Delfino Vasquez-Lopez v. John Ashcroft, Attorney General

OPINION

PER CURIAM:

Delfíno Vasquez Lopez (“Petitioner”) seeks review of the Board of Immigration Appeals’ (“BIA”) determination that his departure from the United States pursuant to a grant of administrative voluntary departure under what was then 8 U.S.C. § 1252(b)(4) (1994)1 occasioned a break in his “continuous physical presence in the United States” for the purposes of 8 U.S.C. § 1229b, the cancellation of removal statute. We conclude that the BIA’s reading of § 1229b is entitled to Chevron deference and deny the petition for review.

I.

Petitioner claims that he illegally entered the United States in 1988. He admits that, at some point during the period from 1992 to 1994, he was arrested by immigration authorities, admitted deporta-bility, successfully requested administrative voluntary departure under 8 U.S.C. § 1252(b)(4) (1994), and was escorted to Mexico by the Border Patrol. Shortly thereafter, he illegally reentered the United States.

In 1998, the INS initiated a removal proceeding against Petitioner by issuing him a Notice to Appear. Petitioner promptly applied to cancel the removal proceeding. The Immigration Judge (“IJ”) denied cancellation. The BIA conducted a de novo review and concluded that Petitioner lacked the ten years of continuous physical presence required to make him eligible for cancellation of removal. The BIA held that Petitioner’s voluntary departure to Mexico caused a break in his physical presence in this country.

II.

A.

When a statute is subject to more than one interpretation, courts will defer to the interpretation of the agency charged with the responsibility for administering it. Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43, *970104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In such circumstances, we ask only whether the agency’s interpretation is a reasonable one. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. See also Yang v. I.N.S., 79 F.3d 932, 935 (9th Cir.1996) (“In the face of ambiguity or Congressional silence, we should defer to the agency’s considered judgment.”).

Decisions made by the BIA are agency adjudications entitled to Chevron deference when deference is otherwise due. See Yang, 79 F.3d at 936 (“[I]t is a well-established principle of administrative law that an agency to whom Congress grants discretion may elect between rule making and ad hoc adjudication to carry out its mandate.”); I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (stating that “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication”) (internal quotation marks omitted). We must also be mindful that “judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations.” Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439 (internal quotations omitted).

B.

When Petitioner applied for cancellation of removal, the Attorney General was authorized to grant that discretionary relief only if Petitioner established that (1) he had “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application,” (2) he had “been a person of good moral character during such period,” (3) he had not been convicted of specified criminal offenses, and (4) his “removal would result in exceptional and extremely unusual hardship” to his “spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(l) (2002). Here, we are concerned only with the first of these requirements- — physical presence in the United States for a continuous period of ten years.

Petitioner filed his petition for cancellation of removal in 1998. In the early 1990s, he requested and was granted administrative voluntary departure in lieu of having deportation proceedings initiated against him. The record does not disclose when Petitioner returned from Mexico, but it is clear that if his presence there constituted a break in his continuous physical presence in the United States, he did not have ten years of such presence when Ms application for cancellation was filed.

Under the law existing at the time of Petitioner’s departure for Mexico, a “voluntary departure” under threat of coerced deportation constituted a break in continuous physical presence. We so held in Hernandez-Luis v. I.N.S., 869 F.2d 496 (9th Cir.1989), and Barraganr-Sanchez v. Rosenberg, 471 F.2d 758 (9th Cir.1972). In each of those cases, the Petitioner argued that his physical absence following his voluntary departure to avoid initiation of deportation proceedings should be ignored under a rule that excused absences that were “brief, casual, and innocent.” Hernandez-Luis, 869 F.2d at 498. See also Barragan-Sanchez, 471 F.2d at 760. In rejecting this contention, we stressed that the departures at issue, “although termed ‘voluntary’, were in fact coerced by threats of deportation.” Id. Such departures were “in lieu of deportation” and “accepted [by the alien as] the lesser of two evils.” Id. As such, “the alleged voluntary departures were the result of an implied agreement that [the alien] would *971not return. Otherwise, there would be no reason behind the procedure of voluntary departures in lieu of deportation proceedings.” Id. (emphasis in original). We concluded that, given this commitment to depart and not return absent authorized reentry proceedings, the departures could not be ignored as casual and devoid of significance.

The Petitioner here acknowledges that a break in his continuous presence occurred under the law as it existed at the time of his departure. He insists, however, that Congress has since altered the applicable law. His argument is predicated on a subsection of the cancellation of removal statute adopted by Congress in 1996 which provides in relevant part:

(2) Treatment of certain breaks in presence
An alien shall be considered to have faded to maintain continuous physical presence in the United States -under subsections (b)(1) and (b)(2) 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)(2).

Petitioner points out that the legislation that inserted this subsection deleted the portion of the prior statute excusing absences that are “brief, casual, and innocent and [do] not meaningfully interrupt the continuous physical presence.” He views subsection (d)(2) as having been substituted for this deleted material. He concludes that Congress has established a new bright-line, across-the-board rule that all absences are to be ignored if they last less than 90 days and do not exceed 180 days in the aggregate.

As we have indicated, the BIA concluded that the “continuous physical presence” requirement continues to mean the same thing in the context of administrative voluntary departures that it meant before the 1996 amendments: an administrative voluntary departure, which is effectuated in lieu of the institution of removal (deportation) proceedings, constitutes a break in continuous physical presence. Since the BIA’s decision in this case, an en banc BIA court has more fully articulated the rationale supporting this position in In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002)(en banc).

In Romalez-Alcaide, the BIA was confronted with a fact situation indistinguishable from that before us and with an identical contention that § 1229b(d)(2) excuses any absence of less than 90 days as well as and any series of absences totaling less than 180 days (“the 90/180-day period”). It held, as the BIA did in this case, that § 1229b(d)(2) did not excuse absences resulting from an administrative voluntary departure even if their duration was shorter than the 90/180-day period.

The Romalez-Alcaide court began its analysis by quoting the “continuous physical presence” requirement of § 1229b(b)(l) and by referencing the holding in I.N.S. v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984), that “[a]bsent further statutory qualification or exception, this ‘continuous physical presence requirement’ does not permit an applicant to make any departures whatsoever from the United States during the qualifying period.” Romalez-Alcaide, 23 I. & N. Dec. at 425. The court then noted that, in response to Phinpathya, Congress had amended the statute to create an exception to this absolute rule for “brief, casual, and innocent” departures, 8 U.S.C. § 1254(b)(2) (Supp. IV 1986), thereby establishing an express definition for “breaks” in continuous physical presence that prevailed from 1986 to the adoption of § 1229b(d)(2) in 1996.

With this background, the court turned to § 1229b(d)(2) and to the deletion of the express statutory reference to “brief, casu*972al, and innocent departures.” It tacitly recognized that this deletion did not evidence a Congressional return to the preceding absolute rule under which any physical absence whatsoever constitutes a break; if Congress had contemplated such a scheme, it would have been pointless for it to mandate that absences beyond the 90/180-day period would constitute a break. This suggested that there remain some physical absences too insignificant to constitute a break. In the Romalez-Al-caide court’s view, this suggestion found support in the text of § 1229b(d)(2). It noted that “[t]he objective command that departures of certain lengths ‘shall’ break continuous physical presence implies that [at least some] shorter departures are acceptable.” Romalez-Alcaide, 23 I. & N. Dec. at 426.

While accepting the suggestion that some physical absences are too insignificant to constitute a break, the Romalez-Alcaide court nevertheless rejected the petitioner’s argument that § 1229b(d)(2) was intended to provide an exclusive standard for judging breaks in physical presence and, accordingly, that all departures for less than the 90/180-day period are excused. It first pointed out that “[t]he statutory language ... does not literally forgive any single departure of 90 days or less or aggregate departures of 180 days or less.” Id. at 425. It only mandates that an alien who has departed for more than the 90/180 day period “shall be considered to have failed to maintain continuous physical presence.” 8 U.S.C. § 1229b(d)(2). Moreover, the court concluded, § 1229b(d)(2) “does not purport to be the exclusive rule respecting all departures. Rather, as its caption announces, it addresses the treatment of ‘certain breaks’ in presence, strongly implying that there can be breaks’ other than those which exceed the 90 or 180 day statutory limits.” Romalez-Alcaide, 23 I. & N. Dec. at 425 (emphasis in original).

Having thus concluded that absences for less than the 90/180-day period can be significant enough to disqualify an alien from cancellation of removal, the court looked to the statutory scheme in general, and the nature of orders of removal in particular, to determine the specific issue before it. It explained that “[a]n order of removal is intended to end an alien’s presence in the United States.” Id. at 426. For that reason, it seemed clear to the court that Congress did not intend for aliens who departed pursuant to an order of removal to be able to return within 90 days and continue to accrue continuous physical presence. Given that administrative voluntary departures were in lieu of removal proceedings and the entry of such orders, it followed that administrative voluntary departures should likewise be seen as severing the alien’s physical tie to the United States.2

The court concluded:

*973We therefore believe it would be contrary to the very reason for deportation and removal orders, as well as enforced voluntary departures, to read section 240A(d)(2) of the Act as preserving the period of physical presence acquired pri- or to an enforced departure for an alien who returns within 90 days of the enforcement action.

Id. at 427.

The court pointed out that this conclusion was consistent with the Attorney General’s reading of the statute as reflected in the regulations he promulgated to implement the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-100, § 203(b), 111 Stat. 2193, 2198 (1997), amended by Pub.L. No. 105-139, 11 Stat. 2644 (1997) (“ NACARA”). Section 240.64(b)(3) (2001) provides that, in the context of NACARA:

a period of continuous physical presence is terminated whenever an alien is removed from the United States under an order issued pursuant to any provision of the Act or the alien has voluntarily departed under the threat of deportation or when the departure is made for purposes of committing an unlawful act.

8 C.F.R. § 240.64(b)(3).

Given that the statutory provisions arguably relevant to the issue in the context of NACARA were not materially different from those otherwise applicable and the fact that NACARA was intended to benefit those aliens within its scope, the court understandably concluded that it was “not apparent how [it] could find the respondent eligible for cancellation of removal without adopting a construction of the statute that is directly at odds with the position adopted by the Attorney General in 8 C.F.R. § 240.64(b)(3).” Romalez-Alcaide, 23 I. & N. Dee. at 428.

Finally, the court quoted the statute under which the respondent there and the petitioners here were granted administrative voluntary departure:

In the discretion of the Attorney General, and under such regulations as he may prescribe, deportation proceedings, including issuance of a warrant of arrest, and a finding of deportability under this section need not be required in the case of any alien who admits to belonging to a class of aliens who are deportable under section 241 if such alien voluntarily departs from the United States at his own expense, or is removed at Government expense as hereinafter authorized, unless the Attorney General has reason to believe that such alien is deportable under paragraph (2), (3), or (4) of section 241(a).

Id. (quoting 8 U.S.C. § 1252(b)(4) (1994)).

The court likened the proceedings under this statute to a “plea bargain,” and then reasoned:

The alien leaves with the knowledge that he does so in lieu of being placed in proceedings. The clear objective of an enforced departure is to remove an illegal alien from the United States. There is no legitimate expectation by either of the parties that an alien could illegally reenter and resume a period of continuous physical presence.

Id. at 429.

We conclude that the BIA’s and the Attorney General’s reading of the statute is a reasonable one, worthy of our deference. Indeed, we find this analysis of the BIA persuasive and its conclusion compelled by the view of the nature of voluntary departure which we articulated in Hemandez-Luis and Barragam-Sanchez. In addition, we believe the conclusion is supported by the rationale underlying the contemporaneously adopted, so-called “stop time” provisions of the subsection immediately preceding § 1229b(d)(2). Subsection (d)(1) provides:

*974(1) Termination of continuous period For purposes of this section, any period of ... continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2) of this section, when 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 that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

An administrative “voluntary departure” under the statute is something that occurs with the permission of the Attorney General in lieu of removal proceedings. Under subsection (d)(1) of the removal statute as amended, any period of continuous physical presence ends as soon as removal proceedings are instituted. Thus, under this “stop time” provision, those in removal proceedings immediately cease to accrue “presence” that might entitle them to discretionary relief. See Pondoc Hernaez v. I.N.S., 244 F.3d 752, 758 (9th Cir.2001). While the statute provides some incentives to an alien to apply for voluntary departure and thus avoid removal proceedings and removal, nothing there suggests that an alien who commits to departure in order to avoid such proceedings is nevertheless entitled to continue accruing “presence” so as to become eligible for other discretionary relief.

Petitioner was not physically present in the United States while he was in Mexico. That absence was not in-advertent, casual, or otherwise lacking in significance. Rather, it occurred pursuant to an agreement between Petitioner and the Attorney General under which Petitioner agreed to depart and not to return other than in accordance with the entry process applicable to all aliens. It was not unreasonable for the BIA to regard Petitioner’s departure under these circumstances as a break in the continuum of his physical presence in the United States. Indeed, to regard him as having maintained his physical presence would be inconsistent with the statutory concept of voluntary departure in general and with the “stop time” provisions of § 1229b(d)(l) in particular.

We will defer to the BIA’s reasonable interpretation of the statute. Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439; Yang, 79 F.3d at 935.

The petition for review is DENIED.

. Prior to 1996, the authority of the Attorney General to grant voluntary departures prior to the initiation of removal (deportation) proceedings and his authority to grant voluntary departures during the pendency of such proceedings was conferred by two different statutes. 8 U.S.C. § 1252(b)(4) (1994) provided that "in the discretion of the Attorney General [with certain exceptions not here relevant,] deportation proceedings ... need not be required in the case of any alien who admits to belonging to a class of aliens who are deport-able under section 1251 of this title if such an alien voluntarily departs from the United States.” 8 U.S.C. § 1254(e)(1) (1994) provided, in relevant part, that the "Attorney General may, in his discretion, permit any alien under deportation proceedings ... to depart voluntarily from the United States at his own expense in lieu of deportation.” Since 1996, the authority to grant voluntary departure in both situations has been set forth in a single section, 8 U.S.C. § 1229c(a)(l), which provides, in relevant part, that "[t]he Attorney General may permit an alien voluntarily to depart the United States ... under this subsection, in lieu of being subject to proceedings under section [1229a of this title] or prior to the completion of such proceedings.” While the precise terms of the Attorney General’s statutory authority to grant voluntary withdrawal have varied during the period here relevant, the character of departures pursuant to a grant of voluntary departure has not materially changed.

. It is true, as pointed out by the concurring opinion in Romalez-Alcaide, that 8 U.S.C. § 1231(a)(5) makes all aliens who depart as the result of a removal order ineligible for all discretionary relief. It is also true that the stop-time rule of § 1229b(d)(l) will have broken continuous physical presence for all aliens who voluntarily depart after the institution of removal proceedings. Thus, reading § 1229b(d)(2) as the Romalez-Alcaide court did is not necessary to prevent these categories of aliens from continuing to accrue physical presence. But this fact does not diminish the persuasive force of the BIA’s analysis. Its point is that it is clear from the statutory scheme that Congress did not intend for aliens who were forced to depart during or following a removal proceeding to be eligible to return and apply for cancellation of removal and this strongly suggests that § 1229b(d)(2) should not be construed in a way that would put aliens who were forced to depart to avoid such proceedings in a position to apply for cancellation of removal if they managed to get back quickly — i.e., during the 90/180-day period.