Board of Immigration Appeals (BIA) holds that the definition of "continuous physical presence" remains unchanged and that voluntary departures constitute a break in continuous physical presence. This position was reaffirmed in the en banc decision of In re Romalez-Alcaide, which addressed similar circumstances and rejected the Petitioner's interpretation of 1229b(d)(2) as excusing voluntary departure absences of less than the specified duration. The Romalez-Alcaide court referenced the continuous physical presence requirement from 1229b(b)(1) and the precedent set in I.N.S. v. Phinpathya, emphasizing that, without statutory exceptions, any departure disrupts continuous physical presence. The court acknowledged that while Congress had previously allowed for certain brief absences, the deletion of this allowance in the 1996 amendment did not imply a return to the absolute rule against any absence; rather, it suggested that some short absences remain permissible.

The Romalez-Alcaide court acknowledged that some brief absences do not disrupt continuous physical presence but rejected the notion that 8 U.S.C. 1229b(d)(2) provides an exclusive standard for evaluating all absences. The court clarified that the statute does not exempt all departures under 90 days or cumulative absences under 180 days, as it only mandates that an alien departing for over those durations fails to maintain continuous physical presence. It emphasized that the statute addresses "certain breaks," indicating that there can be other types of breaks beyond the specified time limits.

The court determined that absences under the 90/180-day threshold could still disqualify an alien from cancellation of removal. It reasoned that an order of removal is designed to end an alien's presence in the U.S., suggesting that Congress did not intend for aliens to regain continuous physical presence by returning within 90 days of departure under such orders. The court viewed administrative voluntary departures as severing the alien's physical ties to the U.S., thereby concluding that it would contradict the purpose of deportation and removal orders to interpret the law as preserving physical presence for those who return shortly after enforced departures.

Furthermore, the court's conclusion aligned with the Attorney General's interpretation reflected in the regulations for the Nicaraguan Adjustment and Central American Relief Act (NACARA), which states that continuous physical presence is terminated upon removal or voluntary departure under the threat of deportation. Given the similarity of the statutory provisions relevant to NACARA and those applicable in general, the court found it challenging to deem the respondent eligible for cancellation of removal without contradicting the Attorney General's stance as outlined in 8 C.F.R. 240.64(b)(3).

The court referenced a statute allowing for administrative voluntary departure, which permits an alien who admits to being deportable to leave the U.S. voluntarily, avoiding formal deportation proceedings. This process, likened to a "plea bargain," acknowledges that the alien departs with an understanding that reentry and continuous physical presence are not expected. The court upheld the interpretations of the Board of Immigration Appeals (BIA) and Attorney General as reasonable, drawing on previous cases (Hernandez-Luis and Barragan-Sanchez) and the "stop time" provisions of the statute. Under these provisions, an alien’s continuous physical presence is terminated once removal proceedings start, which precludes the accumulation of presence for discretionary relief. The statute incentivizes voluntary departure but does not allow for the continuation of presence for those who choose this option to avoid removal. The petitioner was found not to be physically present in the U.S. while in Mexico, as his departure was part of a formal agreement with the Attorney General, which included a commitment not to return except through lawful entry processes.

The Board of Immigration Appeals (BIA) reasonably determined that the Petitioner's departure constituted a break in his physical presence in the U.S., which aligns with the statutory concept of voluntary departure and the "stop time" provisions outlined in 8 U.S.C. § 1229b(d)(1). The BIA's interpretation of the statute is supported by precedent cases, and the petition for review is denied. Historically, prior to 1996, the authority for voluntary departures was governed by separate statutes, with discretion granted to the Attorney General to allow aliens to depart voluntarily either before or during deportation proceedings. Post-1996, this authority is consolidated under 8 U.S.C. § 1229c(a)(1). The nature of voluntary departures has remained consistent despite changes in statutory language. Additionally, 8 U.S.C. § 1231(a)(5) renders aliens who depart after a removal order ineligible for discretionary relief, reinforcing that Congress did not intend for those forced to leave during removal proceedings to apply for cancellation of removal upon their return. This interpretation suggests that 8 U.S.C. § 1229b(d)(2) should not allow such aliens to regain eligibility for cancellation of removal if they return within the stipulated timeframe of 90 or 180 days.