Baltazar Garcia v. Eric Holder, Jr.

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. Judge Motz
wrote the opinion, in which Judge Wilkinson and Judge Floyd
joined.
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 physical presence” requirement of 8 U.S.C.
§ 1229b. 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 week later, Immigration and Naturalization Service
(“INS”) officers detained him at the border and took his
fingerprints and photograph. According to Garcia, INS officers
offered him the opportunity to 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, but filed an application for cancellation of
removal.
At a 2011 hearing on the merits of his application, Garcia
testified about his 2001 apprehension at the United States-
Mexico border. He remembered being stopped by INS officers,
2
whom he believed informed him of his right to appear before an
immigration judge. Garcia testified that “[t]hey 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. 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 signed one. Garcia offered no evidence -–
testimonial or otherwise –- expressly addressing whether he
signed any documentation.
The immigration judge concluded that Garcia was statutorily
ineligible for cancellation of removal because he could not show
that he continuously resided in the United States for the
preceding ten years. Citing the BIA’s decision in In 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 occurs pursuant to a “formal,
documented process.” 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 for
cancellation of removal pursuant to 8 U.S.C. § 1229b (2006). 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). The
statute sets forth several circumstances that terminate an
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 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. Id. at 426-27.
Although an alien’s 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. Avilez-Nava, 23 I.
& N. Dec. at 805. In this circumstance, the INS had not “made
[the alien] aware of the opportunity for exclusion proceedings,”
and thus his encounter with immigration officials is too
informal to count as a departure under threat of removal. Id.
5
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 forms, affidavits, or “other
appropriate . . . records.” 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. Chevron, 467 U.S. at
843. 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, section 1229b is silent as to whether an alien’s
voluntary departure under threat of removal terminates his
“continuous physical presence” in the country. 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). The statute provides
that an alien’s continuous presence 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 of removal, these breaks do not constitute an
exhaustive list of every circumstance terminating an alien’s
continuous physical presence. The statute provides that
“continuous physical presence” terminates “if the alien
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[departs]” for more than ninety days; it does not provide that
physical presence terminates if and only if the alien so
departs. Id. § 1229b(d)(2).
In light of this statutory silence, the BIA’s
interpretation is reasonable. That the statute 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.” The BIA’s logic in Romalez-
Alcaide is sound. Section 1229b(d)(1) terminates an alien’s
continuous physical presence when the DHS files a removal action
against him. Allowing an alien to evade termination by leaving
the country voluntarily would create a loophole that would
frustrate the statutory framework.
Garcia finds it significant that the BIA’s regulation
predates the statutory language pursuant to which it was
promulgated. He notes that under a prior 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 departures” notwithstanding. Id. § 1254 (repealed
1996). 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 Cir. 1989). In 1996, Congress amended the INA,
replacing its “brief, casual, and innocent” language with
§ 1229b(d)(2)’s quantitative standard. 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. The BIA’s decision in Romalez-Alcaide is not
inconsistent with a change in the law. By implementing a
quantitative standard, Congress cabined the BIA’s authority to
define which departures by aliens are “brief, casual, and
innocent.” This shift from a qualitative to a quantitative
standard, however, does not evince Congress’s intent to
eliminate the BIA’s discretion altogether. On the contrary,
section 1229b(d)(2)’s text entirely accords 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. See
Barrera-Quintero v. Holder, 699 F.3d 1239, 1245 (10th 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 review BIA decisions regarding an alien’s
eligibility for cancellation of removal –- including
determinations of his “continuous physical presence” –- for
substantial evidence. See Ramos v. Holder, 660 F.3d 200, 203
(4th Cir. 2011). 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. Garcia
claims that this evidence was insufficient to establish his
formal documented departure, rendering his return to Mexico
ineffective in terminating his continuous physical presence
here.
The argument fails. Garcia’s own testimony demonstrated
the formality of the process he received. He testified that
when the INS detained him, officers informed him of his
inadmissibility to the United States. Further, he testified
that officers told him that he could return to Mexico
voluntarily, or if he desired, a judge could determine his
eligibility to enter the country. Specifically, Garcia
testified: “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. See id.
Moreover, Garcia’s process was 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. We
cannot conclude that the BIA erred in finding that 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. There, the Ninth Circuit
held that a record establishing the fact of an alien’s
fingerprinting did not establish the fact of his formal
departure. Id. at 1002. But in that case, the alien offered no
testimony regarding the level of formality by which he departed
the country. Though officers detained him and took his
fingerprints, the interaction could have preceded either a
formal or an informal departure. Here, Garcia testified to his
receipt of a formal process. 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 with the
burden-shifting standard of the INA. As an 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. On this point, Garcia’s
testimony was unclear. He did not expressly state whether he
signed any documents –- or failed to sign any documents –-
leaving the BIA to guess whether he was eligible for relief.
Our precedent counsels the BIA to resolve such ambiguities
against Garcia. 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.
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