Matter of Romalez-Alcaide: BIA Rules "Continuous Physical Presence" for Purposes of Non-LPR Cancellation Is Terminated by a Voluntary Departure

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

MATTER OF ROMALEZ-ALCAIDE: BIA RULES "CONTINUOUS PHYSICAL PRESENCE" FOR PURPOSES OF NON-LPR CANCELLATION IS TERMINATED BY A VOLUNTARY DEPARTURE
Immigrants' Rights Update, Web Edition, July 15, 2002

The Board of Immigration Appeals has issued an en banc precedent decision finding that a voluntary departure "under threat of deportation" ends the accrual of "continuous physical presence" that non-lawful permanent resident applicants for cancellation of removal must show to qualify for the relief. Under section 240A(b) of the Immigration and Nationality Act, applicants for cancellation must establish that they have been continuously physically present in the United States for at least ten years. They must also show that they have good moral character and that their removal would cause exceptional and extremely unusual hardship to a U.S. citizen or LPR parent, spouse, or child.

The respondent in this case, a Mr. Romalez-Alcaide, is a Mexican national who entered the U.S. in 1984. On two occasions, in 1993 and 1994, he accepted voluntary departure to avoid having deportation proceedings initiated against him. In both cases, he returned to the U.S. within a day or two of the departure. In 1997 the Immigration and Naturalization Service served Romalez-Alcaide with a Notice to Appear, initiating removal proceedings. At his hearing, Romalez-Alcaide applied for cancellation of removal and voluntary departure. The immigration judge found that he was not eligible for cancellation because he met neither the ten-year continuous physical presence nor the hardship requirement. The IJ granted the request for voluntary departure, and Romalez-Alcaide appealed the denial of cancellation.

On appeal, the BIA noted that whether the respondent satisfied the ten-year requirement depends upon whether his voluntary departures ended his accrual of continuous physical presence. The respondent contended that under INA section 240A(d)(2), which sets forth rules for calculating continuous physical presence for purposes of cancellation, his brief departures should not be considered to interrupt continuous physical presence. Section 240A(d)(2) provides that an applicant is considered to have failed to maintain continuous physical presence if he or she departs the country "for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days."

However, a majority of the BIA concluded that continuous physical presence for purposes of cancellation can be ended by departures of shorter duration than those described in section 240A(d)(2). The BIA noted that under the "brief, casual, and innocent" standard that is used to determine whether a departure ends continuous physical presence in suspension of deportation cases, a voluntary departure under threat of deportation of any length is considered to break continuous presence. The majority could find nothing in the legislative history of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which created removal proceedings, to explain why Congress did not include the "brief, casual, and innocent" standard for cancellation of removal. Nonetheless, it concluded that Congress must have intended for voluntary departures under threat of deportation to break continuous physical presence.

The majority also based its ruling on the regulations issued by the attorney general to implement "special rule" cancellation under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA). Available to certain Salvadorans, Guatemalans, and nationals of the former Soviet bloc, special rule cancellation is a form of relief that provides for more generous eligibility standards than regular cancellation of removal. The NACARA regulations provide that, in addition to departures longer than 90 days or in the aggregate longer than 180 days, departures under threat of deportation break continuous physical presence. 8 C.F.R. § 240.64(d). The majority reasoned that, since the attorney general considered such absences (i.e., resulting from departure under threat of deportation and lasting less than 90 days) to break continuous physical presence for purposes of a more generous form of cancellation, the restriction must also apply to regular cancellation of removal. The BIA therefore denied the appeal.

Board Member Pauley issued a concurrence, stating that as a BIA member he is constrained to follow the attorney general's regulations but that the regulations appear to conflict with the statute. Board Member Rosenberg, joined by Member Espenoza, issued a dissent. They argued that the NACARA regulations for special rule cancellation of removal do not apply to this case, and that the statute sets forth an objective standard for measuring whether departures break continuous physical presence.

Because Romalez-Alcaide did not meet the continuous physical presence requirement, the BIA did not reach the issue of his appeal regarding the hardship requirement for cancellation.

Matter of Romalez-Alcaide, 23 I&N Dec. 423, Int. Dec. 3475 (BIA May 29, 2002).