Gabino Rodriguez-Labato v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
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No. 16-1623
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Gabino Rodriguez-Labato
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: March 7, 2017
Filed: August 21, 2017
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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WOLLMAN, Circuit Judge.
Gabino Rodriguez-Labato (Petitioner) petitions for review of a decision by the
Board of Immigration Appeals (the Board) dismissing his appeal from the
immigration judge’s (IJ) denial of his application for cancellation of removal of a
nonpermanent resident alien under 8 U.S.C. § 1229b(b). He argues that the Board
erred in concluding that he voluntarily departed the United States under threat of
deportation, thus breaking the required ten-year period of continuous residence. We
deny the petition.
On or about August 13, 2009, the Department of Homeland Security (DHS)
filed a Notice to Appear (NTA) for Petitioner, a native and citizen of Mexico.
Petitioner was incarcerated in Decorah, Iowa, at that time, awaiting trial for assault
with intent to inflict damage. The NTA alleged that Petitioner had entered the United
States on April 1, 2001, after having voluntarily departed on six occasions. It alleged
that Petitioner was removable as an alien present in the United States without being
admitted or paroled. 8 U.S.C. § 1182(a)(6)(A)(i). Appearing before the IJ on March
29, 2010, Petitioner denied the date of entry alleged in the NTA, admitted to the
remaining factual allegations therein, and conceded removability.
On May 5, 2010, Petitioner filed an application for cancellation of removal
under 8 U.S.C. § 1229b(b). DHS moved to pretermit the application for cancellation
of removal, arguing that Petitioner had voluntarily departed the United States under
threat of deportation on March 23, 2001, and thus had not been physically present for
a continuous ten-year period immediately preceding his service with an NTA, as
required by § 1229b(b)(1)(A) and 1229b(d)(1).
DHS submitted Form I-826, entitled “Notice of Rights and Request for
Disposition,” signed by Petitioner and dated March 23, 2001. The form was written
in Spanish and was signed by an immigration officer, who certified that Petitioner had
read the notice and that it was read to him in Spanish. The English translation of the
form stated, under the heading “Notice of Rights”:
You have been arrested because immigration officers believe that you
are illegally in the United States. You have the right to a hearing before
the Immigration Court to determine whether you may remain in the
United States. If you request a hearing, you may be detained in custody
or you may be eligible to be released on bond, until your hearing date.
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In the alternative, you may request to return to your country as soon as
possible, without a hearing.
Under the heading “Request for Disposition,” the form offered three options:
[1] I request a hearing before the Immigration Court to determine
whether or not I may remain in the United States.
[2] I believe I face harm if I return to my country. My case will be
referred to the Immigration Court for a hearing.
[3] I admit that I am in the United States illegally, and I believe I do not
face harm if I return to my country. I give up my right to a hearing
before the Immigration Court. I wish to return to my country as soon as
arrangements can be made to effect my departure. I understand that I
may be held in detention until my departure.
Petitioner selected the third option. DHS records provided additional details
regarding this encounter, including that Petitioner was apprehended, detained,
photographed, fingerprinted, and checked against an identification database, and that
he voluntarily returned to Mexico.
At a February 27, 2014, hearing before the IJ, Petitioner testified that he had
entered the United States in June of 1999. He acknowledged that he signed the Form
I-826 on March 23, 2001, and that he understood that the form related to his
voluntary departure from the United States. He stated, however, that the immigration
officer did not explain that Petitioner gave up his right to an immigration hearing by
signing the form; how voluntary departure would work; the consequences of violating
the voluntary departure, including a possible civil monetary penalty and the inability
to request cancellation of removal or adjustment to permanent resident status for a
period of up to ten years; or that a voluntary departure would break his continuous
presence in the United States. Petitioner testified on cross-examination that he was
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22 years old on March 23, 2001; that on previous occasions he had been apprehended
by the Border Patrol and returned to Mexico, including one that had occurred three
days earlier; that he never signed a Form I-826 on any of these previous occasions;
that he was able to read Spanish; that the Form I-826 he signed was written in
Spanish, the officers he spoke to spoke Spanish, and he had no problems
communicating with the officers; that he was not free to leave within the United
States between the time of his apprehension and his return to Mexico; and that he had
previously been convicted of illegal entry into the United States by a federal district
court, for which he could have been sentenced to imprisonment but was instead
returned to Mexico.
The IJ granted DHS’s motion to pretermit on May 7, 2014, finding that
Petitioner’s return to Mexico on March 23, 2001, was a voluntary departure “under
threat of deportation,” which broke his continuous presence in the United States. The
IJ reasoned that Petitioner’s Form I-826 selection to voluntarily leave the United
States in lieu of facing formal deportation proceedings showed that he had departed
under threat of deportation. That Petitioner was detained, photographed,
fingerprinted, and checked against a database prior to his March 23, 2001, voluntary
departure also led the IJ to conclude that he had departed under threat of deportation.
The Board dismissed Petitioner’s appeal, adopting and affirming the IJ’s decision.
In addition to adopting the IJ’s reasoning, the Board also rejected Petitioner’s claim
that he had not received the necessary warnings for a voluntary departure, stating that
“the respondent did not receive a formal grant of voluntary departure, rather, he was
permitted to return to Mexico.”
“Although the decision to grant cancellation of removal is a discretionary act
by the Attorney General that we may not review, we may consider the predicate legal
question whether the IJ properly applied the law to the facts in determining an
individual’s eligibility to be considered for the relief.” Reyes-Vasquez v. Ashcroft,
395 F.3d 903, 906 (8th Cir. 2005) (citations omitted). “In doing so, we give
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substantial deference to the agency’s interpretation of immigration statutes.” Id.“Because the Board affirmed the decision of the immigration judge based on a
clear-error standard of review for findings of fact, but also added reasoning of its
own, we review the two decisions together.” Goswell-Renner v. Holder, 762 F.3d
696, 699 (8th Cir. 2014). “The administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Id.(citing 8 U.S.C. § 1252(b)(4)(B)).
To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b), an alien
must show, among other elements, that he “has been physically present in the United
States for a continuous period of not less than 10 years immediately preceding the
date of such application.” This continuous period is deemed to end when the alien
is served an NTA. Id. § 1229b(d)(1). Because Petitioner was served an NTA on
August 13, 2009, he was required to show that he was continuously present in the
United States since August 13, 1999.
An alien’s continuous presence in this country is broken “when an alien
voluntarily departs under threat of deportation.” Reyes-Vasquez, 395 F.3d at 907(quoting Palomino v. Ashcroft, 354 F.3d 942, 944 (8th Cir. 2004)). “When an alien
is legally permitted 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 continuous presence.” Id. (quoting In re
Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002) (en banc)). “[T]he record must
show some evidence that the threat of deportation was expressed by immigration
officials and understood by the alien. It is not sufficient that an alien was simply
turned back at the border unless there was an express threat of deportation or
removal.” Ortiz-Cornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005) (citation
omitted).
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We agree with the Board and the IJ that Petitioner departed under threat of
deportation on March 23, 2001. His Form I-826 selection indicates that he was aware
of the threat that he would be removed and of his right to removal proceedings, and
that he elected to return to Mexico instead of exercising that right. Moreover,
although the fact that he was detained, photographed, fingerprinted, and checked
against a database is not by itself sufficient to show a voluntary departure under threat
of deportation, it is relevant to show that Petitioner underwent a “formal, documented
process.” In re Castrejon-Colino, 26 I. & N. Dec. 667, 670-71 (2015) (quoting In re
Avilez, 23 I. & N. Dec. 799, 805-06 (2005)). Given these circumstances, the Board
and the IJ did not err in concluding that Petitioner departed under threat of
deportation.
Petitioner contends that because he did not receive all of the necessary
warnings for a voluntary departure and thus did not understand the legal
consequences of voluntary departure under threat of deportation, his departure did not
break his continuous presence in the United States. Immigration officials are
authorized to permit an alien to voluntarily depart in lieu of facing removal
proceedings or prior to the proceedings’ completion. 8 U.S.C. § 1229c(a). Officials
may also allow voluntary departure at the conclusion of the proceedings if certain
conditions are met. Id. § 1229c(b). An alien who is permitted to voluntarily depart
and fails to do so within the specified time period is subject to a civil penalty between
$1,000 and $5,000 and is ineligible to receive several forms of relief for a period of
ten years. Id. § 1229c(d)(1). A voluntary departure order must inform the alien of
these penalties. Id. § 1229c(d)(3); 8 C.F.R. § 240.25(b). A decision regarding
voluntary departure must be communicated on a Form I-210 and may not be granted
unless the alien requests the departure and agrees to its terms and conditions.
8 C.F.R. § 240.25(c).1
1
The same requirements were in effect when Petitioner departed the United
States on March 23, 2001. See 8 U.S.C. § 1229c (2001); 8 C.F.R. § 240.25 (2001).
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As stated earlier, the Board dismissed this claim because Petitioner “did not
receive a formal grant of voluntary departure” but was instead “permitted to return
to Mexico.” Similarly, the government argues that Petitioner’s “voluntary return does
not emanate from the same regulatory or statutory scheme” described above. Resp’t’s
Br. 23-24. The government contends that “[v]oluntary departure under [the
regulatory scheme], which requires certain warnings by the agency, is reserved for
aliens placed in removal proceedings under . . . 8 U.S.C. § 1229a,” and that because
Petitioner “waived the opportunity to be placed in removal proceedings so as to return
to Mexico,” those warnings were not required in this case. Id. at 24.
We reject the government’s suggestion that the warning requirement set forth
in 8 C.F.R. § 240.25 is reserved for aliens placed in removal proceedings under
8 U.S.C. § 1229a. Section 1229c(a) authorizes the grant of voluntary departure either
prior to the conclusion of removal proceedings under § 1229a or in lieu of such
proceedings. The requirement under 8 C.F.R. § 240.25 to inform an alien of the
conditions of voluntary departure and the penalties for any breach applies to any grant
of voluntary departure under 8 U.S.C. § 1229c(a) and thus applies when the alien
waives removal proceedings and decides to depart voluntarily.
Nonetheless, we conclude that the failure to satisfy the warning requirement
does not preclude a finding of a voluntary departure under threat of deportation
sufficient to break the ten-year period of continuous presence required to be eligible
for cancellation of removal under 8 U.S.C. § 1229b(b). As earlier described, our
cases and the Board’s have held that an alien must depart under “an expressed and
understood threat of deportation,” and “with the knowledge that he does so in lieu of
being placed in proceedings” in order to break continuous presence. Reyes-Vasquez,
395 F.3d at 907 (quoting In re Romalez-Alcaide, 23 I. & N. Dec. at 429); see also
Ortiz-Cornejo, 400 F.3d at 612 (“[T]he record must show some evidence that the
threat of deportation was expressed by immigration officials and understood by the
alien. It is not sufficient that an alien was simply turned back at the border unless
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there was an express threat of deportation or removal.” (citation omitted)). Had
Petitioner received the warnings set forth in 8 C.F.R. § 240.25, they would have
amply demonstrated that Petitioner departed under a threat of deportation. See
Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir. 2004) (reasoning that the
“elaborate conditions” set forth in 8 C.F.R. § 240.25 demonstrate a threat of
deportation). For the reasons discussed earlier, however, we conclude that even
without receiving those warnings, Petitioner voluntarily departed the country under
a threat of deportation, thus breaking his continuous presence here.
The petition for review is denied.
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