   19-2
   Lulea v. Barr
                                                                           BIA
                                                                     Loprest, IJ
                                                                   A097 981 538
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for
   the Second Circuit, held at the Thurgood Marshall United States
   Courthouse, 40 Foley Square, in the City of New York, on the 19th
   day of February, two thousand twenty.

   PRESENT:
             JOHN M. WALKER, JR.,
             BARRINGTON D. PARKER,
             SUSAN L. CARNEY,
                  Circuit Judges.
   _____________________________________

   PUIU VALI LULEA,
             Petitioner,

                   v.                                      No. 19-2

   WILLIAM P. BARR, UNITED STATES
   ATTORNEY GENERAL,
             Respondent.
   _____________________________________

   FOR PETITIONER:                 MICHAEL P. DIRAIMONDO, DiRaimondo &
                                   Masi, PC, Bohemia, NY.

   FOR RESPONDENT:                 ANDREW N. O’MALLEY, Senior Litigation
                                   Counsel (Joseph Hunt, Assistant
                                   Attorney General; Cindy S. Ferrier,
                                   Assistant Director, on the brief),
                                   for the Office of Immigration
                                   Litigation, United States Department
                                   of Justice, Washington, DC.
     UPON DUE CONSIDERATION of this petition for review of a Board

of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,

ADJUDGED, AND DECREED that the petition for review is GRANTED.

     Petitioner Puiu Vali Lulea, a native and citizen of Romania,

seeks review of a decision of the BIA affirming a decision of an

Immigration   Judge   (“IJ”)   denying   Lulea’s   application   for

cancellation of removal, relief available to certain nonpermanent

residents. In re Puiu Vali Lulea, No. A 097 981 538 (B.I.A. Dec. 7,

2018), aff’g No. A 097 981 538 (Immig. Ct. N.Y.C. Oct. 31, 2017).

We assume the parties’ familiarity with the underlying facts and

procedural history in this case. Under the circumstances of this

case, we have reviewed the IJ’s decision as modified by the BIA.

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

Cir. 2005).

     At the outset, Lulea claims that the IJ who issued the removal

order in 2017 lacked jurisdiction because a different IJ presided

over the hearings, which were conducted in 2013. No authority

establishes that an alien is entitled to have a particular IJ

render a decision in a matter. Here, the second IJ familiarized

himself with the record before issuing a decision. See 8 C.F.R.

§ 1208.2(b) (notice to appear vests jurisdiction in immigration

court and “immigration judges”). The regulations do not specify

that a notice to appear vests jurisdiction in proceedings before

                                 2
a particular judge. Accordingly, the fact that a second IJ issued

the decision does not invalidate the resulting order or provide a

basis for remand.

      Other considerations, however, require us to remand the cause

for further consideration of Lulea’s eligibility for cancellation

of removal. Lulea was served with a Notice to Appear (“NTA”) in

May   2007   for   overstaying   his       student   visa.   He   then   sought

cancellation of removal. A non-resident alien like Lulea may

establish eligibility for cancellation of removal if, among other

requirements, he can demonstrate 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.”

8 U.S.C. § 1229b(b)(1). Although Lulea appears to have been

physically present in this country after 2007, the statutory “stop-

time” rule provides that “any period of . . . continuous physical

presence in the United States shall be deemed to end . . . when

the alien is served with a notice to appear.” Id. § 1229b(d)(1)(A).

In addition, the applicable statute directs that “[a]n alien shall

be considered to have failed to maintain continuous physical

presence in the United States . . . 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.” Id. § 1229b(d)(2).

Thus, to be eligible for cancellation of removal, Lulea had to

                                       3
show he was continuously physically present in the United States

from May 1997 to May 2007.

     Although    our   jurisdiction       to   review   the    denial    of

cancellation is limited, see 8 U.S.C. § 1252(a)(2)(B)(i), (D), we

have jurisdiction to review the agency’s “nondiscretionary, or

purely legal, decisions regarding an alien’s eligibility” for that

relief. Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir. 2005). The

applicable standards of review are well established. See Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual

findings   for   substantial   evidence    and   questions    of   law   and

application of law to fact de novo).

     The agency found Lulea credible but concluded that he was

ineligible for cancellation of removal because, in the agency’s

view, he did not show by a preponderance of the evidence that the

extensive time he spent working on a Florida-based Princess Cruises

ship and the 54 days he spent in Romania between 1997 and 2007 did

not total more than 180 days outside of the United States. The

fact that Lulea has not left the country since May 2000 is not in

dispute, nor is the fact that he spent 54 days in Romania between

1997 and 2000. The only remaining question is whether, from 1997

through 2000, Lulea can be considered to have departed the United

States while working on the Princess Cruises ships. We conclude

that we cannot review the agency’s determination without its

                                   4
explanation as to what, in its view, constitutes a departure from

the United States where, as here, the applicant credibly testified

that most, if not all, of his time working on the U.S-based line

was spent on routes between U.S. ports.

     The agency found credible Lulea’s testimony that he worked on

ships that traveled between Florida and Alaska, and that he passed

through    the   Panama   Canal   and       made   stops   in    California    and

Washington State. The agency also found credible Lulea’s testimony

that, during the times between 1997 to 2000 that he was not on the

Alaska cruises, he worked on other cruises that took place in and

around Florida and cruises from Florida to Puerto Rico. It also

credited   Lulea’s   testimony     that,       when   he   had    time   off   and

disembarked, he stayed in Florida for at least several months each

time, living in an apartment he rented. Although the documents do

not indicate the routes traveled, he provided documentary evidence

of his employment on ships during these voyages. Lulea also

testified that he did not recall ever docking in a non-U.S. port,

although he knew the cruise line had routes that stopped at non-

U.S. ports.

     The agency found that Lulea did not carry his burden of

showing the absence of any aggregate break in his continuous

presence in the United States during the years he worked on cruise

ships. It considered “passage through international waters to be

                                        5
a departure from the United States.” Special App’x at 5. The agency

cited no legal authority for the proposition that traveling on a

ship     voyaging    between    U.S.     ports      constitutes        a    statutory

“departure” from the United States whenever the ship crosses

outside of U.S. territorial waters, however briefly. Lulea argues

that   his   trips    between    U.S.     ports    did    not   constitute            such

“departures.” This interpretive task presents a question of law

for the agency to address in the first instance.

       In its decision, the agency also relied on its view that “the

record is inconclusive as to the route this cruise ship traveled

and the port cities this cruise ship visited.” Special App’x at 5.

Lulea’s inability to provide the details of precise locations and

specific times during which each voyage occurred in the late 1990s

may not necessarily preclude him from demonstrating continuous

physical     presence.   We     agree    with     the    Seventh   Circuit            that

“[p]erfect    recollection      isn’t    part     of    the   burden       of   proving

continuous residence . . . A witness’s testimony may reveal a bad

memory     without   necessarily        vitiating       his   testimony         and    so

preventing him from carrying his burden of proof.” Lopez-Esparza

v. Holder, 770 F.3d 606, 609–10 (7th Cir. 2014).

       We therefore remand the cause to allow the agency to clarify

what constitutes a statutory departure from the United States under

these circumstances. Although the IJ provided an alternative basis

                                         6
for its denial of relief to Lulea, the BIA did not reach that

determination. Accordingly, that alternative basis—whether the

years Lulea spent as a “crewman” can be considered in determining

physical presence—is not currently before us.

     For the foregoing reasons, the petition for review is GRANTED,

the BIA’s decision is VACATED, and the cause is REMANDED for

further proceedings consistent with this Order.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe,
                              Clerk of Court




                                7
