Garcia v. Holder, No. 12-2259

Decided:  October 16, 2013

The Fourth Circuit denied Baltazar Olea Garcia’s petition for review of an order by the Board of Immigration Appeals (“BIA”) that rejected his application for cancellation of removal on the ground that he failed to meet the “continuous physical presence” requirement of 8 U.S.C. § 1229b.

In 1995, Mr. Garcia entered the United States illegally.  In 2001, he returned back to his home country of Mexico to attend his father’s funeral and, when attempting to return to the United States, Immigration and Naturalization Service (“INS”) officers detained him.  The INS officers fingerprinted and photographed Mr. Garcia and then offered him the opportunity to appear before an immigration judge.  Mr. Garcia declined the opportunity and opted to return to Mexico voluntarily.  He reentered the United States undetected several days later.  In 2009, the Department of Homeland Security (“DHS”) initiated removal proceedings against Mr. Garcia, who conceded his removability, but filed an application for cancellation of that removal.  The immigration judge concluded that Garcia was statutorily ineligible for cancellation because he was unable to show that he “continuously resided in the United States for the preceding ten years.”  The immigration judge found that the US-VISIT report that was created in 2001 when Mr. Garcia was photographed and fingerprinted at the border crossing was sufficient to show that Mr. Garcia had been formally excluded from the United States, thus ending his continuous presence.  Mr. Garcia appealed.

The Fourth Circuit explained that a removable alien, like Mr. Garcia, may petition the Attorney General for cancellation of removal pursuant to 8 U.S.C. § 1229b.  In order to prevail, the petitioner must prove that he maintained a physical presence in the United States for a ten-year continuous period.  In addition to the conditions set forth in the statute, the BIA has held that an alien’s continuous physical presence terminates when he voluntarily leaves the country under threat of removal.  However, the BIA has also indicated that an alien’s departure is not disqualifying if the INS officers simply turn him away at the border because this type of encounter with INS officers is too informal to count as a departure under threat of removal.  The Court first addressed Mr. Garcia’s challenge that the BIA’s policy on removal conflicts with the text of § 1229b.  The Fourth Circuit employed the traditional Chevron review of agency interpretation and held that the BIA’s interpretation of “breaks in presence” requirement under the statute was reasonable.  The Fourth Circuit then analyzed Mr. Garcia’s argument that the BIA erred in applying the holding of In re Romalze-Alcaide, 23 I. & N. Dec. 423 (BIA 2002), which provided that an alien’s continuous physical presence terminates when he voluntarily departs the United States under threat of removal.  The Court explained that, under the established law, an alien’s departure only counts for severing physical presence in the country when the alien departs pursuant to a “formal, documented process.”  Mr. Garcia argued that the evidence of his border encounter in 2001 was insufficient to establish his formal documented departure, which had the effect of rendering his return to Mexico ineffective in terminating his continuous physical presence in the United States.  The Fourth Circuit disagreed and held that Mr. Garcia’s 2001 encounter with INS officers was formal enough and documented in such a matter as to render his decision to re-enter Mexico a voluntary departure under the threat of removal.  Therefore, the Fourth Circuit denied Mr. Garcia’s petition.

Full Opinion

– John G. Tamasitis

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