Cancellation of Removal/Break in Continuous Physical Presence Based on Execution of Form I-826 and Voluntary Return

In Reyes-Sanchez v. Holder, 2011 WL 2725813 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Mexico whose application for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)], applicable to nonlawful permanent resident aliens, was denied by the IJ and the BIA. The circuit court agreed with the government that the petitioner's apprehension by the U.S. Border Patrol and her formalized agreement to return to her native Mexico rather than to opt for an immigration court hearing interrupted her statutorily required 10-year period of continuous physical presence, thus rendering her ineligible to qualify for cancellation relief. The Seventh Circuit affirmed the agency’s determination that petitioner was ineligible for Cancellation of Removal because her voluntary return (Form I-826) after a brief visit to Mexico was under threat of prosecution and thus was sufficient to break her continuous presence in the United States.

The petitioner entered the U.S. without inspection in 1987. She subsequently married and raised three children in the U.S. She returned briefly to Mexico in 2001 and reentered the U.S. in August 2001 without being admitted or paroled. Upon her apprehension by the Border Patrol and placement into custody, she executed the Spanish version of Form I-826, Notice of Rights and Request for Disposition. It offered her three options: (1) hearing before IJ, (2) asylum hearing, or (3) acknowledgement of unlawful presence and agreement to return to native country as soon as arrangements can be made for departure. The petitioner chose the third option and was immediately returned to Mexico. In May 2003, she was apprehended in the U.S. by Immigration and Customs Enforcement (ICE) agents who were looking for her nephew, and she was placed into removal proceedings, charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] with being present in the U.S. without having been admitted or paroled.

Before the IJ, her counsel conceded the petitioner's removability and opted not to ask for cancellation due to the break in residence. The IJ refused to grant a continuance pending the results of the petitioner's legalization application but granted voluntary departure (VD) relief. While her case was pending before the BIA, the Eighth Circuit issued a decision, Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005), which held that merely being turned back at the border without any threat of deportation does not constitute a break in continuous physical presence for purposes of cancellation relief. Consequently, the Board returned Reyes-Sanchez's case to the IJ for fact finding on the “break” issue. The IJ then proceeded to hold that the petitioner's return to Mexico pursuant to the I-826 process was a response to a threat of removal and therefore broke her continuous U.S. presence. The BIA affirmed this result and did not extend her VD as she failed to post the required bond. In upholding the Board's decision, it deferred to its precedent decision in Matter of Romalez-Alcaide, 23 I. & N. Dec. 423 (B.I.A. 2002) (en banc), which held that, in addition to the departures exceeding the specified durations under the statute, a departure under a threat of deportation also constitutes a break in the accrual of continuous physical presence for cancellation purposes. The Board characterized acceptance of voluntary departure under the prior regime as a “plea bargain” and remarked that this type of enforced departure should create no legitimate expectation by either of the parties that an alien could illegally reenter the U.S. and resume a period of continuous physical presence.

The court contrasted the situation where an alien is merely just turned around at the border without any particular process, noting that in its prior decision, Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004), it deemed this type of return not to break the continuous presence as it could not be equated with a formal voluntary departure or departure under an order of removal or deportation. The court also cited to Matter of Avilez-Nava, 23 I. & N. Dec. 799 (B.I.A. 2005) (en banc), which recognized that a mere refusal to admit an alien at the border does not constitute a break in continuous physical presence as this does not involve a formal documented process pursuant to which the alien was determined to be inadmissible to the U.S. In that case, the Board outlined what might constitute a formal process, keying in on production of official forms and processes accompanying return of the alien to his or her native country.

The court outlined the process involved in Reyes's case and deemed it to be sufficiently formalized. It considered that Reyes's use of a fictitious name to sign the Form I-826 suggested that she understood the form did indeed carry legal consequences. The court rejected the counterarguments advanced by the petitioner, including that the use of the phrase “voluntary return” on the form was not the equivalent of “voluntary departure.” It pointed out that the use of different words in this context is not central to the law as interpreted by the Board in Romalez, supra, and that this understanding has been endorsed by every circuit court to consider this issue. The court noted that, at oral argument, petitioner's counsel argued that the form was insufficient because it did not go the extra step of informing Ms. Reyes that she might have been eligible for cancellation of removal based on her 10 years of continuous residence from 1987 to 2001 but would have to request a hearing. In rejecting this argument, the court remarked that, given the myriad of circumstances that those apprehended at the border face, the brevity of Form I-826 may well have been preferable to providing each detainee a denser explanation of the relevant law. The court was satisfied that the BIA and IJ correctly determined that the petitioner's continuous physical presence in the U.S. was interrupted when she chose to return to Mexico in a formal documented process while facing the threat of removal.