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Media Alerts - Garcia v. Holder - Fourth Circuit
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November 11, 2013
  Garcia v. Holder - Fourth Circuit
Headline: One Week Funeral Trip to Mexico Ends in Termination of Alien's Continuous Physical Presence in U.S. Despite Over 10 Years of Residency

Area of Law: Immigration

Issues Presented: 1) Whether the Board of Immigration Appeals' decisions conflict with the text of 8 U.S.C. § 1229b; 2) Whether the Board of Immigration Appeals erred in determining Garcia had a formal, documented process when he voluntarily returned to Mexico.

Brief Summary: Baltazar Olea Garcia is a native and citizen of Mexico. In 1995, he entered the U.S. illegally. In 2001, he returned to Mexico to attend his father's funeral. When he returned a week later, he was stopped at the border, photographed and fingerprinted. He returned voluntarily to Mexico, but reentered the U.S. undetected several days later. In 2009, the Department of Homeland Security initiated removal proceedings, and Garcia filed an application for cancellation of removal under 8 U.S.C. § 1229b. On appeal, the Fourth Circuit held that although the statute provides for the treatment of breaks in presence that result in a termination of continuous presence, the BIA is not limited by the specific circumstances in the statute. The Fourth Circuit also found that Garcia was subjected to a formal process when he was stopped at the border in 2001 before voluntarily returning to Mexico. The Fourth Circuit affirmed the denial of Garcia's application, finding that he could not prove he had been present in the U.S. for a continuous period of ten years.

Extended Summary: Baltazar Olea Garcia, a native and citizen of Mexico, entered the United States illegally in 1995. Six years later, Garcia returned to Mexico to attend his father's funeral. When he returned to the United States one week later, Immigration and Naturalization Services ("INS") officers detained him at the border and took his fingerprints and photograph. According to Garcia, the officers told him "that I could sign a voluntary departure deportation paper or have a lawyer and see an immigration judge." Garcia declined to see an immigration judge and instead returned to Mexico voluntarily. There was no evidence whether he signed any paperwork. Several days later Garcia reentered the U.S. undetected. In 2009, the Department of Homeland Security ("DHS") initiated removal proceedings against Garcia. He conceded removability but filed an application for cancellation of removal under 8 U.S.C. § 1229b.

To succeed in cancellation, Garcia had to prove that he had been physically present in the U.S. for a continuous period of at least ten years prior to the filing of removal proceedings. The statute provides that an alien has not maintained continuous physical presence in the U.S. if they departed for more than 90 days at a time, or for more than 180 days total. In addition, the Board of Immigration Appeals ("BIA") has held that continuous physical presence terminates when an alien voluntarily departs the U.S. under threat of removal, as long as there is a formal, documented process. The question in Garcia's case, therefore, was whether the length of his absence from the country was sufficient, and whether he had a formal documented process before his voluntary departure in 2001.

The immigration judge found that Garcia was ineligible for cancellation of removal, and the BIA affirmed the decision. Under the BIA's interpretation, Garcia's voluntary departure under threat of removal was enough to establish a break in continuous presence, regardless of the length of time he was outside of the U.S. Garcia appealed, petitioning for cancellation of removal pursuant to 8 U.S.C. § 1229b. On appeal, Garcia argued that BIA precedent conflicts with the statutory language on the treatment of breaks in presence.

The Fourth Circuit found that although § 1229b(d)(2) specifies that certain breaks in presence render an alien ineligible for cancellation of removal, those breaks do not constitute an exhaustive list of every circumstance that terminates an alien's continuous physical presence. The statute did not establish, therefore, that a break in presence could only be established if an alien departs for more than ninety days. Garcia's departure, under the threat of removal, was thus sufficient to establish a break in presence even though it was not explicitly covered in the statute. The Fourth Circuit upheld the BIA's interpretation of the statute to include removals under other circumstances. The court also noted that all other Courts of Appeal had considered this interpretation to be reasonable.

The Fourth Circuit also rejected Garcia's argument that he was not subjected to a formal, documented process when he returned to Mexico voluntarily, and therefore did not end his continuous physical presence in the U.S. Based on the evidence, the court found that Garcia was informed he could voluntarily return to Mexico or have a judge determine his status, and that the proceeding was documented with a photograph and fingerprints. Thus, the court held that a formal, documented process occurred and that Garcia was ineligible for cancellation of removal because he could not prove he had been continuously present in the U.S. for the preceding ten years.

To read the full opinion, please visit: http://www.ca4.uscourts.gov/Op...ublished/122259.P.pdf

Panel: Judges Wilkinson, Motz, and Floyd

Argument Date: 09/18/13

Date of Issued Opinion: 10/16/13

Docket Number: 12-2259

Decided: Petition for review denied.

Case Alert Author: Megan E. Ix

Counsel: ARGUED: Jeremy Layne McKinney, MCKINNEY PERRY & COALTER, Greensboro, North Carolina, for Petitioner. Brendan Paul Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Motz, J.

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/11/2013 08:32 PM     4th Circuit  

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