Thursday, November 03, 2005

Mendez-Reyes: Withdrawing Attempt To Enter US Breaks Physical Presence For Cancellation

Filed 11/01/05, No. 04-4522
Mendez-Reyes v. Atty Gen USAMendez-Reyes v. Gonzales

In a ruling that does not appear evidently correct upon first glance, the Third Circuit ruled that cancellation of removal is not available to anyone who withdrew their attempt to enter the U.S. anytime in the previous ten years.

Cancellation of removal for someone who does not have legal permanent resident status (green card status) requires having continuous physical presence in the US for the prior ten years along with several other details that are difficult to prove (the hardest is the controversially difficult "exceptional and extremely unusual hardship to a close relative"). This case focused only on the ten year physical presence requirement.

In this case, within the prior ten years the immigrant left the US and upon returning, at Newark airport the border officials allowed him to enter but told him he had to report back again for secondary inspection, a second-layer of inspection, before they would officially decide whether they would let him back in the US. The immigrant came into the US and showed up as requested for the secondary inspection appointment. At that time, he told the border officials he was withdrawing his application to enter the US and willing to travel abroad immediately. They agreed and he left. Does unilaterally leaving the US break continuous physical presence?

Let's turn to the statute on when physical presence is broken: it lists only two ways that physical presence is definitely broken -- if the government starts a removal case to seek what is essentially deportation or if the immigrant leaves for 90 consecutive days (or a total of 180 days even if they are non-consecutive).

Are there any other ways continual physical presence can be broken? Nothing else is listed in the statute. Yet the BIA (Board of Immigration Appeals) said unwritten other ways exist, such as if the immigrant leaves by accepting "voluntary departure" under the threat of deportation. Is the BIA's invention legitimate or is it a rule that has no basis in the statute? The Third Circuit said the BIA's invention is valid because it felt the list of two ways that continual physical presence can be broken was a non-exhaustive list so that the BIA could invent the rule because it seemed to match what Congress intended. The idea is that Congress wanted to punish anyone deported so why not extend the rule to those who leave under an official agreement knowing that without taking the agreement, it is guaranteed they would be deported and there would be deportation proceedings.

Other circuit courts agree that the BIA's invented rule is acceptable.

That rule, though, does not necessarily cover this case. Why is stating someone wants to leave immediately and withdraw the attempt to enter the country after spending a few weeks in the US before secondary inspection considered the same thing as accepting voluntary departure mere moments before the government commences a deportation case? Announcing that you've changed your mind and want to leave is a unilateral action, not something that the person coughs up mere moments before a guaranteed deportation case.

The Third Circuit relied too heavily on two extremely minor details -- you can only unilaterally withdraw your application is the Attorney General agrees and in doing so, you agree that the withdrawal replaces any formal determination concerning whether you legally were admissible into the country. But the Third Circuit goes astray by saying these two minor details mean the unilateral announcement of wanting to withdraw his application was done under threat of deportation and the unwritten idea that a deportation case was about to begin.

In fact, the whole idea of secondary inspection is that the government is not sure whether it wants to start a deportation case. So it is not a threat of deportation except in the metaphysical sense that anyone talking to anyone in immigration has a vague threat of deportation. Walking down the street where an immigration officer is drinking a cup of coffee entails only the faintest threat of deportation but the threat exists in the same metaphysical sense.

Also, an agreement "in lieu of a formal determination concerning my admissibility" is not the type of language that means a deportation case was inevitable. In fact, what is more likely referred to is a formal determination by the front-line staff officer in secondary inspection. The BIA's rule does not break continuous physical presence for showing up in secondary inspection. It requires something less certain to happen, an official deportation case.

This decision is open for criticism for another reason -- the US Supreme Court in the Leocal decision said plain language meanings should be read into the law, not convoluted alternate meanings of simple words in different contexts. Here, the "threat" of deportation should be read in line with how "threats" are read in other areas of the law, such as criminal laws that punish physical threats. According to the sixth edition of Black's Law Dictionary, a threat is a communicated intent to inflict some type of harm. No such threat existed in this case. DHS never stated that it intended to start a deportation case against the immigrant. All it said was that it wanted to inquire further at a seconday inspection. It wasn't like they finished reviewing him and told him they intended to start the deportation case unless he accepted voluntary departure.

Here's hoping the immigrant sacrifices his precious time and money by getting the U.S. Supreme Court to correct the Third Circuit, the Attorney General, the Board of Immigration Appeals, and the immigration judge. And to imagine that the judges ruled this way despite being, in a metaphysical sense, under a so-called threat of impeachment, threat of being overturned, and a threat of being investigated for ethical violations.


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