New BIA Decision on Continuous Physical Presence and Cancellation (2): Matter of Garcia-Ramirez

Written by Alexander J. Segal on

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Introduction: Matter of Garcia-Ramirez

On October 28, 2015, the Board of Immigration Appeals (BIA) decided two important cases pertaining to the 10-year continuous physical presence requirement for eligibility for regular non-LPR cancellation of removal.1 Specifically, the cases addressed when a voluntary return at the border after being stopped by border authorities constitutes a break in physical presence. This blog post will discuss the BIA's decision in Matter of Garcia-Ramirez [PDF version].2 Because the other case, Matter of Castrejon-Colino [PDF version], is cited by Matter of Garcia-Ramirez [PDF version], I encourage you to read my blog post on that case before you read this post.3

In Matter of Garcia-Ramirez [PDF version], the BIA addressed whether an alien had his continuous physical presence (for cancellation of removal purposes) broken when he was picked up near the Mexican border and briefly detained before voluntarily returning to Mexico. The key question was whether that was sufficient to constitute a break in continuous physical presence. Specifically, the BIA addressed whether the facts in the record supported that the process at the border in this case was of “sufficient formality” in order to broke the alien's continuous physical presence for eligibility for cancellation of removal.

After reviewing the facts of this specific case, an Immigration Judge found that the alien in this case (henceforth “the respondent”) could not apply for cancellation of removal because his continuous physical presence had been broken by his voluntary return to Mexico from the border. The respondent appealed to the BIA. After reviewing the case on appeal, the BIA determined that the evidence on record did not establish that the respondent's return broke his continuous physical presence. Accordingly, the BIA sustained the appeal and remanded the case back to the Immigration Judge for further proceedings consistent with the BIA's decision.

In this blog post, I will explain the facts of the case, the issues at hand and how the BIA analyzed them, and what the decision means going forward.

Facts of the Case

The respondent first entered the United States without inspection on January 22, 1999. The Department of Homeland Security (DHS) submitted evidence that the respondent had been apprehended several times at or near the border and was returned to Mexico each time. During each encounter, he was photographed, although it was not clear that he was fingerprinted.

The respondent stated that he had only made two departures since entering the United States, one of which was on December 7, 2002. On May 7, 2012, the respondent was served with a notice to appear (NTA). Because the 10-years of continuous physical presence are required prior to the serving of the NTA in order for an alien to be eligible for non-LPR cancellation of removal, the respondent would be ineligible to apply for cancellation of removal of that departure was found to constitute a break in continuous physical presence.

The respondent argued that the encounter at the border, followed by his voluntary return, did not constitute a break in his continuous physical presence because he had not been provided with any documents informing him of his legal rights or of his opportunity to appear before an Immigration Judge. As a result, the respondent argued that he did not knowingly agree to return to Mexico under the threat of removal proceedings, and therefore, his continuous physical presence was not broken by the voluntary return.

Issues and the BIA's Analysis

The BIA sought to address whether the respondent being returned to Mexico after being photographed and possibly fingerprinted at the border, but not indicating that he was advised of his right to appear before an immigration judge, is a “formal, documented process” as required by the BIA in Matter of Avilez [PDF version] sufficient to break the requisite continuous physical presence for cancellation of removal eligibility.4

In Matter of Avilez [PDF version], the BIA held that an Immigration Official's refusal to admit an alien at a land border port of entry will not break continuous physical presence unless there is evidence that the alien:

  • was formally excluded or made subject to an order of expedited removal;
  • was offered and accepted the opportunity to withdraw his or her application for admission; or
  • was subjected to any other formal, documented process under which the alien was determined to be inadmissible to the United States.

I emblodened third point in bold because that is the only one of the three issues at question in Matter of Garcia-Ramirez [PDF version].

The BIA cited in Matter of Garcia-Ramirez [PDF version] the types of evidence it listed in Matter of Avilez [PDF version] that may indicate a “formal, documented process” that would be sufficient, in conjunction with a voluntary return, to break continuous physical presence:

  • Testimony of documentary evidence of a legally enforced refusal of admission and return such as a Record of Deportable/Inadmissible Alien (Form I-213);
  • A Notice of Action-Voluntary Departure (Form I-210);
  • An IDENT printout, affidavits, or statements of the alien or immigration officials, photographs, fingerprints, or other appropriate forms and official records of DHS.

In Matter of Garcia-Ramirez [PDF version], the BIA stated that while it had included “photographs and fingerprints” as possible components of such a process, that photographing and fingerprinting alone are not sufficient under Matter of Avilez [PDF version] without evidence that the photographing and fingerprinting were associated with a legally enforced refusal of admission and return.5 In effect, the BIA held that the photographing and fingerprinting in this scenario is insufficient to break continuous physical presence without evidence that the alien was informed of his or her right to a hearing and waived that right in order to voluntary depart.

The Decision

The BIA sustained the respondent's appeal because it disagreed with the Immigration Judge that the evidence on record supported the conclusion that the respondent's continuous physical presence had been broken by his return to Mexico in 2002. Rather, the BIA found that the record was unclear about certain facts of the 2002 incident. Accordingly, the BIA remanded the case back to the Immigration Judge in order for the Immigration Judge to take further testimony regarding the circumstances surrounding the respondent's 2002 departure. Furthermore, the BIA instructed the Immigration Judge to assess whether the respondent is otherwise eligible for cancellation of removal if further testimony does not support that continuous physical presence was broken.

The BIA cited its decision Matter of Cartrejon-Colino [PDF version] in noting that while the applicant for cancellation of removal ultimately bears the burden of demonstrating eligibility, including continuous physical presence; DHS is in a far better position to fill gaps in evidence and resolve disputes with documentation in its records to show that the process at the border had sufficient formality to server continuous physical presence.

My Analysis

Taken together with Matter of Castrejon-Colino [PDF version], Matter of Garcia-Ramirez [PDF version] clarifies the BIA precedent from Matter of Avilez [PDF version] regarding when an encounter and voluntary return at the border breaks continuous physical presence. In a sense, even though the applicant for cancellation must demonstrate his or her eligibility, these decisions place a burden upon the government to properly document an encounter to show sufficient formality in order to break continuous physical presence.

However, it is important to remember that each case is fact-specific. While these decisions may allow certain applicants for cancellation to argue that they meet the continuous physical presence requirement, neither of these decisions change the underlying rules regarding eligibility for cancellation of removal. An encounter at the border will always be potentially fatal to continuous physical presence for cancellation of removal eligibility. An alien who is either applying for cancellation of removal or has general concerns about continuous physical presence should consult with an experienced immigration attorney for guidance.

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  1. INA § 240A(b)(1)(A)
  2. Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015)
  3. Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015)
  4. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005)
  5. Citing Matter of Castrejoin-Colino