                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2005

Mendez-Reyes v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-4522




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                    NO. 04-4522
                   ____________

      GILBERTO MAUEL MENDEZ-REYES,
                          Petitioner
                   v.

ATTORNEY GENERAL OF THE UNITED STATES,
                         Respondent

                   ____________

      On Petition for Review of an Order of the
        United States Department of Justice
           Board of Immigration Appeals
               (BIA No. A92-168-205)


   Submitted Pursuant to Third Circuit LAR 34.1(a)
                  October 20, 2005

BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN
         and ALDISERT, Circuit Judges

             (Filed: November 1, 2005)
Regis Fernandez, Esq.
18 Green Street, Third Floor
Newark, NJ 07102

Counsel for Petitioner

Mary Jane Candaux, Esq.
Douglas E. Ginsburg, Esq.
James E. Grimes, Esq.
John M. McAdams, Jr., Esq.
U. S. Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044-0878

Counsel for Respondent


                           OPINION


VAN ANTWERPEN, Circuit Judge

        Only a brief recitation of the relevant facts is necessary
in this case. Petitioner Gilberto Mendez-Reyes (“Petitioner”),
a citizen of Mexico, claims that he has been residing in the
United States since 1985. He also claims that he took a brief
trip to Mexico in May, 1998. Upon arriving on an international
flight at Newark Airport on May 16, 1998, he was encountered
by immigration authorities, who referred him for secondary

                                2
inspection, which was to take place on July 28, 1998. At his
secondary inspection, Petitioner withdrew his application for
admission to the United States and departed the country. He
reentered in August of 1998, and removal proceedings based on
his unlawful reentry were initiated on September 6, 2002.

       At these removal proceedings, Petitioner conceded that
he was removable under 8 U.S.C. § 1182(a)(6)(A)(I) and
applied for cancellation of removal. Relief in the form of
cancellation of removal is within the discretion of the Attorney
General pursuant to 8 U.S.C. § 1229b(b)(1). In order to qualify,
the applicant must establish, among other things, continuous
physical presence in the United States for at least 10 years
immediately preceding the date of the application. 8 U.S.C. §
1229b(b)(1)(A). By oral decision dated September 5, 2003, the
Immigration Judge (“IJ”) determined that Petitioner could not
establish 10 years of continuous physical presence because of
the withdrawal of his application for admission and subsequent
departure on July 28, 1998.1 For the reasons set forth below, we
find no error in the IJ’s decision, and we will deny the Petition.

                                I.

       This Court generally lacks jurisdiction to review
discretionary decisions made under § 1229b regarding


  1
    Where, as here, the Board of Immigration Appeals (“BIA”)
merely adopts the decision of the IJ, this Court reviews the IJ’s
opinion on petition for review. See Abdulai v. Ashcroft, 239
F.3d 542, 549 n.2 (3d Cir. 2001).

                                3
cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(I). However,
under the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231, our jurisdiction is expanded to consider “constitutional
claims or questions of law” notwithstanding the jurisdictional
limitations of § 1252(a)(2)(B). 8 U.S.C. § 1252(a)(2)(D);
Papageorgiou v. Gonzales, 413 F.3d 356, 357-58 (3d Cir. 2005).
Petitioner raises two related questions of law that are properly
before us pursuant to § 1252(a)(2)(D): (1) whether the IJ erred
in finding that the withdrawal of an application for admission
constitutes a break in physical presence for the purposes of §
1229b(b)(1)(A); and (2) whether In re Romalez-Alcaide, 23 I &
N Dec. 423 (BIA 2002), the agency decision on which the IJ
relied, is entitled to deference under Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

          The government raises an additional jurisdictional
argument, claiming that Petitioner’s claims are rendered moot by
his failure to abide by a voluntary departure order. In the
underlying immigration proceedings, Petitioner applied for
voluntary departure as an alternative to cancellation of removal.
The BIA’s November 10, 2004, order affirmed the IJ’s denial of
cancellation of removal and granted voluntary departure. The
BIA ordered Petitioner to depart “within 30 days from the date
of this order.” The order also advised Petitioner of the
consequences of failing to timely depart, which are set forth in
8 U.S.C. § 1229c(d): “If an alien is permitted to depart
voluntarily under this section and fails to voluntarily depart the
United States within the time period specified, the alien shall be
. . . ineligible for a period of 10 years for any further relief under
this section and section[] 1229b. . . .”

       The government asserts that Petitioner failed to timely
depart by December 10, 2004, and argues that Petitioner is now
statutorily ineligible for cancellation of removal under §
1229c(d), thus mooting the petition for review of the agency’s


                                  4
cancellation of removal decision. Cf. County of Morris v.
Nationalist Mvmt., 273 F.3d 527, 533 (3d Cir. 2001) (“The
mootness doctrine is centrally concerned with the court’s ability
to grant effective relief.”); Blanciak v. Allegheny Ludlum Corp.,
77 F.3d 690, 698-99 (3d Cir. 1996) (“[I]f developments occur
during the course of adjudication that eliminate a plaintiff’s
personal stake in the outcome of a suit or prevent a court from
being able to grant the requested relief, the case must be
dismissed as moot.”).

        The agency has not had the opportunity to address the
effect, if any, that Petitioner’s apparent failure to timely depart
may have on his previous application for cancellation of
removal. As such, the record contains no facts pertaining to
Petitioner’s compliance (or non-compliance) with the statutory
and regulatory requirements of voluntary departure, and we are
ill-equipped as an appellate court to determine in the first
instance whether § 1229c(d) is a bar to relief in this case.2
Because we cannot be certain based on the record before us
whether § 1229c(d) is applicable in this case, we cannot agree
with the government that the requested relief (remand for further


   2
    There may be issues which are not before us. For example,
an alien granted voluntary departure must post a voluntary
departure bond. 8 CFR § 1240.26(c)(3). “If the bond is not
posted within 5 business days, the voluntary departure order
shall vacate automatically and the alternate order of removal
will take effect on the following day.” Id. (emphasis added). If,
for the sake of argument, Petitioner had failed to post bond, he
would be subject to a removal order, not a voluntary departure
order, and Petitioner might argue that he did not overstay a
voluntary departure period at all. We express no opinion on the
validity of such an argument, but only note that such issues
might arise in determining the impact of § 1229c(d), and these
issues would be best left for the agency’s initial consideration.

                                5
consideration of Petitioner’s cancellation of removal claim) will
be ineffective as a matter of law. Therefore, were we to
conclude on the merits that the IJ’s grounds for initially denying
cancellation of removal were legally incorrect, we would
remand for the agency to consider the government’s arguments
under § 1229c(d) in the first instance.

                               II.

       All of the foregoing being said, we find that
Petitioner’s allegations of legal error by the IJ are without
merit, and further consideration of this case by the agency is
thus unnecessary. In reviewing the merits of Petitioner’s
claims, this Court reviews the agency’s conclusions of law de
novo, “subject to established principles of deference.” Wang
v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (citing Chevron,
467 U.S. 837). We apply substantial evidence review to
agency findings of fact, departing from factual findings only
where a reasonable adjudicator would be compelled to arrive
at a contrary conclusion. 8 U.S.C. § 1252(b)(4)(B). Applying
these principles, we hold that the agency’s ruling in
Romalez-Alcaide, 23 I & N Dec. 423, is entitled to deference
and that the IJ correctly applied that ruling in this case.

                               A.

         As noted, an alien applying for cancellation of removal
must establish at least ten years of continuous physical
presence in the United States under § 1229b(b)(1)(A).
Section 1229b(d) sets forth two situations in which
continuous presence is deemed to have been broken. First,
physical presence “shall be deemed to end . . . when the alien
is served a notice to appear under section 1229(a) of this
title,” or when the alien has committed a criminal offense
referred to in 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or


                                6
1227(a)(4). 8 U.S.C. § 1229b(d)(1). The second situation is
set forth in § 1229b(d)(2):

       (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)(2).

       In Romalez-Alcaide, the BIA held that continuous
physical presence is also broken when the alien voluntarily
departs under the threat of deportation. 23 I & N Dec. at 429.
In determining whether this holding is entitled to deference,
we must first determine whether Congress has “directly
spoken to the precise question at issue.” Chevron, 467 U.S. at
842. “If Congress has done so, the inquiry is at an end; the
court ‘must give effect to the unambiguously expressed intent
of Congress.’” FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 132 (2000) (quoting Chevron, 467 U.S. at 843).

       Petitioner argues that § 1229b(d) sets forth the only
conditions under which continuous physical presence is
broken and contains the “unambiguously expressed intent of
Congress” that departures not exceeding the 90/180 day
period shall not be deemed to break physical presence.
Petitioner thus claims that the BIA improperly “introduce[d]
an additional requirement not enacted by statute,” (Brief for
Petitioner at 22), by holding that voluntary departure under
the threat of removal constitutes a break in physical presence


                               7
regardless of whether the resulting departure exceeds the
90/180 day period.

        We disagree. Section 1229b(d) sets forth various
circumstances under which continuous physical presence must
be deemed to have been broken, but it does not by its terms
provide the exclusive definition of break in physical presence.
The statute does not further define “continuous physical
presence,” and it is silent as to whether there are additional
circumstances under which continuous physical presence may
be broken. In other words, the fact that Congress has declared
that a departure of more than 90 days shall constitute a break
in physical presence does not necessarily mean that departures
of less than 90 days shall not constitute a break in physical
presence. Thus, Congress has remained silent on the precise
issue presented in both this case and Romalez-Alcaide:
whether a departure of less than 90 days can ever create a
break in physical presence.

       In the absence of statutory language addressing the
precise issue at hand, we move to the second step of the
Chevron analysis to determine whether the agency has
adopted a permissible construction of the statute. 467 U.S. at
843. Applying this standard in the immigration context, this
Court has noted, “In light of the INA’s enormously broad
delegation to the Attorney General, we would be extremely
reluctant to hold that his interpretation [of the INA] is
unreasonable.” Abdulai v. Ashcroft, 239 F.3d 542, 552 (3d
Cir. 2001).

      The Ninth Circuit in Vasquez-Lopez v. Ashcroft, 343
F.3d 961, 972 (9th Cir. 2003) succinctly summarized the
BIA’s reasoning in Romalez-Alcaide as follows:




                              8
       [The BIA] explained that “an order of removal
       is intended to end an alien’s presence in the
       United States.” [Romalez-Alcaide, 23 I & N
       Dec.] at 426. For that reason, it seemed clear to
       the court that Congress did not intend for aliens
       who departed pursuant to an order of removal to
       be able to return within 90 days and continue to
       accrue continuous physical presence. Given that
       administrative voluntary departures were in lieu
       of removal proceedings and the entry of such
       orders, it followed that administrative voluntary
       departures should likewise be seen as severing
       the alien’s physical tie to the United States.

Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir. 2003).
In relying on the fact that voluntary departure is granted “in
lieu of removal proceedings,” the BIA likened the process of
being granted voluntary departure to the quid pro quo of plea
bargaining:

       The alien leaves with the knowledge that he
       does so in lieu of being placed in proceedings.
       The clear objective of an enforced departure is
       to remove an illegal alien from the United
       States. There is no legitimate expectation by
       either of the parties that an alien could illegally
       reenter and resume a period of continuous
       physical presence.

Romalez-Alcaide, 23 I & N Dec. at 429. Against this
background, the BIA held that it would be against
congressional intent3 to allow an alien who accepted the


  3
    The BIA determined that the 1996 amendments to the INA
evidenced a congressional intent “to deter illegal immigration to

                                9
privileges of voluntary departure in lieu of removal
proceedings to continue to accrue continuous physical
presence under § 1229b after illegally reentering the country,
just because he managed to do so within 90 days. Id.

        We join every other court of appeals that has addressed
the issue in holding that the BIA’s application of § 1229b in
Romalez-Alcaide constitutes a permissible construction of the
statute. See 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, 218
(5th Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961,
972-74 (9th Cir. 2003).

                                B.

        We find no error in the IJ’s application of the holding
in Romalez-Alcaide to Petitioner’s application for cancellation
of removal in this case. Petitioner argues that withdrawal of
an application for admission should not be treated the same as
voluntary departure for the purposes of calculating continuous
physical presence. He asserts that, unlike voluntary departure,
withdrawal of an application for admission involves a
unilateral choice on the part of the alien, which can be made
at any time. Therefore, according to Petitioner, his unilateral
decision cannot be likened to a plea bargain in order to avoid
removal proceedings in the same way that voluntary departure
can.




the United States by curbing the incentive for aliens to extend
their stays in this country and prolong their cases in order to gain
immigration benefits.” Romalez-Alcaide, 23 I. & N. Dec. at
429.

                                10
        On the contrary, however, whether an alien is granted
permission to withdraw an application for admission is “in the
discretion of the Attorney General,” 8 U.S.C. § 1225(a)(4),
and it is therefore not merely a unilateral decision on the part
of Petitioner. In addition, the signed document in which
Petitioner withdrew his application for admission stated, “I
understand that my voluntary withdrawal of my application
for admission is in lieu of a formal determination concerning
my admissibility.” A.R. 118 (emphasis added). Therefore,
Petitioner’s acquisition of permission to withdraw his
application is identical to being granted voluntary departure
insofar as Petitioner obtained that permission in order to avoid
the perils of removal proceedings.

        Finally, Petitioner claims that he was not actually
“under threat of deportation” because his removability has
never been established. He asserts that, by merely
withdrawing his application for admission, he did not concede
removability. However, had Petitioner even allowed
immigration proceedings to be initiated against him in 1998,
his continuous physical presence would have been
automatically terminated under § 1229c(d)(1). Rather than
allow this to happen, Petitioner agreed to withdraw his
application for admission and depart the country immediately.
Just as with a voluntary departure, neither the government nor
Petitioner himself could have a “legitimate expectation . . .
that [he] could illegally reenter and resume a period of
continuous physical presence.” Romalez-Alcaide, 23 I & N
Dec. at 429. And just as in the case of voluntary departure,
Petitioner should not be able to benefit from the fact that he
managed to illegally reenter the United States before the 90-
day time frame expired under § 1229c(d)(2).

                              III.



                              11
      For the foregoing reasons, we will deny the Petition for
Review.




                             12
