Opinion
No. 04-72652.
Argued and Submitted April 18, 2007 Pasadena, California.
May 9, 2007.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A95-194-631.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Renato Astorga Landeros, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming without opinion the immigration judge's ("IJ") denial of his petition for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252.
Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition.
Because the BIA affirmed the IJ's decision without opinion, the IJ's decision constitutes the final agency action which we review. See 8 C.F.R. § 1003.1(e)(4)(ii); see also Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir. 2005) (citing Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004)); Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004).
On September 24, 2001, the former Immigration and Naturalization Service ("INS") issued a Notice to Appear ("NTA") and commenced removal proceedings against Landeros, charging him as removable as an alien present in the United States without having been admitted or paroled pursuant to 8 U.S.C. § 1182(a)(6)(A)(I). Landeros conceded removability as charged and sought relief in the form of cancellation of removal. After the government attorney said he believed Landeros was statutorily ineligible for cancellation of removal because he had previously been "granted voluntary departure," the IJ placed Landeros under oath and questioned him.
Landeros testified that he had three encounters with immigration officials during his time in the United States: in January of 1992, in August of 1994, and in November of 1999. Landeros testified that in 1994 he was working at the Chino Valley Car Wash when immigration officials rounded him up and shortly thereafter, drove him to Mexico. Based on this testimony, and the fact that Landeros checked a box stating he had departed the United States "pursuant to a grant of voluntary departure" on his application for cancellation of removal, the IJ concluded that Landeros was ineligible for cancellation of removal based on the IJ's assessment that the August 1994 incident interrupted Landeros's accrual of the requisite ten years continuous physical presence. On May 20, 2004, the BIA affirmed without opinion the results of the decision below.
Landeros remained in the United States from his initial entrance in March of 1991 until January of 1992 when he departed for an "emergency" in Mexico; he re-entered the United States without inspection later that month. In November of 1999, Landeros again left the United States to return to Mexico to attend his mother's funeral; he re-entered the United States without inspection ten days later, though he was turned around at the border prior to successfully re-entering without inspection. Neither the 1991 nor the 1999 visits to Mexico are at issue in this appeal.
The government argues that Landeros failed to exhaust his administrative remedies by allegedly not raising the arguments found in his petition for review below before the BIA or the IJ. We disagree. First, Landeros's counsel before the IJ adequately objected to the IJ's decision finding Landeros statutorily ineligible, arguing that the Romalez case was not on point and that a merits hearing should be held, such that the issue of whether the 1994 incident constituted an administrative voluntary departure terminating the accrual of continuous physical presence was before the IJ. Second, Landeros's pro se brief to the BIA raised the main issue of what circumstances give rise to an administrative voluntary departure terminating the accrual of continuous physical presence. Landeros's arguments that the IJ had not provided a correct legal basis for finding him statutorily ineligible for cancellation of removal and that he had met the statutory requirements, coupled with the IJ's decision below, placed the issue before the BIA. We conclude that Landeros exhausted his administrative remedies and we have jurisdiction to review Landeros's claim that the 1994 incident does not qualify as an administrative voluntary departure, and should not affect his accrual of ten years continuous physical presence under our decisions in Tapia v. Gonzales, 430 F.3dd 997 (9th Cir. 2005) and Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006), which were decided after the BIA denied Landeros's petition.
We "review for substantial evidence the BIA's non-discretionary factual determinations, including the determination of continuous physical presence." Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir. 2004). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." MonjarazMunoz v. INS, 327 F.3d 892, 895 (9th Cir. ), amended by 339 F.3d 1012 (9th Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))).
To be eligible for cancellation of removal, Landeros must prove, among other things, that he has been physically present in the United States for a continuous period of at least ten years. See 8 U.S.C. § 1229b(b)(1)(A); see also Tapia, 430 F.3d at 997-98. "A short departure from the United States, such as a brief return to the alien's native country for family reasons, does not necessarily interrupt the accrual of an alien's period of physical presence in the United States . . . ." Tapia, 430 F.3d at 998; see also 8 U.S.C. § 1229b(d)(2). Thus, "[a]n alien who has briefly departed United States . . . can still qualify for cancellation of removal by including the time spent here before the brief absence." Tapia, 430 F.3d at 998.
"Some absences do[, however,] interrupt an alien's continuous physical presence, no matter how brief." Id. (citing Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir. 2003) amending 315 F.3d 1201 (9th Cir. 2003)). In Vasquez-Lopez, we held that an alien who left the United States pursuant to administrative voluntary departure could not continue to accrue presence in the United States from an earlier date. Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir. 2003) amending 315 F.3d 1201 (9th Cir. 2003). In doing so, this court deferred to the BIA's conclusion in In re Romalez-Alcaide that an administrative voluntary departure interrupted an alien's continuous physical presence. See id. (citing In re Romalez-Alcaide, 23 I. N. Dec. 423 (BIA 2002) (en banc)). "However, not all departures after contact with immigration officials constitute administrative voluntary departures that interrupt an alien's continuous physical presence in the United States." Ibarra-Flores, 439 F.3d at 618.
Here, the record is not sufficient for us to determine whether Landeros departed pursuant to an administrative voluntary departure. We do not know if any formal agreement was entered in 1994 between the government and Landeros pursuant to which he agreed to depart in lieu of being removed. If there was such an agreement, we do not know if it was knowing and voluntary. The IJ's decision and the BIA's decision in this case occurred before our opinions were issued in Tapia and Ibarra-Flores. Accordingly, we remand to the BIA so that it may permit an IJ to hold an evidentiary hearing concerning the circumstances of Landeros's prior departures. The IJ, after determining the facts, should apply the principles that we have adopted in Tapia and Ibarra-Flores, and the BIA can also then decide based on a factual record and recourse to these precedents.
PETITION FOR REVIEW GRANTED; VACATED AND
REMANDED WITH INSTRUCTIONS.