Gilberto Mauel Mendez-Reyes v. Attorney General of the United States
Docket: 04-4522
Court: Court of Appeals for the Third Circuit; October 31, 2005; Federal Appellate Court
Gilberto Mendez-Reyes, a Mexican citizen, claims residency in the U.S. since 1985 but faced removal proceedings due to unlawful reentry after a brief trip to Mexico in May 1998. Upon arrival at Newark Airport, he was referred for secondary inspection, where he withdrew his application for admission and left the country. He reentered in August 1998, leading to removal proceedings initiated on September 6, 2002. Mendez-Reyes conceded his removability under 8 U.S.C. § 1182(a)(6)(A)(I) and sought cancellation of removal, which requires demonstrating continuous physical presence in the U.S. for at least ten years, as specified in 8 U.S.C. § 1229b(b)(1).
An Immigration Judge (IJ) ruled on September 5, 2003, that Mendez-Reyes could not prove the necessary continuous presence due to his withdrawal of admission and departure in July 1998. The Court found no error in the IJ's decision and denied the petition. While the Court typically lacks jurisdiction to review discretionary decisions regarding cancellation of removal under 8 U.S.C. § 1252(a)(2)(B)(I), the Real ID Act of 2005 expanded jurisdiction for constitutional claims or legal questions, allowing the Court to consider two legal questions raised by the petitioner: whether the IJ erred in determining that withdrawing an application for admission breaks physical presence, and whether the IJ's reliance on the BIA decision In re Romalez-Alcaide is entitled to deference under Chevron U.S.A. Inc.
The government argued that Mendez-Reyes's claims are moot due to his failure to comply with a voluntary departure order granted by the Board of Immigration Appeals (BIA), which mandated his departure within 30 days and warned of consequences for noncompliance, including a ten-year bar on further relief under 8 U.S.C. § 1229c(d).
The government contends that the Petitioner did not depart by the December 10, 2004 deadline, rendering him statutorily ineligible for cancellation of removal under 1229c(d) and thus making the petition for review moot. The mootness doctrine emphasizes a court's ability to grant effective relief, and if developments eliminate a plaintiff's stake in the outcome, the case must be dismissed. The agency has not yet assessed the implications of the Petitioner's alleged failure to depart on his prior application for cancellation of removal, leaving the record devoid of relevant facts regarding his compliance with voluntary departure requirements. Consequently, the appellate court is not positioned to determine the applicability of 1229c(d) in this case.
If the court were to find that the Immigration Judge (IJ) erred in initially denying cancellation of removal, it would remand the case for the agency to evaluate the government's arguments regarding 1229c(d). However, the court ultimately deems the Petitioner’s claims of legal error by the IJ to be without merit, making further agency consideration unnecessary. The court reviews the agency's legal conclusions de novo, applying substantial evidence review to factual findings.
The criteria for cancellation of removal require an alien to demonstrate at least ten years of continuous physical presence in the U.S. under 1229b(b)(1)(A). Continuous presence is interrupted under specific conditions, including being served a notice to appear or committing certain criminal offenses. Additionally, continuous presence is considered broken if the alien departs the U.S. for over 90 days, or cumulatively for more than 180 days. The BIA ruling in Romalez-Alcaide established that voluntary departure under the threat of deportation also interrupts continuous physical presence. For the court to defer to this ruling, it must first ascertain whether Congress has explicitly addressed the matter at hand.
Petitioner contends that 8 U.S.C. § 1229b(d) exclusively outlines the conditions that disrupt continuous physical presence, asserting that Congress intended for departures not exceeding 90 or 180 days to not be considered breaks in physical presence. Petitioner claims the Board of Immigration Appeals (BIA) incorrectly introduced an additional requirement by determining that voluntary departure under the threat of removal constitutes a break in physical presence, regardless of the duration of the departure. The court disagrees, stating that § 1229b(d) does not provide an exclusive definition of what constitutes a break in physical presence, as it does not explicitly define "continuous physical presence" or address whether other circumstances could also sever that presence. The court emphasizes that while a departure exceeding 90 days is clearly a break, it does not rule out the possibility that shorter departures could also qualify as breaks.
In evaluating the statutory interpretation, the court applies the Chevron analysis, recognizing the broad delegation of authority to the Attorney General in immigration matters and expressing reluctance to deem the agency's interpretation unreasonable. Citing the Ninth Circuit's decision in Vasquez-Lopez v. Ashcroft, the BIA's reasoning is that an order of removal is intended to terminate an alien's presence in the U.S., and therefore, those who depart under such orders should not be allowed to return and continue accruing continuous physical presence. The BIA compares voluntary departure to plea bargaining, indicating that the expectation is for the alien to leave without the possibility of resuming continuous physical presence upon illegal reentry. Ultimately, the court supports the BIA's interpretation as a permissible construction of § 1229b, aligning with other circuit courts' decisions on the matter.
No error was found in the Immigration Judge's (IJ) application of the Romalez-Alcaide decision to the Petitioner's request for cancellation of removal. The Petitioner contends that withdrawing an application for admission should differ from voluntary departure in calculating continuous physical presence, arguing that withdrawal is a unilateral choice. However, it was noted that such withdrawal is subject to the discretion of the Attorney General, making it not merely unilateral. The withdrawal document acknowledged that the Petitioner understood this action was in lieu of a formal admissibility determination, equating the withdrawal to voluntary departure to avoid removal proceedings.
The Petitioner also claimed he was not under threat of deportation since his removability was never established and argued that withdrawing his application did not imply conceding removability. Nonetheless, had immigration proceedings commenced in 1998, his continuous physical presence would have ceased automatically. By choosing to withdraw and leave the country, the Petitioner could not expect to reenter illegally and maintain continuous physical presence. Consequently, the petition for review was denied.
The Board of Immigration Appeals (BIA) merely adopted the IJ’s decision, which is the basis for this Court's review. Additionally, there are considerations regarding voluntary departure bonds that could affect the outcome, but such issues were left for the agency’s initial review. The BIA noted that the 1996 amendments to the Immigration and Nationality Act (INA) aimed to deter illegal immigration by reducing incentives for aliens to prolong their stay in the U.S.
