ORTIZ-CORNEJO v. GONZALES

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Docket Number

No. 03-3986.

Attorney(S)

Counsel who represented the appellant was Robert Frager, Kansas City, Missouri. Counsel who represented the appellee was Robbin K. Blaya, Peter D. Keisler, and Terry J. Scadron, all of Washington, D.C.

Judges

Pasco Middleton Bowman

Acts

Aliens And Nationality — Immigration And Nationality — Immigration — Admission Qualifications For Aliens; Travel Control Of Citizens And Aliens — Inadmissible Aliens
Aliens And Nationality — Immigration And Nationality — Immigration — Inspection, Apprehension, Examination, Exclusion, And Removal — Cancellation Of Removal; Adjustment Of Status
Aliens And Nationality — Immigration And Nationality — Immigration — Adjustment And Change Of Status — Judicial Review Of Orders Of Removal

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Smart Summary

Factual and Procedural Background

Agustin Ortiz-Cornejo, a native and citizen of Mexico, first entered the United States without inspection in February 1987. In April 1996, he returned to Mexico to visit his parents. In May 1996, Ortiz-Cornejo attempted twice to reenter the United States but was stopped by immigration officers at the border and voluntarily returned to Mexico. Subsequently, in May or June 1996, he successfully reentered the United States without admission or parole. On July 25, 2001, the Immigration and Naturalization Service (INS) initiated removal proceedings against Ortiz-Cornejo, alleging removability as an alien present without admission or parole. Ortiz-Cornejo admitted removability but applied for cancellation of removal, asserting eligibility based on continuous physical presence in the United States.

The Immigration Judge (IJ) found Ortiz-Cornejo removable and denied cancellation of removal, concluding that the 1996 border stops interrupted the required ten years of continuous physical presence. The Board of Immigration Appeals (Board) affirmed the IJ's decision. Ortiz-Cornejo then petitioned for review of the Board's final order of removal and denial of cancellation of removal.

Legal Issues Presented

Whether the Immigration Judge erred in determining that Ortiz-Cornejo’s encounters with immigration officers at the U.S. border in 1996 interrupted the continuous physical presence required for cancellation of removal under 8 U.S.C. § 1229b.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005)	Judicial review is allowed for nondiscretionary determinations underlying cancellation of removal, including continuous physical presence; established that voluntary departure under threat of deportation requires evidence of such threat.	The court relied on this precedent to determine that the record lacked evidence of an express threat of deportation during Ortiz-Cornejo’s 1996 border stops, thus his continuous physical presence was not interrupted.
Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004)	Voluntary departure under threat of deportation may interrupt continuous physical presence required for cancellation of removal.	The court cited this case to support the principle that voluntary departure can interrupt physical presence if made under threat of deportation, which was not established here.
In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en banc)	Board’s interpretation that voluntary departure under threat of deportation interrupts continuous physical presence for cancellation of removal.	Referenced to underscore the Board’s position on interruption of continuous physical presence by voluntary departure under threat, which was not applicable in this case.
Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004)	Continuous physical presence requirement for cancellation of removal is a nondiscretionary determination subject to judicial review.	Used to confirm the court’s authority to review the continuous physical presence finding.
Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003)	Continuous physical presence requirement is subject to judicial review.	Supported the court’s review of the factual determination regarding continuous physical presence.

Court's Reasoning and Analysis

The court began by recognizing that Ortiz-Cornejo conceded removability, so the sole issue was whether the 1996 border stops interrupted his continuous physical presence required for cancellation of removal. The court noted that continuous physical presence ends if an alien departs for more than 90 days or aggregate periods exceeding 180 days, but Ortiz-Cornejo did not exceed these limits.

Next, the court examined whether Ortiz-Cornejo’s voluntary returns to Mexico in 1996 were under threat of deportation, which would interrupt continuous physical presence. The court emphasized that mere turning back at the border is insufficient; there must be express evidence of a deportation threat understood by the alien.

Reviewing the record, the court found no evidence that Ortiz-Cornejo’s voluntary departure was under threat of deportation. The INS counsel acknowledged lack of documentary evidence that Ortiz-Cornejo was informed of any deportation threat during the 1996 border encounters. Consequently, the court concluded the IJ erred in finding that Ortiz-Cornejo’s continuous physical presence was interrupted.

Accordingly, the court reversed the Board’s decision and remanded for further proceedings consistent with this reasoning.

Holding and Implications

The court REVERSED the Board of Immigration Appeals’ denial of cancellation of removal and REMANDED the case for further proceedings consistent with the opinion.

This decision directly affects the parties by requiring reconsideration of Ortiz-Cornejo’s eligibility for cancellation of removal without concluding that his continuous physical presence was interrupted by the 1996 border stops. The opinion does not establish new precedent beyond clarifying the evidentiary requirement for interruption of continuous physical presence in this context.

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Agustin ORTIZ-CORNEJO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

BOWMAN, Circuit Judge.

Agustin Ortiz-Cornejo, a native and citizen of Mexico, petitions for review of a final order of removal issued by the Board of Immigration Appeals (Board) on November 26, 2003, and the Board's denial of his application for cancellation of removal. We reverse and remand.

Ortiz-Cornejo first entered the United States without inspection in February 1987. In April 1996, Ortiz-Cornejo returned to Mexico to visit his parents. In May 1996, he twice attempted to reenter the United States but was stopped at the border by immigration officers and allowed to return to Mexico voluntarily. In May or June 1996, Ortiz-Cornejo successfully reentered the United States without having been admitted or paroled.

The Attorney General may, in his discretion and on a case-by-case basis, temporarily "parole" an alien into the United States for "urgent humanitarian reasons or significant public benefit." 8 U.S.C. § 1182(d)(5)(A) (2000).

On July 25, 2001, the Immigration and Naturalization Service (INS) commenced removal proceedings against Ortiz-Cornejo by issuing a notice to appear alleging that Ortiz-Cornejo was removable as an alien having entered the United States without having been admitted or paroled. Ortiz-Cornejo admitted the factual allegations contained in the notice to appear and conceded removability but claimed that he was eligible for cancellation of removal under 8 U.S.C. § 1229b (2000).

The INS was renamed the Bureau of Immigration and Customs Enforcement after it was transferred to the Department of Homeland Security.

The Immigration Judge (IJ) determined that Ortiz-Cornejo was removable under 8 U.S.C. § 1182(a)(6)(A)(i) (2000) as an alien present in the United States without being admitted or paroled. Although the IJ acknowledged that Ortiz-Cornejo presented a compelling case for cancellation of removal, he nevertheless concluded that the border stops in 1996 interrupted the ten years' continuous physical presence in the United States required to qualify for cancellation-of-removal relief. The Board summarily affirmed the IJ's ruling.

On appeal, Ortiz-Cornejo argues that the Board erred in affirming the IJ's denial of cancellation-of-removal relief. Because Ortiz-Cornejo conceded removability, the only issue presented on appeal is whether the IJ erred in finding that Ortiz-Cornejo's 1996 encounters with immigration officers at the United States border interrupted the continuous physical presence required for cancellation-of-removal relief. Although a discretionary decision "regarding the granting of relief under 8 U.S.C. § 1229b is not subject to judicial review," 8 U.S.C. § 1252(a)(2)(B) (2000), the nondiscretionary determinations underlying such a decision are subject to our review, see Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 2005 WL 147116, at *2 (2005). Whether an alien has complied with § 1229b's continuous-physical-presence requirement is a nondiscretionary determination that we may review. See id. at *2; see also Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th Cir. 2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217 (5th Cir. 2003). We review the Board's interpretation of immigration statutes with substantial deference. See Reyes-Vasquez, 395 F.3d 903, 2005 WL 147116, at *2.

Continuous physical presence ends if an alien departs 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). Although Ortiz-Cornejo did depart the United States, he did not exceed these time limits.

Voluntary departure under threat of deportation may serve to interrupt the continuous physical presence required for cancellation-of-removal relief. Palomino v. Ashcroft, 354 F.3d 942, 944 (8th Cir. 2004) (citing Board's interpretation of § 1229b in In re Romalez-Alcaide, 23 I N. Dec. 423, 424 (2002) (en banc)). After briefs in this case were filed, we held in Reyes-Vasquez that in order to establish that a voluntary departure was made under threat of deportation, the record must show some evidence that the threat of deportation was expressed by immigration officials and understood by the alien. 395 F.3d 903, 2005 WL 147116, at *2. It is not sufficient that an alien was simply turned back at the border unless there was an express threat of deportation or removal. Id.

In this case, Ortiz-Cornejo admitted in his application for cancellation of removal that on two occasions in May 1996 he attempted to enter the United States but was stopped by immigration officers and allowed to return to Mexico voluntarily. The record contains no evidence, however, that Ortiz-Cornejo's voluntary departure from the United States occurred under threat of deportation or removal proceedings. In fact, counsel for the INS acknowledged at the removal hearing that "the [INS] has no documentary evidence to submit to substantiate" that Ortiz-Cornejo was even stopped at the border in 1996, much less that he was informed that he could face deportation or removal proceedings should he refuse to voluntarily depart the United States. Administrative Record of June 11, 2002, Removal Hearing at 000075. Without evidence that Ortiz-Cornejo voluntarily departed the United States under an express threat of deportation or removal, the record does not support the IJ's determination that Ortiz-Cornejo's continuous physical presence in the United States was interrupted. We therefore remand the case to the Board for further proceedings consistent with this opinion.