Baltazar Garcia v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2259

BALTAZAR OLEA GARCIA,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: September 18, 2013 Decided: October 16, 2013

Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

Petition for review denied by published opinion. Judge Motz
wrote the opinion, in which Judge Wilkinson and Judge Floyd
joined.

ARGUED: Jeremy Layne McKinney, MCKINNEY PERRY & COALTER,
Greensboro, North Carolina, for Petitioner. Brendan Paul Hogan,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Cindy S. Ferrier, Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
DIANA GRIBBON MOTZ, Circuit Judge:

In this appeal, Baltazar Olea Garcia challenges an order of

the Board of Immigration Appeals (“BIA”) denying 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. We deny Garcia’s petition for review.

In 1995, Garcia, a native and citizen of Mexico, entered

the United States illegally. In 2001, he left this country to

attend his father’s funeral. When Garcia returned to the United

States a week later, Immigration and Naturalization Service

(“INS”) officers detained him at the border and took his

fingerprints and photograph. According to Garcia, INS officers

offered him the opportunity to appear before an immigration

judge, but he declined, opting to return to Mexico voluntarily.

Several days later, he reentered the United States undetected.

In 2009, the Department of Homeland Security (“DHS”)

initiated removal proceedings against Garcia. He conceded his

removability, but filed an application for cancellation of

removal.

At a 2011 hearing on the merits of his application, Garcia

testified about his 2001 apprehension at the United States-

Mexico border. He remembered being stopped by INS officers,

2
whom he believed informed him of his right to appear before an

immigration judge. Garcia testified that “[t]hey told me

that . . . I could sign [a] voluntary departure deportation

paper, or if I wanted to, I . . . could have a lawyer to . . .

see the [immigration] [j]udge.” AR 109. Unable to afford an

attorney, Garcia chose to return to Mexico voluntarily.

The DHS introduced a US-VISIT report 1 indicating that Garcia

had been fingerprinted and photographed in connection with the

2001 border stop. The DHS did not offer any departure form

signed by Garcia, nor did the US-VISIT report indicate whether

Garcia had signed one. Garcia offered no evidence -–

testimonial or otherwise –- expressly addressing whether he

signed any documentation.

The immigration judge concluded that Garcia was statutorily

ineligible for cancellation of removal because he could not show

that he continuously resided in the United States for the

preceding ten years. Citing the BIA’s decision in In re

Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002), the judge held

1
The United States Visitor and Immigrant Status Indicator
Technology Program (“US-VISIT”) is “an integrated, automated
entry-exit system that records the arrival and departure of
aliens; verifies aliens’ identities; and authenticates aliens’
travel documents through comparison of biometric identifiers.”
United States Visitor and Immigrant Status Indicator Technology
Program (“US-VISIT”), 69 Fed. Reg. 53,318-01 (Aug. 31, 2004) (to
be codified at 8 C.F.R. pts. 215, 235, 252). In 2013, the
Office of Biometric Management (“OBIM”) replaced US-VISIT.

3
that an alien’s physical presence terminates if he voluntarily

departs the country instead of submitting to removal -– at least

insofar as his departure occurs pursuant to a “formal,

documented process.” AR 310 (quoting In re Avilez-Nava, 23 I. &

N. Dec. 799, 805 (BIA 2005)). The immigration judge concluded

that Garcia’s testimony, coupled with the DHS’s US-VISIT report,

sufficed to show that Garcia had been formally excluded from the

United States, ending his continuous presence here.

After the BIA affirmed, Garcia noted a timely appeal.

II.

Removable aliens may petition the Attorney General for

cancellation of removal pursuant to 8 U.S.C. § 1229b (2006). To

prevail, a petitioner must prove that he has been “physically

present in the United States for a continuous period of not less

than 10 years” prior to the filing of removal proceedings. Id.

§ 1229b(b)(1)(A); see also Salem v. Holder, 647 F.3d 111, 116

(4th Cir. 2011) (alien bears burden of proving eligibility for

cancellation of removal by preponderance of the evidence). The

statute sets forth several circumstances that terminate an

alien’s continuous presence:

(1) Termination of continuous period

For purposes of this section, any period of continuous
residence or continuous physical presence in the
United States shall be deemed to end (A) . . . when

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the alien is served a notice to appear under section
1229(a) of this title, or (B) when the alien has
committed an offense referred to in section 1182(a)(2)
of this title . . . .

(2) Treatment of certain breaks in presence

An alien shall be considered to have failed to
maintain continuous physical presence in the United
States under subsections (b)(1) and (b)(2) of this
section 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.

8 U.S.C. § 1229b(d).

In addition to the conditions specified in the statute, the

BIA has held that an alien’s continuous physical presence

terminates when he voluntarily departs the United States under

threat of removal. Romalez-Alcaide, 23 I. & N. Dec. at 429.

The BIA reasoned that it would be incongruous for an alien’s

physical presence to terminate if he were formally deported, but

for his physical presence to continue if he voluntarily departed

so as to avoid deportation. Id. at 426-27.

Although an alien’s departure under threat of removal

renders him ineligible for cancellation of removal, the BIA has

clarified that an alien’s departure is not disqualifying if INS

officers simply turn him away at the border. Avilez-Nava, 23 I.

& N. Dec. at 805. In this circumstance, the INS had not “made

[the alien] aware of the opportunity for exclusion proceedings,”

and thus his encounter with immigration officials is too

informal to count as a departure under threat of removal. Id.

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The BIA further explained in Avilez-Nava that to interrupt

“continuous presence” under 8 U.S.C. § 1229b(d), an alien’s

departure must exhibit some level of formality, documented by

some sort of record. Id. at 805-06. Evidence of a formal,

documented process includes “testimony or documentary evidence,”

such as voluntary departure forms, affidavits, or “other

appropriate . . . records.” Id. at 806.

Garcia poses two arguments on appeal. We consider each in

turn.

III.

Garcia initially contends that the BIA’s decision in

Romalez-Alcaide conflicts with the unambiguous text of § 1229b.

When a litigant contests an agency’s interpretation of a

statute, “we employ the familiar analysis prescribed by Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984).” William v. Gonzales, 499 F.3d 329, 331 (4th

Cir. 2007).

Chevron review involves a two-step analysis. First, we

must assess whether “the statute is silent or ambiguous with

respect to the specific issue” before us. Chevron, 467 U.S. at

843. If so, we must determine whether the agency’s construction

is reasonable. Id. An agency’s reasonable interpretation of a

6
statute will prevail, even if a better construction is possible.

Id.

Here, section 1229b is silent as to whether an alien’s

voluntary departure under threat of removal terminates his

“continuous physical presence” in the country. The statute does

not define “continuous physical presence,” but merely specifies

situations in which an alien’s continuous presence “shall be

deemed to end.” 8 U.S.C. § 1229b(d)(1). The statute provides

that an alien’s continuous presence terminates when removal

proceedings commence or when he commits certain kinds of crimes.

See id. It further specifies that continuous presence

terminates “if the alien [departs] the United States for any

period in excess of 90 days or for any period in the aggregate

exceeding 180 days.” See id. § 1229b(d)(2).

Garcia contends that the latter provision constitutes the

entire regulation of aliens’ breaks in presence. According to

Garcia, if an alien departs the country for fewer than 90 days

(or 180 days in aggregate), his “continuous physical presence”

has not ended. We disagree. Although § 1229b(d)(2) specifies

that certain breaks in presence render an alien ineligible for

cancellation of removal, these breaks do not constitute an

exhaustive list of every circumstance terminating an alien’s

continuous physical presence. The statute provides that

“continuous physical presence” terminates “if the alien

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[departs]” for more than ninety days; it does not provide that

physical presence terminates if and only if the alien so

departs. Id. § 1229b(d)(2).

In light of this statutory silence, the BIA’s

interpretation is reasonable. That the statute renders

departures in excess of ninety days “breaks in presence” does

not preclude a regulation making certain absences of shorter

duration also “breaks in presence.” The BIA’s logic in Romalez-

Alcaide is sound. Section 1229b(d)(1) terminates an alien’s

continuous physical presence when the DHS files a removal action

against him. Allowing an alien to evade termination by leaving

the country voluntarily would create a loophole that would

frustrate the statutory framework.

Garcia finds it significant that the BIA’s regulation

predates the statutory language pursuant to which it was

promulgated. He notes that under a prior version of the

Immigration and Nationality Act (“INA”), an alien could petition

for suspension of deportation if he had been continuously

present in the country for seven years -– “brief, casual, and

innocent departures” notwithstanding. Id. § 1254 (repealed

1996). Construing the old text, the BIA held that a voluntary

departure under threat of deportation was not “brief, casual,

and innocent,” and thus an alien who so departed was ineligible

for statutory relief. See Hernandez-Luis v. INS, 869 F.2d 496,

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498 (9th Cir. 1989). In 1996, Congress amended the INA,

replacing its “brief, casual, and innocent” language with

§ 1229b(d)(2)’s quantitative standard. Garcia argues that to

give effect to this new language, the BIA must be prohibited

from promulgating regulations identical to those issued under

the predecessor statute.

We disagree. The BIA’s decision in Romalez-Alcaide is not

inconsistent with a change in the law. By implementing a

quantitative standard, Congress cabined the BIA’s authority to

define which departures by aliens are “brief, casual, and

innocent.” This shift from a qualitative to a quantitative

standard, however, does not evince Congress’s intent to

eliminate the BIA’s discretion altogether. On the contrary,

section 1229b(d)(2)’s text entirely accords with the BIA’s

retention of some discretionary authority.

We note that all of our sister circuits to have considered

the question have found the BIA’s construction permissible. See

Barrera-Quintero v. Holder, 699 F.3d 1239, 1245 (10th Cir.

2012); Vasquez v. Holder, 635 F.3d 563, 570 (1st Cir. 2011);

Ascencio-Rodriguez v. Holder, 595 F.3d 105, 112-13 (2d Cir.

2010); Mendez-Reyes v. Attorney Gen., 428 F.3d 187, 191-92 (3d

Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th

Cir. 2004); Palomino v. Ashcroft, 354 F.3d 942, 944-45 (8th Cir.

2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217-18 (5th

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Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972-73 (9th

Cir. 2003) (per curiam). Like our sister circuits, we uphold

the BIA’s interpretation of § 1229b.

IV.

Alternatively, Garcia argues that even if Romalez-Alcaide

controls, the BIA erred in applying its holding to the facts of

his case. We review BIA decisions regarding an alien’s

eligibility for cancellation of removal –- including

determinations of his “continuous physical presence” –- for

substantial evidence. See Ramos v. Holder, 660 F.3d 200, 203

(4th Cir. 2011). To reverse, we must find that the evidence

before the BIA “was so compelling that no reasonable factfinder

could fail to find” eligibility for relief. INS v. Elias-

Zacarias, 502 U.S. 478, 483-84 (1992); Elliott v. Adm’r, Animal

& Plant Health Inspection Serv., 990 F.2d 140, 144 (4th Cir.

1993).

As announced in Avilez-Nava, the BIA regards an alien’s

departure as severing physical presence in the country only when

the alien departs pursuant to a “formal, documented process.”

23 I. & N. Dec. at 805-06. 2 In this case, the BIA reasoned that

2
This court has yet to address whether a formal, documented
process is necessary to sever an alien’s continuous presence in
the United States for purposes of cancellation of removal.
(Continued)
10
Garcia’s testimony, coupled with a US-VISIT report, established

that he received a “formal, documented process.” AR 3. Garcia

claims that this evidence was insufficient to establish his

formal documented departure, rendering his return to Mexico

ineffective in terminating his continuous physical presence

here.

The argument fails. Garcia’s own testimony demonstrated

the formality of the process he received. He testified that

when the INS detained him, officers informed him of his

inadmissibility to the United States. Further, he testified

that officers told him that he could return to Mexico

voluntarily, or if he desired, a judge could determine his

eligibility to enter the country. Specifically, Garcia

testified: “They told me that . . . I could sign [a] voluntary

departure deportation paper, or if I wanted to, I . . . could

have a lawyer to . . . see the [immigration] [j]udge.” AR 109.

Accordingly, Garcia’s situation differs from that of the alien

involved in Avilez-Nava. Garcia was “made aware of the

opportunity for exclusion proceedings” and understood that he

could avail himself of procedures to determine his eligibility

Because the Government does not suggest that the BIA could deny
Garcia’s application absent a formal process, we assume it is
necessary to the BIA’s disposition.

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for entry. Cf. Avilez-Nava, 23 I. & N. Dec. at 805. We are not

faced with an alien merely “turned away” at the border. See id.

Moreover, Garcia’s process was documented. The DHS

introduced a US-VISIT report, which indicated that Garcia was

stopped at the border and engaged with INS officers. To be

sure, the report did not indicate the manner by which Garcia

departed the country or what was said to him before he left.

But it did state the date and time of Garcia’s apprehension and

showed that INS officers fingerprinted and photographed him. We

cannot conclude that the BIA erred in finding that this

document, together with Garcia’s testimony, showed that Garcia

departed the United States pursuant to a “formal, documented

process.”

Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005), on which

Garcia relies, is not to the contrary. There, the Ninth Circuit

held that a record establishing the fact of an alien’s

fingerprinting did not establish the fact of his formal

departure. Id. at 1002. But in that case, the alien offered no

testimony regarding the level of formality by which he departed

the country. Though officers detained him and took his

fingerprints, the interaction could have preceded either a

formal or an informal departure. Here, Garcia testified to his

receipt of a formal process. The US-VISIT report served only to

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memorialize an encounter, the particulars of which were

established by the alien’s own testimony.

The BIA’s analysis and our conclusion comport with the

burden-shifting standard of the INA. As an applicant for

cancellation of removal, Garcia bore the burden of proving that

he was eligible for relief. Salem, 647 F.3d at 116. To

prevail, he had to show that he was not subject to a documented

process by which he left the country. On this point, Garcia’s

testimony was unclear. He did not expressly state whether he

signed any documents –- or failed to sign any documents –-

leaving the BIA to guess whether he was eligible for relief.

Our precedent counsels the BIA to resolve such ambiguities

against Garcia. Id. at 120 (“where . . . the relevant evidence

. . . is in equipoise, a petitioner has not satisfied his burden

to prove eligibility for relief from removal.”). In accord with

our directives, the BIA correctly rejected Garcia’s application

for cancellation of removal.

For the reasons stated above, Garcia’s petition for review

DENIED.