Ibarra-Flores v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE IBARRA-FLORES, 
Petitioner, No. 04-71554
v.
 Agency No.
A78-536-420
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 4, 2005—Portland, Oregon
Filed March 6, 2006
Before: Alfred T. Goodwin and Richard R. Clifton,
Circuit Judges, and John S. Rhoades, Sr.,** District Judge.
Opinion by Judge Rhoades
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**The Honorable John S. Rhoades, Sr., Senior United States District
Judge for the Southern District of California, sitting by designation.
2203
2206 IBARRA-FLORES v. GONZALES
COUNSEL
Jaime Jasso, Immigration AppealWorks, Westlake Village,
California, for the petitioner.
William C. Erb (argued) and Russel J.E. Verby, United States
Department of Justice, Civil Division, Office of Immigration
Litigation, Washington, D.C., for the respondent.
IBARRA-FLORES v. GONZALES 2207
OPINION
RHOADES, District Judge:
I. Introduction
This case comes before us on a petition for review of an
order of the Board of Immigration Appeals (“BIA”) denying
Jorge Ibarra-Flores’ (“petitioner”) application for cancellation
of removal. For reasons set forth below, we grant the petition
and remand for further proceedings.
II. Statement of Relevant Facts
Petitioner, a native and citizen of Mexico, illegally entered
the United States in July 1989. On March 21, 1996, petitioner
left the United States to visit family in Tijuana, Mexico. On
March 23, 1996, petitioner attempted to return to the United
States but encountered immigration officials. According to
petitioner’s testimony, immigration officials told petitioner
that because he had been in the United States over six years,
he could apply for residence, but he first had to sign an
unidentified document. After signing the document, petitioner
was told that he had no right to request any type of immigra-
tion relief because he had signed a document “quitting all
[his] rights in the United States.” According to petitioner’s
Application for Cancellation of Removal and Adjustment of
Status for Certain Nonpermanent Residents, petitioner
returned to Mexico that day. On March 26, 1996, petitioner
returned to the United States again, this time without detec-
tion by immigration officials. Petitioner has since resided in
the United States.
In March 1996, “aliens accrued time toward the ‘continu-
ous physical presence in the United States’ requirement until
they applied for suspension of deportation.”1 Guadalupe-Cruz
1
The law subsequently changed. Congress passed the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996, which contained
2208 IBARRA-FLORES v. GONZALES
v. INS, 240 F.3d 1209, 1210 n.3 (9th Cir. 2001). “Commence-
ment of deportation proceedings had no effect on this accru-
al.” Id. Had petitioner been placed in deportation proceedings
in March 1996, he could have applied for suspension of
deportation in July 1996, as there is little doubt that petition-
er’s deportation proceedings would not have concluded prior
to July 1996. See H.R. REP. 104-469(I), at 122 (1996) (noting
how aliens could “frustrate” their removal by requesting and
obtaining “multiple continuances, in order to change the
venue of their hearing, obtain an attorney, or prepare an appli-
cation for relief” and explaining that “delays can stretch out
over weeks and months”).
On September 25, 2002, petitioner was served with a
Notice to Appear alleging that petitioner is an alien who is
present in the United States without being admitted or paroled
or who arrived at a time and place other than as designated by
the Attorney General.
At the hearing before the immigration judge (“IJ”), peti-
tioner conceded that he is removable as charged and applied
for cancellation of removal pursuant to INA § 240A(b)(1),
codified at 8 U.S.C. § 1229b(b)(1).2 To be entitled to cancella-
tion of removal, an alien must have ten years continuous
physical presence in the United States. In response to ques-
tions by the IJ, petitioner made statements from which the IJ
concluded that petitioner had received administrative volun-
a “stop-time” provision. See INA § 240A(d)(1), codified at 8 U.S.C.
§ 1229b(d)(1); Guadalupe-Cruz v. INS, 240 F.3d 1209, 1210 n.3 (9th Cir.
2001). Under this “stop-time” provision, “the period of continuous physi-
cal presence in the United States shall be deemed to end when deportation
proceedings commence.” Guadalupe-Cruz, 240 F.3d at 1210 n. 3. This
“stop-time” provision became effective April 1, 1997. See Astrero v. INS,
104 F.3d 264, 266 (9th Cir. 1996).
2
Cancellation of removal is similar to, and has replaced, suspension of
deportation. See Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir. 2004).
IBARRA-FLORES v. GONZALES 2209
tary departure in 1996.3 Accordingly, the IJ denied the appli-
cation for cancellation of removal on the ground that
petitioner had failed to amass the requisite ten years continu-
ous physical presence in the United States.
Petitioner appealed to the BIA, which affirmed the IJ’s
decision without opinion on March 16, 2004. Petitioner filed
a timely petition for review with this court.
III. Analysis
Because the BIA affirmed the IJ’s decision without opin-
ion, “we review the IJ’s decision, which constitutes the final
agency determination.” Karouni v. Gonzales, 399 F.3d 1163,
1170 (9th Cir. 2005). We “review for substantial evidence the
BIA’s non-discretionary factual determinations, including the
3
The Attorney General has authority to grant voluntary departures prior
to the initiation of removal or deportation proceedings and to grant volun-
tary departures during the pendency of such proceedings. Prior to 1996,
8 U.S.C. § 1252(b)(4) (1994) provided that “ ‘in the discretion of the
Attorney General . . . deportation proceedings . . . need not be required in
the case of any alien who admits to belonging to a class of aliens who are
deportable under section 1251 of this title if such an alien voluntarily
departs from the United States.’ ” Vasquez-Lopez v. Ashcroft, 343 F.3d
961, 969 n.1 (9th Cir. 2003) (quoting 8 U.S.C. § 1254(b)(4)(1994)). 8
U.S.C. §1254(e)(1) (1994) provided, in relevant part, that the “ ‘Attorney
General may, in his discretion, permit any alien under deportation pro-
ceedings . . . to depart voluntarily from the United States at his own
expense in lieu of deportation.” See Vasquez-Lopez, 343 F.3d at 969 n.1
(quoting 8 U.S.C. § 1254(e)(1) (1994)). After 1996, the authority to grant
voluntary departure in both situations was transferred to a single section,
8 U.C. § 1229c(a)(1), which provides, in relevant part, that “ ‘[t]he Attor-
ney General may permit an alien voluntarily to depart the United States
. . . under this subsection, in lieu of being subject to proceedings under
section [1229a of this title] or prior to the completion of such proceed-
ings.’ ” Vasquez-Lopez, 343 F.3d at 969 n.1 (quoting 8 U.S.C.
§ 1229c(a)(1)). “While the precise terms of the Attorney General’s statu-
tory authority to grant voluntary withdrawal have varied during the period
here relevant, the character of departures pursuant to a grant of voluntary
departure has not materially changed.” 343 F.3d at 969 n.1.
2210 IBARRA-FLORES v. GONZALES
determination of continuous presence.” Lopez-Alvarado v.
Ashcroft, 381 F.3d 847, 850-51 (9th Cir. 2004). “Substantial
evidence is ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.’ ” Monjaraz-Munoz v. INS, 327 F.3d
892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.
2003) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
[1] On this record, the IJ’s conclusion that petitioner is inel-
igible for cancellation of removal because he received admin-
istrative voluntary departure is not supported by substantial
evidence. We have held that an alien who departs the United
States pursuant to the formal process known as administrative
voluntary departure interrupts his physical presence in the
United States so that, should the alien return, he must begin
anew the process of accumulating physical presence for immi-
gration purposes. Vasquez-Lopez v. Ashcroft, 343 F.3d 961
(9th Cir. 2003) (per curiam). However, not all departures after
contact with immigration officials constitute administrative
voluntary departures that interrupt an alien’s continuous phys-
ical presence in the United States. As we have recently recog-
nized, when an alien is simply “turned around at the border”
by immigration officials, the alien’s departure from the
United States does not serve to interrupt the alien’s continu-
ous physical presence. See Tapia v. Gonzalez, 430 F.3d 997
(9th Cir. 2005).
[2] Here, one can only speculate as to whether petitioner
received administrative voluntary departure. No voluntary
departure form was produced, and the only testimony that was
presented on this issue was petitioner’s own confusing testi-
mony. Specifically, when asked whether he had ever received
voluntary departure, petitioner answered:
A. I think once in 1996, but I got no option.
IBARRA-FLORES v. GONZALES 2211
Q. You got what?
A. No option when I was detained by immigration
officer and the officer told me to sign off the
document, go outside and talk to the immigra-
tion offices right at the border and they will
help me out because I’ve been here six years
and some months, which would allow me apply
for residence. So I did what the officer told me.
I went outside of the United States, and when I
went to the offices the officer told me, I was
told that I was crazy and I got no right to
request anything, that I had signed document
quitting all my rights in the United States.
Although petitioner testified that he signed some type of doc-
ument, it is far from clear that petitioner signed a voluntary
departure form. Petitioner’s testimony is not, by itself, sub-
stantial evidence that petitioner did in fact receive administra-
tive voluntary departure.
[3] Moreover, even if petitioner signed a voluntary depar-
ture form and departed accordingly, there is not substantial
evidence in the present record that would support the conclu-
sion that petitioner knowingly and voluntarily accepted
administrative voluntary departure.4 Although a voluntary
4
Although the issue of whether petitioner knowingly and voluntarily
accepted administrative voluntary departure is not “specifically and dis-
tinctly” raised in the opening brief, we find good cause for addressing this
argument. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992)
(explaining that we will consider issues raised for the first time in a reply
brief for “ ‘good cause shown’ ” (quoting Fed. R. App. P. 2)). The govern-
ment had an opportunity to address this issue at oral argument. Moreover,
the issue of whether petitioner knowingly and voluntarily accepted volun-
tary departure is inextricably intertwined with the issue of whether there
is substantial evidence supporting the IJ’s conclusion that petitioner suf-
fered an administrative voluntary departure that precludes him from meet-
ing the continuous physical presence requirement.
2212 IBARRA-FLORES v. GONZALES
departure under “threat” of deportation constitutes a break in
continuous physical presence, Vasquez-Lopez, 343 F.3d at
970, as our sister circuits have recognized, “before it may be
found that a presence-breaking voluntary departure occurred,
the record must contain some evidence that the alien was
informed of and accepted its terms.” Reyes-Vasquez v. Ash-
croft, 395 F.3d 903, 908 (8th Cir. 2005) (emphasis added). As
the Eighth Circuit has explained, the use of the phrase “under
threat of deportation”
implies that there is an expressed and understood
threat of deportation. When an alien is legally per-
mitted to depart voluntarily, he should “leave with
the knowledge that he does so in lieu of being placed
in proceedings” and therefore has no legitimate
expectation that he may reenter and resume continu-
ous presence. In re Romalez-Alcaide, 23 I. & N. Dec.
423, 429 (2002) (en banc).
Reyes-Vasquez, 395 F.3d at 907 (emphasis added) (alteration
in original).
[4] Most recently, we have held that the type of agreement
to depart that terminates an alien’s continuous physical pres-
ence is a formal one “whereby the terms and conditions of
[the alien’s] departure were clearly specified.” Tapia, 430
F.3d at 1004 (emphasis added). Although Tapia did not
involve a claim that the alien was misled into signing a volun-
tary departure form and voluntarily departing, Tapia’s reason-
ing is nonetheless applicable here. As we explained in Tapia,
an agreement to accept voluntary departure is akin to a plea
bargain in which the alien gives up any expectation that the
alien can “ ‘illegally reenter and resume a period of continu-
ous physical presence.’ ” Id. at 1002 (quoting Vasquez-Lopez,
343 F.3d at 973 (quoting In re Romalez-Alcaide, 23 I. & N.
Dec. at 429)). Moreover, if voluntary departure is accepted in
lieu of being placed in deportation or removal proceedings,
the alien agrees to relinquish the right to present a claim for
IBARRA-FLORES v. GONZALES 2213
relief that might otherwise allow the alien to stay in the
United States. Given the consequences of an agreement to
accept voluntary departure, such an agreement, like a plea
agreement, should be enforced against an alien only when the
alien has been informed of, and has knowingly and voluntar-
ily consented to, the terms of the agreement.
[5] Petitioner’s testimony before the IJ suggests that, due to
the misrepresentations of immigration officers, petitioner did
not knowingly and voluntarily accept administrative voluntary
departure in lieu of being placed in deportation proceedings.
There was no testimony to the contrary. Petitioner’s testimony
is plausible because, due to the state of immigration law at the
time, it would have behooved petitioner to be placed in depor-
tation proceedings in March 1996.
[6] At oral argument, petitioner suggested that it would be
appropriate to remand this matter for further hearing before
the IJ on the issue of whether petitioner accepted administra-
tive voluntary departure and, if so, whether he did so know-
ingly and voluntarily. We conclude that the IJ should be given
the first opportunity to assess the consequences of petitioner’s
departure under the “knowing and voluntary” standard we
announce today. Cf. Reyes-Vasquez, 395 F.3d at 909 (remand-
ing for specific factual findings on the issue of whether the
alien was “ ‘simply returned to the border’ without voluntarily
departing under an expressed threat of deportation or removal
proceedings” after determining that the record was insuffi-
cient to establish that a voluntary departure “under threat of
deportation” occurred). Upon remand, the IJ shall take addi-
tional evidence and testimony as necessary and shall make
factual findings as to whether petitioner received administra-
tive voluntary departure and, if so, whether he knowingly and
voluntarily consented thereto.
[7] Finally, petitioner argues that the IJ violated his due
process rights by refusing to order the Immigration and Natu-
ralization Service (“Service”) to produce a voluntary depar-
2214 IBARRA-FLORES v. GONZALES
ture form for petitioner. Claims of due process violations in
deportation proceedings are reviewed de novo. Colmenar v.
INS, 210 F.3d 967, 971 (9th Cir. 2000). “The Fifth Amend-
ment guarantees due process in deportation proceedings.” Id.
Thus, “an alien who faces deportation is entitled to a full and
fair hearing of his claims and a reasonable opportunity to
present evidence on his behalf.” Id. The BIA’s decision will
be reversed on due process grounds if (1) the proceeding was
“ ‘so fundamentally unfair that the alien was prevented from
reasonably presenting his case,’ ” id. (quoting Platero-Cortez
v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)), and (2) the alien
demonstrates prejudice, “which means that the outcome of the
proceeding may have been affected by the alleged violation,”
id.
[8] Here, it was reasonable for petitioner to seek evidence
in the Service’s possession in an attempt to meet his burden
of demonstrating that he meets the continuous physical pres-
ence requirement. Had the Service failed to produce a volun-
tary departure form for petitioner after being ordered to do so,
this would have been further evidence suggesting that peti-
tioner’s continuous physical presence in the United States was
not interrupted by an administrative voluntary departure. For
this reason, the outcome of these proceedings may have been
affected if the requested discovery had been ordered. Accord-
ingly, upon remand the IJ shall order the production of all
forms referencing petitioner’s departure from the United
States on March 23, 1996.
IV. Conclusion
This matter is remanded for further proceedings consistent
with this opinion.
PETITION GRANTED; CASE REMANDED WITH
INSTRUCTIONS.