United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS October 27, 2003
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-60405
JOSE MIRELES-VALDEZ,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A91-198-797)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
If we have jurisdiction, see 8 U.S.C. § 1252 (prescribing
rules for judicial review of removal orders and, inter alia,
precluding jurisdiction over certain denials of discretionary
relief), at issue is whether a voluntary departure from the United
States under the threat of the commencement of immigration
proceedings interrupts the requisite continuous presence for
eligibility for cancellation of removal, pursuant to 8 U.S.C. §
1229b (prescribing the four requirements for cancellation of
removal eligibility). We have jurisdiction; such departure is an
interruption. DENIED.
I.
Mireles-Valdez, a native and citizen of Mexico, illegally
entered the United States in 1973; departed in 1998; was
apprehended at the border 14 days later, while attempting to
return; agreed to accept an administrative voluntary departure; and
was returned to Mexico without having proceedings brought against
him. The day after that departure, however, Mireles-Valdez
illegally returned to the United States. In February 1999, he was
arrested and turned over to the INS, which began proceedings
against him on 8 February 1999 by issuing a Notice to Appear.
In those proceedings, Mireles-Valdez admitted he was present
illegally in the United States and therefore subject to removal.
He applied, inter alia, for cancellation of removal (cancellation),
pursuant to 8 U.S.C. § 1229b. To be eligible, an alien must
satisfy four statutory requirements. See 8 U.S.C. § 1229b(b). One
requirement is ten years’ continuous physical presence in the
United States (presence requirement). 8 U.S.C. § 1229b(b)(1)(A).
Even if the alien can establish such eligibility, the Attorney
General retains discretion to deny cancellation. See 8 U.S.C. §
1229b(b)(1) (Attorney General “may” cancel removal); Sad v. INS,
246 F.3d 811, 819 (6th Cir. 2001) (“Even if an alien satisfies the
conditions to qualify for relief, the Attorney General retains
discretion to grant or deny the application.”).
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Concerning cancellation, the immigration judge (IJ) ruled that
Mireles-Valdez did not satisfy the presence requirement because his
accepting voluntary departure in 1998 interrupted his continuous
presence; therefore, cancellation was denied. Mireles-Valdez was
ordered removed.
Mireles-Valdez appealed the IJ’s decision to the Board of
Immigration Appeals (BIA). It affirmed in April 2002, without
opinion.
II.
The BIA’s factual findings are reviewed for substantial
evidence, e.g., Lopez de Jesus v. INS, 312 F.3d 155, 158-59 (5th
Cir. 2002); rulings of law, de novo, deferring to the BIA’s
interpretation of the immigration statutes, id. at 158. When, as
in this instance, the BIA affirms without opinion, we review the
IJ’s decision. See Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th
Cir. 2003).
A.
Pursuant to 8 U.S.C. § 1252(a)(2)(B), “no court shall have
jurisdiction to review ... any judgment regarding the granting of
relief under section ... 1229b [cancellation]”. The extent of this
jurisdiction-bar is determined, in part, by the meaning given the
phrase “judgment regarding the granting of relief”.
Both Mireles-Valdez and the Attorney General urge “judgment”
being read to refer to discretionary determinations by the Attorney
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General and his designees. In other words, this would permit
judicial review of nondiscretionary determinations. The parties
further contend that the decision at issue — Mireles-Valdez was not
statutorily eligible for cancellation of removal because he did not
satisfy the presence requirement — is nondiscretionary. This is
consistent with the IJ’s stating that Mireles-Valdez’ “application
for cancellation of removal is denied as a matter of law and not in
the exercise of discretion”. (Emphasis added.)
1.
Because Congress has delegated to the Attorney General
significant responsibility over immigration matters, his
construction of immigration statutes is entitled to considerable
deference. See 8 U.S.C. § 1103(a)(1) (Attorney General “shall be
charged with the administration and enforcement of this chapter [8
U.S.C. §§ 1101-1537] and all other laws relating to the immigration
and naturalization of aliens”; his “determination and ruling ...
with respect to all questions of law shall be controlling”); Amanfi
v. Ashcroft, 328 F.3d 719, 721 (3d Cir. 2003) (Attorney General is
“ultimate authority on interpretations” of the immigration
statutes). This is consistent with our “tak[ing] appropriate
account of the greater immigration-related expertise of the
Executive Branch, of the serious administrative needs and concerns
inherent in the necessarily extensive INS efforts to enforce this
complex statute, and the Nation’s need to ‘speak with one voice’ in
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immigration matters”. Zadvydas v. Davis, 533 U.S. 678, 700 (2001).
Regarding jurisdiction pursuant to § 1252(a)(2)(B), the
Attorney General notes that several circuits have adopted the
position urged here. Montero-Martinez v. Ashcroft, 277 F.3d 1137,
1144 (9th Cir. 2002), also involving a cancellation application,
held: the jurisdiction-stripping provision “eliminates
jurisdiction only over decisions by the BIA that involve the
exercise of discretion”; and the court retained jurisdiction over
the “purely legal and non-discretionary question” in that case.
Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002), concerning the
application of § 1252(a)(2)(B) for discretionary relief other than
cancellation, held: § 1252(a)(2)(B) “only bars review of actual
discretionary decisions to grant or deny relief under the
enumerated sections”, including cancellation. Gonzalez-Oropeza v.
U.S. Attorney General, 321 F.3d 1331, 1332-33 (11th Cir. 2003),
resolved a question of jurisdiction under § 1252(a)(2)(B) by
looking to that circuit’s rulings that a previous statute
“precludes appellate review of discretionary decisions, but does
not preclude review of non-discretionary legal decisions that
pertain to statutory eligibility for discretionary relief” and
applied that distinction in the context of § 1252(a)(2)(B). Most
recently, Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.
2003), reviewed Montero-Martinez and Iddir and held: “We join the
other circuits and conclude that, for nondiscretionary factors, the
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Court maintains jurisdiction, but as to discretionary decisions we
lack jurisdiction”.
Our circuit has considered limitations on our jurisdiction in
the immigration context similar to that in § 1252(a)(2)(B). Moosa
v. INS, 171 F.3d 994 (5th Cir. 1999), which concerned an interim
jurisdictional statute, held: the jurisdictional bar precluded
review of the denial of suspension of deportation (a discretionary
form of relief which was a predecessor to cancellation) when the
denial was explicitly exercised in the IJ’s discretion and would
have been denied even if the alien had met all the statutory
requirements for relief, id. at 1011; and the determination that an
alien was ineligible for suspension of deportation because he
failed to meet the statutory hardship requirement was made in the
IJ’s discretion, thereby precluding our review, id. at 1012. And,
Gonzalez-Torres v. INS, 213 F.3d 899, 901 (5th Cir. 2000), held we
had jurisdiction to review an IJ’s determination that an alien
lacked the seven years’ presence requirement for suspension of
deportation because the “determination is not a matter of agency
discretion, but involves application of the law to factual
determinations”. Similarly, Omagah v. Ashcroft, 288 F.3d 254, 259
(5th Cir. 2002), in the face of a transitional jurisdiction-
stripping rule, held we could review a decision that an alien did
not meet the good moral character requirement for suspension of
deportation “because the statute classifies it as
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nondiscretionary”. In each instance, applying a similar
jurisdiction-stripping bar, we considered whether the decision —
that an alien failed to meet the statutory requirements for relief
or that an alien would not receive relief even if the requirements
were met — was an exercise of discretion.
Finally, Congress is presumed to know the meaning courts have
given its enactments. Concomitantly, it can amend § 1252(a)(2)(B)
should it decide to change the way it is being applied by federal
courts.
In the light of the consistent interpretation given §
1252(a)(2)(B), we hold: its ban on review of “judgment[s]
regarding the granting of relief” precludes review only of
discretionary decisions. Therefore, we must next decide whether
the one at issue is discretionary.
2.
As noted, it was determined that Mireles-Valdez failed the
presence requirement. Again, to be eligible, an alien must
establish he “has been physically present in the United States for
a continuous period of not less than 10 years immediately preceding
the date” of his cancellation application. 8 U.S.C. §
1229b(b)(1)(A). Once again, we give great weight to the Attorney
General’s position that this determination is not discretionary.
Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997), concerning
the transitional immigration rules, held: “Either the petitioner
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has been continuously present in the United States ... or the
petitioner has not”; and the court had jurisdiction to review
decisions based solely on that issue. In Vasquez-Lopez v.
Ashcroft, 343 F.3d 961 (9th Cir. 2003), concerning the permanent
rules at issue here and without discussing the basis for
jurisdiction, the same court exercised jurisdiction over a
challenge to the BIA’s application of the presence requirement. As
discussed above, under transitional jurisdiction rules, we held in
Gonzalez-Torres, 213 F.3d at 901, that we could review a denial of
discretionary relief based on a failure to establish continuous
presence.
Therefore, we hold: whether an alien satisfies the continuous
presence requirement is a nondiscretionary determination because it
involves straightforward statutory interpretation and application
of law to fact. Accordingly, we have jurisdiction to review
whether Mireles-Valdez was ineligible for cancellation because he
lacked the required continuous presence.
This holding does not conflict with our recent decision in
Bravo v. Ashcroft, 341 F.3d 590, 593 (5th Cir. 2003), that federal
courts lack jurisdiction over a habeas challenge to an IJ’s
determination that aliens were ineligible for cancellation because
they could not satisfy the exceptional and extremely unusual
hardship requirement. First, Bravo’s holding concerning habeas
jurisdiction does not control our jurisdiction for a petition for
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review. Second, as noted, Bravo concerned cancellation eligibility
pursuant to the hardship requirement; that is quite different from
the presence requirement at issue here.
B.
1.
The parties agree that Mireles-Valdez’ first of two departures
(absent for 14 days) did not interrupt his continuous presence.
This is not inconsistent with § 1229b(d)(2)’s providing that being
absent for any single period of more than 90 days, or any aggregate
period of more than 180 days, automatically interrupts continuous
presence. 8 U.S.C. § 1229b(d)(2).
We will assume, as the parties appear to, that § 1229b(d)(2)
provides by implication that absences shorter than those listed do
not automatically interrupt continuous presence. On the other
hand, the statute does not create the implication that all absences
of less than the 90/180 day periods are not such an interruption.
See In re Romalez-Alcaide, 23 I. & N. Dec. 423, 426 (2002) (“The
objective command that departures of certain lengths ‘shall’ break
continuous physical presence implies that shorter departures are
acceptable, but it does not specifically exempt all such shorter
departures.”)
At issue is the effect of Mireles-Valdez’ second departure —
when he voluntarily departed the United States under threat of
immigration proceedings (voluntary departure). The Attorney
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General asserts that, for cancellation purposes, the continuous
presence then came to an end. If this is correct, Mireles-Valdez’
continuous presence began anew when he illegally entered the United
States the day after his voluntary departure, so that his required
ten years’ continuous presence did not begin until 1998.
Mireles-Valdez claims his voluntary departure did not
interrupt his continuous presence; that, for cancellation purposes,
he has been in the United States since 1973. In support, he points
to 8 U.S.C. § 1229b(d), entitled “Special rules relating to
continuous residence or physical presence”. He contends: §
1229b(d), subparts (1) and (2), provide the exclusive means by
which continuous presence is terminated; and in enacting these
subparts in 1996, Congress repealed prior law, upon which the IJ
relied in this instance — that voluntary departure interrupts
continuous presence.
Section 1229b(d)(1) provides that continuous presence “shall
be deemed to end” in several circumstances, including most
instances in which a Notice to Appear is served, as referenced
infra, and for certain offenses. It does not state that these are
the only circumstances in which continuous presence “shall be
deemed to end”. In fact, subpart (d)(1) cannot be exhaustive
because, as discussed supra, subpart (d)(2) provides that certain
absences, on the basis of their length, terminate continuous
presence.
10
The statute at issue does not state that its provisions are
exhaustive. The Attorney General has determined that they are not.
For the reasons discussed earlier, we defer to the Attorney
General’s interpretation, discussed below. See Wilson v. INS, 43
F.3d 211, 213 (5th Cir.), cert. denied 516 U.S. 811 (1995).
For the decision at issue, in prior rule making, and in a
decision shortly after the BIA’s decision in this instance, the
Attorney General has determined that the current version of §
1229b(d) did not repeal prior law under which voluntary departure
interrupted continuous presence. For the instant matter, the IJ
relied on the obvious and compelling fact that voluntary departure,
with its attendant understanding that the alien will cease his
illegal presence, is inconsistent with continuous presence.
Subsequent to the commencement of the administrative
proceedings here, but prior to their resolution, the Attorney
General, through a published regulation, clarified voluntary
departure’s effect on continuous presence. In June 1999, the
Attorney General issued 8 C.F.R. § 240.64(b)(3); it provides: at
least for persons applying for “special rule cancellation of
removal” under the Nicaraguan Adjustment and Central American
Relief Act, Pub. L. No. 105-100, 111 Stat. 2160 (1997), “a period
of continuous physical presence is terminated whenever ... the
alien has voluntarily departed under the threat of deportation”.
11
For the instant matter, the BIA ruled in April 2002. The next
month, it decided in the earlier-cited In re Romalez-Alcaide, 23 I.
& N. Dec. 423 (2002), that voluntary departure under threat of
deportation interrupted continuous presence for cancellation
purposes.
In these instances, the Attorney General has determined that
voluntary departure in circumstances such as these interrupts
continuous presence. This conclusion is reasonable. Again,
voluntary departure, whether offered at the end of immigration
proceedings or earlier at the border (as in this instance), is
granted an alien as a form of clemency in return for his agreeing
to relinquish his illegal presence. Voluntary departure is
“pursuant to an agreement between [the illegal alien] and the
Attorney General under which [the illegal alien] agreed to depart
and not to return other than in accordance with the entry process
applicable to all aliens”. Vasquez-Lopez, 343 F.3d at 974. When
the Attorney General grants voluntary departure, the alien cannot
later claim that he did so while continuing his continuous presence
for use in a future adjudication for discretionary relief.
In Vasquez-Lopez, the Ninth Circuit addressed the effect of
voluntary departure, granted at the end of immigration proceedings,
on continuous presence for cancellation purposes. There, the grant
of voluntary departure necessarily followed the issuance of a
Notice to Appear; here, the voluntary departure was at the border.
12
Nevertheless, we agree with Vasquez-Lopez that the 1996 amendments
do not require the Attorney General to conclude that, for
cancellation purposes, voluntary departure does not interrupt
continuous presence.
2.
Mireles-Valdez also appears to claim a denial of due process
because voluntary departure was offered, and accepted, without his
being warned about its consequences. “Eligibility for
discretionary relief from a removal order is not ‘a liberty or
property interest warranting due process protection’....” United
States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003).
III.
For the foregoing reasons, the petition is
DENIED.
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