Elisned Corro-Barragan v. Eric H. Holder Jr. , 718 F.3d 1174 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISNED CARINE CORRO- No. 08-74697
BARRAGAN,
Petitioner, Agency No.
A200-097-291
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2013*
San Francisco, California
Filed June 10, 2013
Before: J. Clifford Wallace, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge McKeown
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 CORRO-BARRAGAN V. HOLDER
SUMMARY**
Immigration
The panel denied Elisned Corro-Barragan’s petition for
review of the Board of Immigration Appeals’ decision finding
her statutorily ineligible for voluntary departure for failure to
establish that she was in the United States for one year before
being served with a Notice to Appear.
The panel held that the Real ID Act restored appellate
jurisdiction over constitutional claims or questions of law in
challenges to denials of voluntary departure under 8 U.S.C.
§ 1229c. As a matter of first impression, the panel interpreted
the meaning of “physically present” in § 1229c(b) to require
uninterrupted physical presence in the United States for one
year for an alien to be eligible for voluntary departure at the
conclusion of removal proceedings.
COUNSEL
Helen B. Zebèl, Law Office of Helen B. Zebèl, San
Francisco, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, John
C. Cunningham, Senior Litigation Counsel, and Samia
Naseem, Office of Immigration Litigation, United States
Department of Justice, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CORRO-BARRAGAN V. HOLDER 3
OPINION
McKEOWN, Circuit Judge:
This petition raises a matter of first impression in the
Ninth Circuit regarding the interpretation of “physically
present” in the voluntary departure provision of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1229c(b)(1)(A). We interpret physically present in this
provision as requiring uninterrupted presence in the United
States for at least one year and deny the petition for failure to
meet this statutory requirement.
BACKGROUND
Elisned Carine Corro-Barragan (“Corro”) is a native and
citizen of Mexico who lives with her three U.S. citizen
children in Napa, California. She maintains that she first
entered the United States in June 1991 without inspection and
resided here continuously aside from two brief trips to
Mexico. On January 6, 2006, Corro arrived in the United
States without inspection near Otay Mesa, California. That
same day, the Department of Homeland Security served her
with a Notice to Appear, charging her as removable from the
United States under 8 U.S.C. § 1182(a)(6)(A)(i) of the INA.
In September 2007, Corro filed an application for
cancellation of removal.
The Immigration Judge (“IJ”) denied Corro’s application
for cancellation of removal and her request for voluntary
departure. With respect to cancellation of removal, the IJ
found that Corro met the requirements of continuous physical
presence and good moral character under 8 U.S.C. § 1229b,
but determined that she failed to meet the showing of
4 CORRO-BARRAGAN V. HOLDER
“exceptional and extremely unusual hardship” as required by
the statute. With respect to voluntary departure, the IJ held
that Corro failed to meet the physical presence requirement
of § 1229c(b)(1)(A).1 The IJ reasoned that, in contrast to
§ 1229b(d)(2) which provides that brief departures from the
United States do not interrupt the ten-year period of
continuous physical presence required for cancellation of
removal, § 1229c(b)(1)(A) has no exceptions for departures
during the one-year period of physical presence required for
voluntary departure.
1
Section 1229c(b)(1) provides:
The Attorney General may permit an alien
voluntarily to depart the United States at the alien’s
own expense if, at the conclusion of a proceeding under
section 1229a of this title, the immigration judge enters
an order granting voluntary departure in lieu of removal
and finds that--
(A) the alien has been physically present in the
United States for a period of at least one year
immediately preceding the date the notice to appear
was served under section 1229(a) of this title;
(B) the alien is, and has been, a person of good
moral character for at least 5 years immediately
preceding the alien’s application for voluntary
departure;
(C) the alien is not deportable under section
1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and
(D) the alien has established by clear and
convincing evidence that the alien has the means to
depart the United States and intends to do so.
CORRO-BARRAGAN V. HOLDER 5
The Board of Immigration Appeals (“BIA”) dismissed
Corro’s appeal, denying all relief. The BIA concluded that
the IJ correctly determined that Corro failed to demonstrate
that exceptional and extremely unusual hardship would result
for her children and saw “no clear error” in the IJ’s reasoning
denying cancellation of removal.
Regarding the IJ’s denial of Corro’s request for voluntary
departure, the BIA held that Corro “illustrated no error in [the
IJ’s] conclusion that [Corro was] statutorily ineligible for
such relief as she did not establish that she ha[d] been in the
United States for at least 1 year before being served with the
Notice to Appear.” In addition, the BIA noted that Corro
“provided no case law or other legal authority suggesting that
an Immigration Judge should be able to disregard the
statutory requirements for a form of relief based upon his
discretion.” This petition for review followed.
ANALYSIS
I. JURISDICTION
As a threshold matter, we address jurisdiction in light of
the changing landscape of appellate jurisdiction over
immigration matters. Two provisions of the INA,
§ 1252(a)(2)(B)(i) and § 1229c(f), have been read to prohibit
judicial review of denials of voluntary departure. This
petition raises a question of statutory interpretation regarding
the meaning of “physically present” in § 1229c(b). Because
the Real ID Act of 2005 restored appellate jurisdiction over
questions of law in denials of discretionary relief, including
6 CORRO-BARRAGAN V. HOLDER
voluntary departure under § 1229c, we have jurisdiction to
consider Corro’s petition. See 8 U.S.C. § 1252(a)(2)(D).2
In Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011), we
considered whether § 1252(a)(2)(B)(i) removed our
jurisdiction to review a denial of voluntary departure.3 The
IJ denied the petition on two alternate grounds—a non-
discretionary finding of statutory ineligibility and denial “as
a matter of discretion because of [petitioner’s] firearm
conviction.” Id. Because review was “limited to the ground
adopted by the BIA,” and “because the BIA affirmed based
on the IJ’s discretionary denial,” we did not have jurisdiction
to review the denial of voluntary departure. Id. (citing
§ 1252(a)(2)(B)(i)); see also Montero-Martinez v. Ashcroft,
277 F.3d 1137, 1144 (9th Cir. 2002) (concluding that
§ 1252(a)(2)(B)(i) “eliminates jurisdiction only over
decisions by the BIA that involve the exercise of discretion”).
In contrast, here the BIA’s denial of relief was not based on
discretion but on a question of law—the determination that
Corro was not statutorily eligible for voluntary departure
based on a legal interpretation of “physically present”
under § 1229c(b).
2
The relevant portion of the INA provides that “[n]othing in
subparagraph (B) [which precludes judicial review of denials of
discretionary relief under § 1229c and other provisions], or any other
provision of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with this section.”
8 U.S.C. § 1252(a)(2)(D), amended by Real ID Act of 2005, Pub. L. No.
109-13, Div. B., § 106, 119 Stat. 231.
3
Section 1252(a)(2)(B)(i) provides that “no court shall have jurisdiction
to review . . . any judgment regarding the granting of relief under section
. . . 1229c. . . .” 8 U.S.C. § 1252(a)(2)(B)(i).
CORRO-BARRAGAN V. HOLDER 7
Before the Real ID Act of 2005, § 1229c(f) barred judicial
review of denials of voluntary departure based on both
discretionary rulings and statutory ineligibility.4 See Gomez-
Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2004). After
passage of the Real ID Act, we addressed a similar statute,
8 U.S.C. § 1158(a)(3), that prohibited review of any
determination relating to the one-year bar for asylum claims.
Ramadan v. Gonzales, 479 F.3d 646, 649–50 (9th Cir. 2007).
We concluded that “Section 106 of the Real ID Act of 2005
restores our jurisdiction over ‘constitutional claims or
questions of law.’” Id. at 650 (citation omitted). We now
confirm, as we previously held in Gil, 651 F.3d at 1003, that
the Real ID Act also restores appellate jurisdiction over
constitutional claims or questions of law in challenges to
denials of voluntary departure under § 1229c. Other circuits
are in accord with this holding. See, e.g., Serrato-Soto v.
Holder, 570 F.3d 686, 688 (6th Cir. 2009) (reviewing denial
of relief under § 1229c because the petitioner raised a
question of law regarding whether a certain crime was a
crime of moral turpitude); Garcia v. Holder, 584 F.3d 1288,
1289 n.2 (10th Cir. 2009) (concluding that, notwithstanding
the jurisdiction-stripping provisions of the INA, “this court
always retains jurisdiction to review constitutional claims and
questions of law”).
4
Section 1229c(f) provides that “[n]o court shall have jurisdiction over
an appeal from denial of a request for . . . voluntary departure . . . .”
8 U.S.C. § 1229c(f).
8 CORRO-BARRAGAN V. HOLDER
II. DENIAL OF VOLUNTARY DEPARTURE5
We review de novo the interpretation of “physically
present” under § 1229c(b) by looking first to the plain
meaning of the statute. See Federiso v. Holder, 605 F.3d 695,
697 (9th Cir. 2010) (citation omitted). We conclude that
§ 1229c(b) is unambiguous and join the Eleventh Circuit in
holding that the statute requires uninterrupted physical
presence in the United States for one year for an alien to be
eligible for voluntary departure at the conclusion of removal
proceedings. See Medina Tovar v. U.S. Att’y Gen., 646 F.3d
1300, 1306 (11th Cir. 2011).
1. Statutory Background of § 1229c
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) replaced suspension
of deportation under § 1254 with cancellation of removal and
voluntary departure under § 1229b and § 1229c. Eligibility
for suspension of deportation had required physical presence
in the United States “for a continuous period of not less than
seven years.” 8 U.S.C. § 1254(a)(1). Before the IIRIRA,
§ 1254(e)(1) had governed voluntary departure, and contained
no requirement for continuous physical presence, instead
leaving such relief mostly to the discretion of the Attorney
General.
In INS v. Phinpathya, 464 U.S. 183, 189–90 (1984), the
Supreme Court held that any absence, regardless of duration,
during the seven-year period precluded eligibility for
5
Corro did not contest the denial of cancellation of removal in her
opening brief, so the issue is waived. Fed. R. App. P. 28(a)(9)(A); Kohler
v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir. 2001).
CORRO-BARRAGAN V. HOLDER 9
suspension of deportation. The Court reasoned that when
Congress saw fit to provide exceptions for continuous
physical presence in similar provisions, it had done so, and
Congress’s “deliberate omission” of authority for flexible
administration of the statute did “not readily admit any
[exceptions].” Id. (citation and quotation marks omitted).
Congress responded to Phinpathya by adding § 1254(b)(2),
under which “brief, casual, and innocent” absences during the
seven-year period did not “meaningfully interrupt the
continuous physical presence.” See Immigration Reform and
Control Act of 1986, Pub. L. No. 99-603, § 315(b), 100 Stat.
3359 (1986); see also Rosenberg v. Fleuti, 374 U.S. 449(1963).
In the IIRIRA, Congress merged deportation and
exclusion proceedings into a single process—a removal
proceeding.6 See Romero-Torres v. Ashcroft, 327 F.3d 887,
889 (9th Cir. 2003). Congress repealed § 1254 and replaced
it with § 1229b to govern cancellation of removal and
§ 1229c to govern voluntary departure. H.R. Rep. No. 104-
828, at 48–52 (1996) (referring to INA §§ 240A and 240B,
respectively). In place of the “brief, casual, and innocent”
standard, Congress added § 1229b(d), which precluded
eligibility for cancellation of removal if the alien “departed
from the United States for any period in excess of 90 days or
for any periods in the aggregate exceeding 180 days” during
a ten-year period immediately preceding application for
cancellation of removal. 8 U.S.C. § 1229(b)(d)(2). To be
eligible for voluntary departure at the conclusion of removal
6
Prior to the IIRIRA, a deportation proceeding involved a person
already present in the United States and an exclusion proceeding involved
a person seeking entry to the United States. See, e.g., Fleuti, 374 U.S. at450–51; Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988).
10 CORRO-BARRAGAN V. HOLDER
proceedings under § 1229c(b), an alien now must have been
“physically present in the United States for a period of at least
one year immediately preceding the date the notice to appear
was served.” 8 U.S.C. § 1229c(b)(1)(A).
2. Statutory Construction of § 1229c
Perhaps because courts were barred from reviewing
denials of voluntary departure prior to the Real ID Act of
2005, there are few cases interpreting the “physically present”
requirement of § 1229c(b). The Eleventh Circuit considered
the issue in Medina Tovar v. United States Attorney General,
and held that a petitioner could not satisfy the eligibility
requirement because “he was not physically present in the
United States for the entirety of the relevant one year period.”
646 F.3d at 1306. The court rejected the petitioner’s
“assertion that the physical presence requirement for post-
order voluntary departure should be interpreted by analogy to
the BIA’s physical presence requirement in the cancellation
of removal context.” Id. The court reasoned that cancellation
of removal under § 1229b “requires a longer period of
presence” and “Congress specifically set forth special rules
relating to continuous residence or physical presence and
provided for the treatment of any breaks in presence.” Id.
(citing 8 U.S.C. § 1229b(d)).7 “Conversely,” the court added,
7
8 U.S.C. § 1229b(d) provides in relevant part:
(d) Special rules relating to continuous residence or
physical presence. . . . (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) if the alien
CORRO-BARRAGAN V. HOLDER 11
“Congress did not provide such exceptions relating to the
[one-year] physical presence requirement in the voluntary
departure context.” Id. The Eleventh Circuit relied on the
Supreme Court’s guidance for statutory construction: “Where
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 or exclusion.” Id.
(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
The Eleventh Circuit’s reasoning is persuasive. Congress
explicitly set forth special rules for the treatment of certain
breaks in physical presence under § 1229b, and yet no
exceptions are provided for breaks in physical presence under
§ 1229c(b). Under the plain meaning of § 1229c(b), an alien
must be physically present in the United States for at least
one uninterrupted year to be statutorily eligible for voluntary
departure at the conclusion of removal proceedings.
Corro argues that using different interpretations of the
physical presence requirement under § 1229b and § 1229c
produces absurd results. But it is hardly absurd that Congress
would allow for brief departures during the ten-year period of
physical presence required by § 1229b(b)(1)(A) and not
during the shorter one-year period under § 1229c(b)(1)(A).
She also argues that using a strict interpretation of “physically
present” undermines the purpose of the voluntary departure
statute, which she maintains is to allow non-citizens who
have developed significant ties to the United States through
at least one year’s presence in the country to settle their
has departed from the United States for any period in
excess of 90 days or for any periods in the aggregate
exceeding 180 days.
12 CORRO-BARRAGAN V. HOLDER
affairs. She cites to the government’s proffered reason for
§ 1229c(b)’s one-year requirement in Tovar-Landin v.
Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004), a reason
offered only to support its argument that the one-year
requirement was not wholly irrational in the face of an equal
protection challenge.
But in Tovar-Landin, we made no reference to Congress’s
actual purpose in enacting the one-year requirement; instead,
we simply held that the government met its burden in coming
forward with some legitimate reason for the one-year rule.
Id. (“According to the government, ‘Congress presumably
determined that those aliens with at least a year’s presence
had accumulated sufficient interests to warrant time to settle
their affairs in this country.’”). As the court noted in
Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002), it is
“irrelevant whether or not the justification [for the rule]
proffered by the [government is] in fact the reason that led to
the legislative classification in the first instance.”
We decline Corro’s request to create an exception to the
plain meaning of § 1229c(b) based on the government’s
proffered rational basis for the statute in Tovar-Landin,
particularly because the rules of statutory construction
referenced by the Supreme Court in Russello suggest the
opposite result. See Russello, 464 U.S. at 23. Section
1229c(b) is not ambiguous and we presume that Congress
acted intentionally in including special rules for brief
interruptions in physical presence under § 1229b but
excluding those rules from § 1229c. We therefore interpret
“physically present in the United States for a period of at least
one year” in § 1229c(b) as requiring one year of uninterrupted
physical presence in the United States.
CORRO-BARRAGAN V. HOLDER 13
Because Corro failed to establish that she had been in the
United States for at least one uninterrupted year before being
served with the Notice to Appear, she is ineligible for relief
in the form of voluntary departure under § 1229c(b).
PETITION DENIED.