Advertisement

April 24, 2014

Mendez-Reyes, Demandstein, & Chevron: Withdrawing Chances Of Obtaining Cancellation Of Removal In The Third Circuit For Some Aliens

I.      Introduction

Traveling internationally can be a stressful and complicated experience, especially if the destination country has as much border security as the United States.[i]  Particularly in recent years, since the September 11th terrorist attacks, Customs and Border Protection has seriously cracked down on securing the United States borders.[ii]  Specific documentation is required for entry into the United States and lack of or flawed documentation will prevent an alien from being admitted to the country.[iii]

Many aliens who are deemed inadmissible by a customs officer are permitted to withdraw their application for admission to the United States, and immediately return to their home country.[iv]  This process requires aliens to sign a document stating the reasons that they are deemed inadmissible, and that they are withdrawing their application for admission in lieu of a formal determination of admissibility.[v]  Although aliens in this situation may feel that they have no preferable alternative to withdrawing their application for admission and returning to their home country to attempt to remedy the situation if possible, the consequences of signing such a document are now more significant.[vi]  Specifically, the Third Circuit has held, and re-affirmed, that withdrawing an application for admission constitutes a sort of formal severing of ties between the alien and the United States, such that it affects the availability of future immigration-related relief that an alien might seek.[vii]  Consequently, such an event is now deemed to cause a break in the ten years of continuous physical presence within the United States that is required of some aliens for “cancellation of removal,” a type of relief granted to aliens in removal proceedings.[viii]

This Casebrief offers a critical analysis of the development of the Third Circuit case law regarding continuous physical presence.[ix]  Section II summarizes the applicable statutory provisions.[x]  Section III discusses and analyzes Mendez-Reyes v. Attorney General[xi], the seminal case in which the Third Circuit first addressed this issue, and laid down foundational reasoning.[xii]  Section IV discusses Demandstein v. Attorney General[xiii], which is the most recent Third Circuit case to address and re-affirm the holding from Mendez-Reyes.[xiv]  Finally, Section V explores possible future expansions.[xv]

II.    Applicable Statutory Provisions

There are two types of cancellation of removal--one that is available only for lawful permanent residents [hereinafter “LPR”s], and one that is available for any other alien who does not meet the requirements for the first type.[xvi]  This Casebrief deals only with cancellation of the second type [hereinafter “non-LPR cancellation”].[xvii] The statutory requirements for non-LPR cancellation are: (1) at least ten years of continuous physical presence immediately prior to applying for the relief, (2) good moral character, (3) an absence of convictions for various applicable offenses, and (4) a demonstration that removal of the alien would result in “exceptional and extremely unusual hardship” to a citizen or LPR spouse, child, or parent of the alien.[xviii]

This Casebrief focuses on the requirement of ten years of continuous physical presence for non-LPR cancellation of removal.[xix]  Some additional statutory language helps to shape this requirement.[xx]  First, the statute announces that continuous physical presence terminates upon either of two events: (1) the alien is served with a Notice to Appear, or (2) the alien commits an offense that would render him removable or inadmissible.[xxi]  Second, the statute states that certain departures from the United States, depending on the length of absence, will terminate continuous physical presence.[xxii]  Specifically, the statutory provision, entitled “Treatment of certain breaks in presence,” states that absences in excess of either 90 days at a time, or 180 days in the aggregate, will terminate continuous physical presence.[xxiii]

III.  Mendez-Reyes Mends and Revives a Qualitative Standard

The Third Circuit, in Mendez-Reyes, first held that withdrawal of an application for admission terminates continuous physical presence.[xxiv]  The court’s recent decision in Demandstein cited Mendez-Reyes and re-affirmed its holding.[xxv]  The Mendez-Reyes opinion is important because, rather than duplicate the reasoning therein, the Demandstein court summarily cited to Mendez-Reyes as precedent.[xxvi]  Thus, this section will discuss the reasoning from Mendez-Reyes in order to understand and analyze the way Demandstein refines it, and in an effort to explore potential expansions.[xxvii]

A.  Introduction to Mendez-Reyes

In Mendez-Reyes, the Third Circuit held that withdrawing an application for admission to the United States, in lieu of a determination of admission, terminates continuous physical presence for purposes of non-LPR cancellation of removal.[xxviii]  The Board of Immigration Appeals (“B.I.A.”) had held in a separate prior case that voluntary departure under threat of removal terminates continuous physical presence.[xxix]  The Immigration Judge (“IJ”) applied this B.I.A. precedent to the facts in Mendez-Reyes to find that withdrawal of an application for admission likewise terminates continuous physical presence.[xxx]  The Third Circuit, on review of the IJ’s decision (due to summary affirmance by the B.I.A.), employed the Chevron[xxxi] doctrine to uphold the B.I.A.’s previous interpretation of the statute as well as the IJ’s application and expansion of that interpretation.[xxxii]

Under the Chevron doctrine for judicial review of agency interpretations of statutes, a court must conduct a two-prong analysis.[xxxiii]  First, the court must determine if the statutory language is ambiguous.[xxxiv]  If the statutory language is clear, then the court “must give effect to the unambiguously expressed intent of Congress,” whether or not that intent is consistent with the interpretation of the agency.[xxxv]  The second step is only reached if the statutory language is ambiguous, and it requires that a court determine whether the agency’s interpretation is reasonable or permissible.[xxxvi]  If so, the court must defer to that reasonable agency interpretation.[xxxvii]

In Mendez-Reyes, the court found that the statutory language was silent regarding whether or not the conditions listed therein, which terminate continuous physical presence, are exhaustive.[xxxviii]  The court reasoned that by listing conditions that must have the effect of terminating continuous physical presence, Congress did not necessarily exclude the possibility that other conditions may have the same effect.[xxxix]

Having thus determined that the statute is silent regarding the issue, the court proceeded to Chevron step two and found the B.I.A.’s interpretation reasonable or permissible.[xl]  The court provided various reasons for this finding: (a) Congress has delegated broad power to the Attorney General over immigration matters; (b) removal orders, or relief granted in lieu of such orders such as voluntary departure, are intended to end an alien’s presence within the United States; (c) an alien who is formally removed, or granted relief such as voluntary departure in lieu of such formal determination of removability, should not retain any legitimate expectations of being able to return and resume continuous physical presence; (d) the agency interpretation was consistent with congressional intent; and (e) every other circuit court to decide the issue has found the agency interpretation permissible.[xli]  Thus finding the statutory language ambiguous, the B.I.A. interpretation reasonable, and no error in the IJ’s application of the B.I.A. interpretation, the court upheld the IJ’s decision.[xlii]

B.  Analysis of the Mendez-Reyes’s Court’s Reasoning

This section will provide a critical analysis of the reasoning provided by the Mendez-Reyes court.[xliii]  First, there will be an analysis of the court’s Chevron step one determination that the statutory language is ambiguous.[xliv]  Second, there will be an analysis of the court’s Chevron step two determination that the agency’s interpretation of the statute was reasonable or permissible.[xlv]

1.  Silence and Ambiguity

In Mendez-Reyes, the court found that the statute’s silence regarding whether its list of conditions terminating continuous physical presence is exhaustive has the same effect as statutory ambiguity.[xlvi]  Although Chevron equated silence with ambiguity, later cases both in the Supreme Court and lower courts have demonstrated that this issue has not been definitively resolved.[xlvii]  An argument could be made that the statute here was unambiguous and undeserving of Chevron deference.[xlviii]  The court’s finding that the statutory language is not exhaustive is at least questionable, in light of Congress’s habit of using the term “including” to indicate non-exhaustive conditions, and the absence of any congressional practice of explicitly indicating that every other provision is exhaustive.[xlix]  At the very least, the Mendez-Reyes court would have been wise to approach the issue with more caution, as the Supreme Court has not clearly settled treatment of statutory silence in the context of Chevron deference.[l]  Also, it is especially important to be cautious with respect to the issue here, as the ultimate determination and its associated effect on eligibility for cancellation of removal will result in either deportation or legalization for affected aliens.[li]

2.  Reasonableness and Permissibility

The Mendez-Reyes court found the agency interpretation reasonable due to several factors, as noted above.[lii]  This section will assess each of those bases for finding the agency interpretation reasonable or permissible.[liii]  In particular, this section will assess each of these grounds as applied by the IJ to withdrawal of an application for admission, although the underlying B.I.A. reasoning was developed in the context of voluntary departure.[liv]

a.  Broad Delegation Over Immigration Matters

The Mendez-Reyes court expressed hesitance towards finding the agency interpretation unreasonable, in light of the broad authority that Congress has delegated to the Attorney General in the immigration context.[lv]  However, the delegation issue is more appropriately addressed as a preliminary question, and ordinarily has no bearing on the question of reasonableness.[lvi]  There is no necessary connection between the breadth of delegation and the reasonableness of an interpretation.[lvii]  In fact, an agency that has not been delegated the relevant authority is not even eligible for Chevron deference.[lviii]  While it is true that the Judicial Branch has a habit of extending deference to the Executive Branch in immigration matters, this fact alone does not provide sufficient support for judicial deference.[lix]

b.  The Purposes of Removal

The Mendez-Reyes court also found the agency interpretation to be reasonable based on the purpose underlying any formal means of removal.[lx]  Specifically, the court cited the Ninth Circuit’s reasoning that removal of an alien, or voluntary departure in the alternative, is meant to sever the alien’s ties with the United States.[lxi]  Furthermore, the court cited the Ninth Circuit’s likening of voluntary departure with a plea bargain, reasoning that such relief is granted in exchange for the promise to depart from the United States.[lxii]  While severing ties may be the purpose of removal or voluntary departure, withdrawal of an application for admission is not necessarily intended to serve the same purpose.[lxiii]

It is reasonable to characterize voluntary departure as severing ties between the alien and the United States, as the alien must concede removability to obtain voluntary departure.[lxiv]  An alien who is removable will almost always be inadmissible as well, and thus cannot immediately return to the United States.[lxv]  An alien withdraws an application for admission, however, in the context of seeking admission.[lxvi]  The alien need not concede anything, and there do not necessarily exist any ties to be severed.[lxvii]  The statute itself distinguishes between voluntary departure and withdrawal of an application for admission, clarifying that voluntary departure is not available for arriving aliens and that no provisions regarding voluntary departure affect the availability of withdrawal of an application for admission.[lxviii]

c.  The Legitimate Expectations of Aliens

The Mendez-Reyes court also accepted the reasoning that an alien who is removed, or obtains voluntary departure in the alternative, cannot retain a legitimate expectation of being able to return to the country and resume continuous physical presence.[lxix]  This reasoning, however, is not equally applicable to withdrawal of an application for admission.[lxx]  In Demandstein, for example, the court noted that the alien’s attorney had advised him that he could return to his home country and re-apply for a visa.[lxxi]  Indeed, there are situations where an alien can properly remedy his situation and become admissible.[lxxii]  Thus, it is not unreasonable for many aliens who withdraw an application for admission to retain a legitimate expectation of being able to return to the United States.[lxxiii]  It would be extremely unusual, however, for an alien who is removable to be nonetheless admissible.[lxxiv]

Imagine, for example, an alien who is coming to the United States with an “L” non-immigrant visa.[lxxv]  Although such an alien is coming as a non-immigrant, he is probably also eligible for LPR status as a “priority worker,” because of the similarity in the requirements for an L non-immigrant visa and a priority worker immigrant visa.[lxxvi]  An alien in this position can adjust his status to that of an LPR while in the United States, even if he entered with an L visa.[lxxvii]  Thus, the alien might have a legitimate expectation to remain in the United States permanently, yet be denied entry because the alien was unaware that his passport has expired.[lxxviii]  If the alien withdraws his application for admission, returns to his home country to renew his passport, and returns to the United States, the Third Circuit would consider this to be a formal severing of ties between the alien and the United States and would find that the alien had no legitimate expectation to return.[lxxix]

d.  Congressional Intent

The Mendez-Reyes court accepted the B.I.A.’s reasoning that allowing continuous physical presence to continue after removal or voluntary departure would be inconsistent with Congress’s purpose of deterring illegal immigration.[lxxx]  However, “[n]o legislation pursues its purposes at all costs.”[lxxxi]  Moreover, construing non-LPR cancellation of removal through the lens of deterring illegal immigration is inconsistent with Congress’s clear choice to create this second category of cancellation and leave it open to undocumented aliens, including those who entered without inspection, as one of the only means for them to obtain lawful immigrant status.[lxxxii]  Also, it seems quite unlikely that aliens will be encouraged to enter clandestinely due to the slight chance of obtaining discretionary relief during removal proceedings several years in the future.[lxxxiii]

Another factor undermining the agency’s reasoning is the existence of a statutory provision providing that aliens who are removed or granted voluntary departure, who subsequently re-enter the country without inspection, are ineligible for any further relief, including cancellation of removal.[lxxxiv]  There is no parallel provision creating ineligibility for relief for those aliens who withdraw an application for admission and subsequently re-enter without inspection.[lxxxv]  One canon of interpretation posits that, “‘[w]here Congress knows how to say something but chooses not to, its silence is controlling.’”[lxxxvi]  Here, Congress knew how to exclude certain classes of aliens from cancellation of removal, and it did not choose to exclude aliens who withdrew an application for admission.[lxxxvii]

An additional issue related to congressional intent also weighs against the B.I.A.’s interpretation.[lxxxviii]  The statutory standard for breaks in presence that terminate continuous physical presence, prior to amendments made in 1996, was any absence that was not “brief, casual, and innocent.”[lxxxix]  This standard allowed courts to use their judgment to determine which absences “meaningfully interrupt” an alien’s continuous presence.[xc]  Applying their considered opinion thus so under this previous statutory standard, courts determined that “voluntary departure under threat of deportation is ‘not a brief, casual, and innocent absence from the United States.’”[xci]  In 1996, Congress replaced the earlier qualitative standard with “a single, objective, clear rule.”[xcii]  The B.I.A.’s interpretation of this new standard can be seen as an attempt to “read[] the ‘brief, casual, and innocent’ standard back into the continuous physical presence provision, retaining the regime affirmatively deleted by Congress” under the guise of advancing Congress’s goal of deterring illegal immigration.[xciii]  Thus, there is good reason to believe that the B.I.A.’s interpretation is actually inconsistent with congressional intent.[xciv]

e.  Consistency with Other Circuits

The Mendez-Reyes court found the agency interpretation reasonable also partly because every other circuit court faced with the same issue found the interpretation reasonable.[xcv]  However, Chevron provides an analysis for determining the appropriateness of judicial deference to agency interpretations, not the decisions of other courts.[xcvi]  Of course, the reasoning of other courts might provide useful guidance, but the mere fact that another court decided an issue in a certain way is itself irrelevant.[xcvii]  Consistency in the law is an important value, of course, but it arguably does not override the monumental significance of a correct determination of the issue here, as it will result either in the deportation or legalization of affected aliens.[xcviii]

Several cases cited by Mendez-Reyes are not helpful, or do not provide any additional reasoning for accepting the agency interpretation.[xcix]  A few courts, however, accepted one argument not explicitly considered in Mendez-Reyes.[c]  These courts accepted the B.I.A.’s argument that its interpretation is consistent with that evidenced by regulations promulgated by the Attorney General.[ci]  Intra-agency consistency, however, does not necessarily say anything about the substance of the interpretation and the Attorney General’s interpretation only provides support to the extent that it is based on persuasive reasoning itself.[cii]  Also, even when consistency is considered as a factor weighing on the persuasiveness of an agency’s interpretation, it is consistency over time, rather than within the agency, that is generally assessed.[ciii]  Thus, there is no additional reasoning in the opinions of other circuits creating a strong basis for adherence to their conclusions.[civ]

C.  Summary of Analysis

The Mendez-Reyes court’s Chevron inquiry has many weaknesses.[cv]  First, it is at least arguable that statutory silence should not be treated the same as ambiguity.[cvi]  Secondly, each of the bases upon which the court relied in finding the agency interpretation reasonable are either ill founded or do not fit the context of withdrawal of an application for admission.[cvii]  Moreover, several factors related to congressional intent actually favor a contrary interpretation.[cviii]

IV.    Demandstein and Its Further Support of Increasingly Demanding Standards for Continuous Physical Presence

The Third Circuit, in Demandstein, recently faced the same issue as that of Mendez-Reyes.[cix]  Here, the court re-affirmed its previous holding without rehashing the prior reasoning.[cx]  Nevertheless, Demandstein fleshed out Mendez-Reyes to a certain extent and provided additional insight into the application of that prior holding.[cxi]

The alien in Demandstein attempted to distinguish his situation from Mendez-Reyes.[cxii]  Specifically, he argued that he was not aware of the significance of the document that he was signing when he withdrew his application for admission, and that he retained an expectation that he could return to the United States.[cxiii]  The court accepted the B.I.A.’s finding that the alien knew what he was signing, based in part on the court’s limited ability to review factual questions.[cxiv]

Regarding the related but different issue of legitimate expectations, the court focused narrowly on the illegitimacy of an alien’s expectation to re-enter without inspection.[cxv]  Indeed, the facts suggest that the alien was inadmissible and re-entered without inspection because of his ineligibility for admission.[cxvi]  The court left open the question, though, whether aliens who withdraw an application for admission, and subsequently enter the country with inspection, can or should be subject to the Mendez-Reyes holding.[cxvii]  Also, the court did not address the fact that there is a specific statutory provision that creates ineligibility for cancellation of removal for aliens removed or granted voluntary departure, who subsequently re-enter without inspection, and no parallel provision for an alien who withdraws an application for admission.[cxviii]

In attempting to distinguish his circumstances from Mendez-Reyes, the alien in Demandstein argued that his situation was more similar to “an alien [who] is turned away at the border,” as opposed to one who signs a formal withdrawal of application for admission.[cxix]  In the course of rejecting this argument, the court explicitly accepted an important qualification on its holding.[cxx]  Specifically, the court acknowledged that an alien who is merely turned away at the border, without signing a formal withdrawal of application for admission, will not be deemed to have broken continuous physical presence.[cxxi]  Thus, Demandstein fleshes out the rule laid down in Mendez-Reyes and leaves open additional questions for the future.[cxxii]

V.      Future Expansion

The Third Circuit, in Mendez-Reyes and Demandstein, found that the statutory text is not exhaustive regarding conditions that terminate continuous physical presence, opening the door for the B.I.A. to justify additional events that cause the same effect.[cxxiii]  In the wake of these decisions, there are many possibilities for future expansions upon their holdings.[cxxiv]  This section will discuss a few such possible expansions.[cxxv]

The First Circuit held recently that expedited removal terminates continuous physical presence, and the Third Circuit might follow its lead if faced with the question itself.[cxxvi]  Expedited removal is an alternative to withdrawal of an application for admission for aliens denied entry at the border.[cxxvii]  Although a formal order of removal will terminate continuous physical presence, at least two significant differences exist between expedited removal and a normal removal order: (1) expedited removal is only imposed on arriving aliens, and (2) expedited removal does not have the same procedural protections as a normal removal proceeding.[cxxviii]  Nevertheless, expedited removal seems like a clearer case for termination of continuous physical presence than withdrawal of an application for admission.[cxxix]  First, the statute states that an alien subject to expedited removal is inadmissible for five years, which makes clear that the alien cannot have a legitimate expectation of returning to the United States, and that Congress intended such an effect.[cxxx]  Second, expedited removal, unlike withdrawal of an application for admission, is a formal determination of inadmissibility.[cxxxi]

Another possibility for further expansion is termination of continuous physical presence upon certain violations of immigration law.[cxxxii]  In keeping with the recent cracking down on immigration law violations, including increased state involvement, it would not be surprising to see attempts at further expansions of this type.[cxxxiii]  Additionally, the Third Circuit already accepted, in Mendez-Reyes, the B.I.A.’s argument that a congressional objective of the statute is the deterrence of illegal immigration, which opens the door for further expansion in pursuit of this goal.[cxxxiv]  Also, many states have begun to crack down on employment of unauthorized aliens as a way of targeting the main incentive for illegal immigration, which might serve as a justification for related limitations upon eligibility for immigration-related relief as well.[cxxxv]  Even so, this type of expansion seems difficult to justify, as it does not necessarily involve any physical departure of an alien from the United States and, thus, does not appear to be a severing of ties with the country.[cxxxvi]  Also, as argued above, the statute does not necessarily seek to achieve its goal of deterring illegal immigration at all costs.[cxxxvii]

A similar argument could be made for aliens who have entered without inspection more than once.[cxxxviii]  The statute explicitly states that aliens who are unlawfully present for more than 180 days are subject to a three- or ten-year bar on admissibility, which is triggered upon their departure from the country.[cxxxix]  Thus, the statute seems to create a formal severing of ties between such aliens and the United States upon their departure from their country, at least for several years.[cxl]  Also, as stated above, the Third Circuit has already accepted the B.I.A.’s argument that the statute signifies a congressional intent to deter illegal immigration.[cxli]  Finally, the Third Circuit has specifically noted that there are no legitimate expectations to enter without inspection.[cxlii]  Nevertheless, this reasoning seems contrary to congressional intent evidenced by the fact that cancellation of removal is left open to aliens in unlawful presence.[cxliii]

VI.    Conclusion

As a result of recent Third Circuit decisions, continuous physical presence cannot be determined simply by analyzing an alien’s circumstances in light of statutory language.[cxliv]  Voluntary departure and withdrawal of an application for admission are two events that will definitely break an alien’s continuous physical presence.[cxlv]  This issue will likely not end here, as the Third Circuit has opened the door for the B.I.A. to define any instance that it believes causes a break in continuous physical presence.[cxlvi]  Aliens, be warned: your dealings with the government may have consequences beyond what you expect, and the standards required for cancellation of removal are more demanding than ever before.




[i]See generally Types of Visas for Temporary Visitors, U.S. Dept. of State, http://travel.state.gov/visa/temp/types/types_1286.html (last visited Jan. 12, 2012) (listing various types of visas for visitors to United States); see also U.S. Raises Security Concerns for Air Travelers, CNN (Nov. 23, 2010), http://articles.cnn.com/2010-11-23/travel/holiday.travel_1_full-body-sca... (noting traveler frustration at increasingly intrusive airport security).  Partly as a result of the many types of visas for visitors alone, it is easy to accidentally obtain the wrong type of visa and be denied admission to the United States because of this document mishap.  Cf. Journalists and I Visas, U.S. Dept. of State, http://travel.state.gov/visa/laws/telegrams/telegrams_1426.html (last visited Jan. 12, 2012) (stating that journalists must have correct visas and cannot enter on tourist visas).

[ii]See Marc R. Rosenblum, Border Security: Immigration Security Between Ports of Entry, Congressional Research Service, 12 (Jan. 6 2012), available at http://www.fas.org/sgp/crs/homesec/R42138.pdf (noting jump in appropriations for Border Patrol from $232 million in 1989 to $3.6 billion in 2012); see also

On a Typical Day in Fiscal Year 2010, CBP (Feb. 25, 2010), http://www.cbp.gov/xp/cgov/about/accomplish/typical_day_fy2010.xml (touting number of people and amount of cargo processed for entry, number of apprehensions at border, number of arrests, amount of drugs seized, and other statistics for typical day in 2010).

[iii]See 8 U.S.C. § 1181(a) (2006) (announcing documentation required for entry to United States); see also Journalists and I Visas, supra note 1 (clarifying that journalists visiting United States require specific journalist visa, and cannot be admitted with tourist visa).

[iv]See 8 U.S.C. § 1225(a)(4) (2009) (“An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.”); see also Enforcement, Fiscal Year 2000, Dept. of Homeland Security, 2 (2000), available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2000/ENF2000text.pdf (“Inspectors may permit most inadmissible aliens the opportunity to withdraw their application for admission . . .”).

[v]See Demandstein v. Att’y Gen., 639 F.3d 653, 656 (3d Cir. 2011) (describing and quoting Form 1-275).

[vi]See id. at 657-58 (holding that alien’s withdrawal of application for admission terminated continuous physical presence); see also Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 193 (3d Cir. 2005) (holding that alien withdrawing application for admission terminates continuous physical presence); Richard D. Steel, Admission Determinations, in Steel on Immigration Law § 12:8 (2011) (listing alternate possible consequences for aliens deemed inadmissible at port of entry, including secondary inspection, deferred inspection, summary exclusion, referral to asylum officer, removal proceedings, and withdrawal of application for admission).

[vii]See Demandstein, 639 F.3d at 657-58 (finding alien’s withdrawal of application for admission terminated continuous physical presence); see also Mendez-Reyes, 428 F.3d at 193 (holding that alien withdrawing application for admission terminates continuous physical presence).

[viii]See Demandstein, 639 F.3d at 657-58 (finding alien’s withdrawal of application for admission terminated continuous physical presence); see also Mendez-Reyes, 428 F.3d at 193 (holding that alien withdrawing application for admission terminates continuous physical presence); Richard D. Steel, Cancellation, in Steel on Immigration Law, supra note 6 § 14:28 (summarizing cancellation of removal).

[ix]For a discussion and analysis of continuous physical presence and events that have been held to terminate it, see infra notes 24-123 and accompanying text.

[x]For a discussion of the statutory language pertinent to an understanding of continuous physical presence, see infra notes 16-23 and accompanying text.

[xi]428 F.3d 187 (3d Cir. 2005)

[xii]For a discussion and analysis of Mendez-Reyes, see infra notes 24-109 and accompanying text.

[xiii]639 F.3d 653 (3d Cir. 2011)

[xiv]For a discussion of Demandstein, see infra notes 110-23 and accompanying text.

[xv]For a discussion of possible future expansions of events terminating continuous physical presence, see infra notes 124-44 and accompanying text.

[xvi]See 8 U.S.C. § 1229b(a)-(b) (2006) (setting out requirements for cancellation of removal of both types).  Even an LPR who does not satisfy the requirements of the first type of cancellation of removal may be eligible for the second type.  See id. (listing requirements for cancellation of removal).

[xvii]See Demandstein, 639 F.3d at 654 (laying out facts of case and background information).  Demandstein dealt with an alien who applied for non-LPR cancellation of removal and involved a determination of the requirements of that type of cancellation.  Id.

[xviii]See § 1229b(b) (setting out requirements for non-LPR cancellation removal).  Some things that are often bases for finding a lack of good moral character are: (a) adultery, (b) habitual abuse of alcohol, (c) various criminal offenses, (d) illegal gambling, and (e) attempting to falsely obtain immigration benefits.  See Richard D. Steel, Cancellation, in Steel on Immigration Law, supra note 6 § 14:28 (discussing good moral character).  Other factors that may be considered are payment of taxes, payment of child or spousal support, and refusal to answer questions.  See id. (discussing good moral character).

     For purposes of determining whether “exceptional and extremely unusual hardship” would result from removal, some factors that are often considered are: (a) length of residency in the United States, (b) financial burden associated with removal, (c) health condition and age, and (d) potential ability to return to the United States in the future.  See id. (discussing extreme and unusual hardship).

     The statute also requires, for eligibility for non-LPR cancellation of removal, that the alien has not been convicted of certain offenses.  See § 1229b(b)(1)(C) (laying out requirements for non-LPR cancellation of removal, including absence of certain convictions).  Specifically, the alien may not have been convicted of any offense that would render him inadmissible, any offense that would render him deportable, or any offense related to “[f]ailure to register and falsification of documents.”  See id. (laying out requirements for non-LPR cancellation of removal and specifically absence of certain convictions); see also 8 U.S.C. §§ 1182(a)(2) (2010), 1227(a)(2)-(3) (2008) (laying out offenses that render aliens inadmissible, deportable, or relating to failure to register and falsification of documents).

[xix]See Demandstein, 639 F.3d at 655 (summarizing basis for appeal).  The alien’s basis for appeal of the Board of Immigration Appeals’ (“B.I.A.”) decision was grounded in a challenge to its interpretation of continuous physical presence.  Id.

[xx]See § 1229b(d)(1)-(2) (setting out conditions that are deemed to terminate continuous physical presence).

[xxi]See § 1229b(d)(1) (setting out conditions that terminate continuous physical presence).  In many instances, the fact that an alien’s period of continuous physical presence terminates upon commission of an offense that would render him inadmissible or deportable is probably irrelevant.  If an alien has been convicted of such an offense, the alien will no longer be eligible for non-LPR cancellation of removal at all.  See § 1229b(b)(1)(C) (laying out requirements for non-LPR cancellation of removal and, specifically, absence of convictions of certain offenses).  Aliens who have not been convicted but have, however, committed such an offense, are unlikely to voluntarily provide that incriminating information, as it would probably result in undesirable consequences.  See, e.g., § 1182(a)(2)(I) (announcing inadmissibility ground related to money laundering); see also 18 U.S.C. § 1956 (2009) (announcing that various instances of money laundering are criminal and will be punished by various sanctions, including fines of up to $500,000, restitution, and up to twenty years imprisonment).  Thus, commission of such an offense will likely have the effect of terminating continuous physical presence or will be unknown and, thus, have no effect at all. 

[xxii]See § 1229b(d)(2) (setting out breaks in presence that terminate continuous physical presence).

[xxiii]See id. (identifying absences from country that terminate continuous physical presence).

[xxiv]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d Cir. 2005) (holding that Immigration Judge (“IJ”) decision was reasonable and entitled to deference).

[xxv]See Demandstein v. Att’y Gen., 639 F.3d 653, 657 (3d Cir. 2011) (relying upon Mendez-Reyes).  Part of the significance of the Demandstein court’s reliance upon Mendez-Reyes comes from the fact that, in so relying, the Demandstein court declined to reproduce the reasoning that the Mendez-Reyes employed.  See id. (citing to Mendez-Reyes as precedent). 

[xxvi]See id. (citing to Mendez-Reyes as precedent).

[xxvii]For a discussion of Demandstein and potential expansions, see infra notes 123-44 and accompanying text.

[xxviii]See Mendez-Reyes, 428 F.3d at 193 (upholding IJ’s determination that withdrawal of application for admission terminates continuous physical presence).

[xxix]See Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (B.I.A. 2011) (holding that voluntary departure terminates continuous physical presence).  Voluntary departure is another type of relief from removal.  See 8 U.S.C. § 1229c (2006) (discussing voluntary departure).  It is a formal relief that allows an alien to depart from the United States on their own without undergoing a removal proceeding.  See id. (discussing voluntary departure). 

[xxx]See Mendez-Reyes, 428 F.3d at 189 (noting that IJ relied on prior B.I.A. case).

[xxxi]Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

[xxxii]See Mendez-Reyes, 428 F.3d at 192-93 (upholding B.I.A.’s holding from prior case and finding no error in IJ’s application of that holding).

[xxxiii]See Chevron, 467 U.S. at 842-43 (establishing two-prong test for judicial review of agency interpretations of statute agency charged with administering).

[xxxiv]See id. (laying out two-prong test with first step involving determination of ambiguity or clarity of statutory language).

[xxxv]See id. (laying out test and stating that congressional intent, where clear, must be followed).

[xxxvi]See id. (laying out two-prong test that involves determination of reasonableness of agency interpretation of ambiguous statutory language).

[xxxvii]See id. (laying out two-prong test).  The Court cautioned that a court should not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.”  Id.  The Court reasoned that if Congress delegates interpretative power to an agency, that agency should be the entity to interpret the statute so long as it does so reasonably.  See id. at 843-44 (discussing relevance of congressional delegations to agencies).  Subsequent cases have further complicated the analysis, requiring a preliminary inquiry as to whether Congress has in fact delegated such power to the agency, and whether the agency intended to use such delegated power in articulating its interpretation.  See United States v. Mead Corp., 533 U.S. 218, 226-227 (2001) (stating holding).  However, a full discussion of such preliminary inquiries into agency authority are beyond the scope of this Casebrief.

[xxxviii]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191-92 (3d Cir. 2005) (analyzing whether or not statutory language is clearly exclusive).

[xxxix]See id. (finding that statute’s list of conditions is not clearly exclusive). 

[xl]See id. at 192 (“In the absence of statutory language addressing the precise issue at hand, we move to the second step of the Chevron analysis to determine whether the agency has adopted a permissible construction of the statute.”).

[xli]See id. (undertaking Chevron step two analysis).

[xlii]See id. at 192-93 (upholding agency interpretation).  The court in Mendez-Reyes reviewed the IJ opinion, and the prior B.I.A. case upon which it relied, because the B.I.A. in Mendez-Reyes affirmed the IJ’s decision without issuing an additional opinion.  See id. at 189 n.1 (“Where, as here, the Board of Immigration Appeals (“BIA”) merely adopts the decision of the IJ, this Court reviews the IJ’s opinion on petition for review.”).

[xliii]For a discussion of the reasoning from Mendez-Reyes, see infra notes 24-109 and accompanying text.

[xliv]See Mendez-Reyes, 428 F.3d at 191-92 (finding statutory language ambiguous).  For a discussion of the court’s finding, see infra notes 31-38, 46-51, and accompanying text.

[xlv]See id. at 192-93 (finding agency interpretation permissible).

[xlvi]See id. 428 at 191-92 (finding Chevron step one satisfied).

[xlvii]See Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”). But see Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 380-81 (1988) (Scalia, J., concurring) (arguing that statutory silence, even regarding scope of agency’s authority, is entitled to Chevron deference); see also id. at 386-87 (Brennan, J., dissenting) (arguing that agency interpretation of statutory silence regarding its own jurisdiction is not entitled to Chevron deference); Am. Bar Ass’n v. FTC, 430 F.3d 457, 468 (D.C. Cir. 2005) (“‘To suggest . . . that Chevron step two is implicated any time a statute does not expressly negate the existence of a claimed administrative power . . . is both flatly unfaithful to the principles of administrative law . . . and refuted by precedent.”) (quoting Ry. Labor Execs. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994)).  In Mississippi Power & Light, the majority opinion was decided on grounds unrelated to Chevron deference, so although disagreement among the justices regarding statutory silence has been clearly expressed, the issue has not been definitively resolved.  See Mississippi Power & Light, 487 U.S. at 369-370 (expressing holding, not grounded in deference to agency interpretation); see also Nathan Alexander Sales & Jonathan H. Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. Ill. L. Rev. 1497, 1507 (2009) (discussing Mississippi Power & Light majority opinion).

[xlviii]See generally  Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 965-67 (9th Cir. 2003) (Berzon, J., dissenting) (arguing that B.I.A. interpretation does not survive Chevron step one); see also Sales & Adler, supra note 47 at 1497 (arguing that statutory silence should not be treated same as ambiguity for purposes of Chevron deference).

[xlix]Cf. Fed. Land Bank v. Bismark Lumber Co., 314 U.S. 95, 99-100 (1941) (noting that “the term ‘including’ is not one of all-embracing definition, but connotes an illustrative application of the general principle”); Phelps Dodge Corp v. NLRB, 313 U.S. 177, 189 (1941) (explaining significance and effect of word “including”); Helvering v. Morgan’s, Inc., 293 U.S. 121, 124-26 (1934) (discussing meaning of word “includes”).

[l]See Mississippi Power & Light, 487 U.S. at 381 (Scalia, J., concurring) (arguing for deference to agency interpretations even in cases of statutory silence posing jurisdictional questions); see also id. at 386-87 (Brennan, J., dissenting) (arguing that deference should not be granted in cases of statutory silence posing jurisdictional questions).  In Mississippi Power & Light, the concurrence written by Justice Scalia and dissent written by Justice Brennan expressed disagreement regarding the proper treatment of statutory silence.  See Mississippi Power & Light, 487 U.S. at 380-81 (Scalia, J., concurring) (disagreeing with dissent regarding appropriate deference to agency); see also id. at 386-87 (Brennan, J., dissenting) (arguing deference is not due to agency interpretation of statutory silence regarding its own jurisdiction).

[li]See 8 U.S.C. § 1229b(a)-(b) (2006) (announcing cancellation of removal as relief available to aliens who are otherwise inadmissible or removable).

[lii]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 192 (3d Cir. 2005) (undertaking Chevron step two analysis and finding agency interpretation reasonable).

[liii]See id. (undertaking Chevron step two analysis and explaining bases for reasonableness of agency interpretation).

[liv]See id. at 189-90 (stating issues raised on appeal); see also id. at 191 (explaining that B.I.A. decision applied to voluntary departure).

[lv]See id. at 192 (noting Congress’s broad delegation to Attorney General in immigration context).  IJs and the B.I.A. are part of the Department of Justice, which is headed by the Attorney General.  See About the Office, Dept. of Justice http://www.justice.gov/ag/about-oag.html (last visited Jan. 14, 2012) (noting that Attorney General is head of Department of Justice); see also Board of Immigration Appeals, Dept. of Justice, http://www.justice.gov/eoir/biainfo.htm (last visited Jan. 14, 2012) (discussing B.I.A. and its exercise of authority granted to Attorney General); Department of Justice Agencies, Dept. of Justice, http://www.justice.gov/agencies/index-list.html (last visited Jan. 14, 2012) (listing agencies that are part of Department of Justice, including Executive Office for Immigration Review).

[lvi]See United States v. Mead Corp., 533 U.S. 218, 227-31 (2001) (addressing determination of delegation of interpretive power and establishing preliminary inquiry regarding delegation as initial requirement for deference).  Mead essentially adds a preliminary inquiry to the Chevron framework, which looks for some indication of congressional delegation of interpretive power to the agency.  See id. (analyzing conditions that warrant Chevron inquiry as initial matter).  The Attorney General, and thus the IJ and B.I.A., do have the required authority here and, thus, are entitled to Chevron deference as a preliminary matter.  See 8 U.S.C. § 1103(a)(1) (2009) (delegating authority to Attorney General).

[lvii]See Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844-45 (1984) (laying out basic test for judicial deference to agency interpretations).  The Court refers to congressional delegation as a foundational rationale for judicial deference, and discusses the reasonableness of an agency’s interpretation as a separate matter.  See id. (discussing new test and underlying rationales).

[lviii] SeeMead, 533 U.S. at 227-31 (discussing effect of delegation on deference).

[lix]See Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“[R]eview must take appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive [agency] efforts to enforce this complex statute, and the Nation’s need to ‘speak with one voice’ in immigration matters.”). But see Mead, 533 U.S. at 250 (Scalia, J., dissenting) (arguing that it is “a trifling statement of the obvious,” that, “[a] judge should take into account the well-considered views of expert observers”).

[lx]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 192 (3d Cir. 2005) (engaging in Chevron step two analysis).

[lxi]See id. (citing Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir. 2003)) (discussing effect of removal).

[lxii]See id. (quoting Vasquez-Lopez, 343 F.3d at 972) (likening voluntary departure to plea bargaining).

[lxiii]Compare 8 U.S.C. § 1225(a)(4) (2009) (providing for ability to immediately depart if deemed inadmissible at port of entry), with 8 U.S.C. § 1229c (2006) (providing for relief granted in lieu of removal proceedings).

[lxiv]See Voluntary Departure, USCIS, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176... (last visited Jan. 11, 2012) (discussing voluntary departure).

[lxv]See Barbara Hines, Grounds of Deportability and Inadmissibility, University of Texas School of Law Immigration Clinic 1, http://www.utcle.org/eLibrary/preview.php?asset_file_id=5388 (“The grounds of inadmissibility are generally broader than the grounds of deportation.”).  An alien who is removable is almost always inadmissible as well.  See id. An alien who satisfies an inadmissibility ground, however, is not necessarily removable if already admitted to the United States, as inadmissibility grounds are generally broader.  See id.  For example, mere commission of a crime of moral turpitude is an inadmissibility ground, whereas an actual conviction for such a crime is necessary to render an alien removable.  Compare § 1182(a)(2)(i) (2010) (laying out inadmissibility ground for crimes of moral turpitude), with § 1227(a)(2)(i) (2008) (laying out removal ground for crimes of moral turpitude).

[lxvi] See§ 1225(a)(4) (“An alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States.”) (emphasis added).

[lxvii]See 8 U.S.C. §§ 1101(a)(13)(A), (C) (2011) (defining “admission”).  Admission, as defined in the statute, necessarily applies to aliens alone.  See generally Richard D. Steel, Admission Determinations, in Steel on Immigration Law, supra note 6 § 12:8 (noting that if person is United States citizen, they will be admitted as United States citizen and if person is alien, they will be admitted if admissible).  Among aliens, “admission” and thus, admissibility grounds, do not ordinarily apply to LPRs.  See § 1101(a)(13)(A) (defining “admission”).  For a list of exceptions to the general rule that LPRs are not subject to admissibility grounds, see § 1101(a)(13)(C).  Those subject to admissibility grounds, therefore, are nonimmigrant aliens who are generally subject to nonimmigrant intent as a basis of their admissibility.  See, e.g., § 1101(a)(15)(F)(i) (listing as among nonimmigrant aliens “an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student . . . and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study . . .”); see also § 1101(a)(15)(H)(ii)(a) (listing as among nonimmigrant aliens one “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services . . .”); § 1101(a)(15)(H)(ii)(b) (listing as among nonimmigrant aliens one “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee . . .”); § 1101(a)(15)(J) (listing as among nonimmigrant aliens “an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill . . . who is coming temporarily to the United States . . .”); § 1101(a)(15)(M)(i) (listing as among nonimmigrant aliens “an alien having a residence in a foreign country which he has no intention of abandoning . . .”); § 1101(a)(15)(O)(ii)(IV) (listing as among nonimmigrant aliens one who has “extraordinary ability” and “has a foreign residence which the alien has no intention of abandoning”); § 1101(a)(15)(P) (listing as among nonimmigrant aliens “an alien having a foreign residence which the alien has no intention of abandoning who,” is an entertainer); § 1101(a)(15)(Q) (listing as among nonimmigrant aliens “an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program . . .”).  The fact that most nonimmigrant aliens are required to have nonimmigrant intent means that, even if they are not attempting to enter the United States for the first time, they are presumed to have no permanent ties with the country.  See generally Richard D. Steel, Definitions, in Steel on Immigration Law, supra note 6 § 3:1 (defining “nonimmigrant” and noting that “[p]ersons sometimes are denied nonimmigrant visas or status because of an ultimate intent to remain in the United States permanently”).  In fact, by definition, nonimmigrants are distinguished from immigrants (LPRs) by the temporary nature of their stay in the United States.  See id. (defining non-immigrants); see also § 1101(a)(15) (defining immigrants as aliens who are not non-immigrants, and listing various classes of non-immigrants, most of which require non-immigrant intent).  Additionally, nonimmigrant aliens who are not subject to the nonimmigrant intent requirement are usually exempt from it for a non-arbitrary reason.  See, e.g., § 1101(a)(15)(K) (listing as among nonimmigrant aliens an alien “who is the fiancée or fiancé of a citizen of the United States . . . and who seeks to conclude a valid marriage with the petitioner within ninety days after admission”).  Also, although LPRs are subject to admissibility grounds upon their first entry to the United States, they will not yet have developed ties to the country at that time.  See § 1101(a)(13)(A) (defining “admission”).

[lxviii]See § 1229c(a)(4) (distinguishing between voluntary departure and withdrawal of application for admission).

[lxix]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 192 (3d Cir. 2005) (citing Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972 (9th Cir. 2003)).

[lxx]Cf. Demandstein v. Att’y Gen., 639 F.3d 653, 656 (3d Cir. 2011) (reciting background facts relating to alien’s withdrawal of application for admission).

[lxxi]See id. (reciting background facts).

[lxxii]See, e.g., 8 U.S.C. § 1183a (1996) (announcing procedure for submitting affidavit of support to remedy inadmissibly for public charge grounds).

[lxxiii]Cf. 8 U.S.C. § 1225(a)(4) (2009) (providing for availability of withdrawal of application for admission).  Withdrawing an application for admission does not create any categorical statutory ineligibility for re-applying for admission.  Id.

[lxxiv]See Hines, supra note 65 (“The grounds of inadmissibility are generally broader than the grounds of deportation.”). 

[lxxv]See 8 U.S.C. § 1101(a)(15)(L) (2011) (announcing category of non-immigrant aliens who come to United States to continue to work for employer for whom they had worked for abroad for at least three years in occupation or position requiring specialized knowledge).

[lxxvi]Compare id.(announcing category of non-immigrant aliens who come to United States to continue to work for employer for whom they had worked for abroad for at least three years in occupation or position requiring specialized knowledge), with 8 U.S.C. § 1153(b)(1)(C) (2006) (announcing immigrant visa for multinational executives and managers).

[lxxvii]See 8 U.S.C. § 1255 (2008) (announcing and discussing adjustment of status from that of non-immigrant to immigrant).

[lxxviii]See 8 U.S.C. § 1181(a) (2006) (announcing documentation required for entry to United States).

[lxxix]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 192 (3d Cir. 2005) (discussing purported purpose and effect of withdrawal of application for admission).

[lxxx]See id. at 192 (agreeing with B.I.A. that alien who voluntarily departs and subsequently re-enters without inspection should not be able to continue continuous physical presence “just because he managed to do so within 90 days”); see also id. at 192 n.3 (noting B.I.A.’s determination that Congress intended 1996 amendments to immigration law to deter illegal immigration).

[lxxxi]Rodriguez v. United States, 480 U.S. 522, 525-26 (1987).

[lxxxii]See § 1255(c) (announcing ineligibility for adjustment of status for several types of aliens); see also 8 U.S.C. § 1182(a)(9)(B) (2010) (announcing three year bar on admissibility for aliens with between 180 days and one year of unlawful presence and ten year bar for those with over one year of unlawful presence).  Aliens who entered without inspection are statutorily ineligible to legalize their status from within the country.  See § 1255(c) (announcing ineligibility for adjustment of status for aliens in unlawful presence).  Leaving the country to obtain a visa and immigrate legally is also usually not an option because of the three- or ten-year bars on admissibility that are triggered upon departure from the United States.  See § 1182(a)(9)(B) (announcing inadmissibility for three or ten years for aliens in unlawful status).  The only exception to this inability to legalize is for visa over-stayers who obtain permanent residency through an immediate relative. See § 1255(c) (listing aliens ineligible for adjustment of status and related exceptions).

Due to the inability to adjust status, and infeasibility of returning to the alien’s home country to apply for a visa (particularly when the alien has a spouse and/or children in the United States) due to three or ten year bars triggered upon departure, cancellation of removal is often the only way for an unauthorized alien to legalize.  See § 1255(c) (2000) (announcing ineligibility for adjustment of status for several types of aliens); see also § 1182(a)(9)(B) (announcing three- and ten-year bars on admissibility for aliens in unlawful presence).  Congress’s choice in creating this category of cancellation of removal and leaving it open to unauthorized aliens demonstrates an intent to allow this one form of legalization for a small class of such aliens.  Cf. Morales-Morales v. Ashcroft, 384 F.3d 418, 428 (7th Cir. 2004) (“The statutes would be a nullity if the lack of lawful entry made it impossible to establish any period of continuous physical presence.”).  Also, cancellation of removal requires a showing of “exceptional and extremely unusual hardship” to an immediate family member (who must be a citizen or LPR), which indicates a congressional intent to pardon certain aliens in unlawful presence when other factors are of overriding significance.  See 8 U.S.C. § 1229b(b) (2006) (laying out requirements for non-LPR cancellation, including hardship factor).

[lxxxiii]Cf. Nat’l Ctr. for Immigrants’ Rights, Inc. v. INS, 913 F.2d 1350, 1367 (9th Cir. 1990) (quoting S. Rep. 99-132, 99th Cong., 1st Sess. 1 (1985)) (“The primary incentive for illegal immigration is the availability of U.S. employment.”); Jeffrey Passel & D’Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010, Pew Hispanic Center (Feb. 1, 2011), http://www.pewhispanic.org/2011/02/01/unauthorized-immigrant-population-... (noting decrease in unauthorized immigrant population since 2007 and noting likely link with economic recession). 

[lxxxiv]See 8 U.S.C. § 1231(5) (2006) (dealing with aliens who have been removed or departed voluntarily and subsequently re-enter United States without inspection).

[lxxxv]See id. (creating ineligibility for relief for aliens who have been removed or departed voluntarily and subsequently re-enter United States without inspection).

[lxxxvi]V.J.C. Prods., Inc. v. Kydes, 903 F. Supp. 42, 44 (S.D. Ga. 1995) (quoting In re Haas, 48 F.3d 1153, 1156 (11th Cir. 1995)).

[lxxxvii]See § 1231(5) (creating ineligibility for cancellation for aliens who have been removed or departed voluntarily and subsequently re-enter United States without inspection).

[lxxxviii]See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 963-65 (9th Cir. 2003) (Berzon, J., dissenting) (noting change in statutory language due to amendment and arguing its effect precludes agency’s interpretation).

[lxxxix]See id. at 963 (Berzon, J., dissenting) (quoting 8 U.S.C. § 1254(b)(2) (repealed 1996)) (noting previous statutory language).

[xc]See id. at 963-964 (Berzon, J., dissenting) (quoting 8 U.S.C. § 1254(b)(2) (repealed 1996)) (describing history of amendments to statute and their effects).  Prior to codification of the “brief, casual, and innocent” standard, courts had read it into the requirement of continuous physical presence.  Id.  The Supreme Court chided the Ninth Circuit for not reading the statutory language “continuous physical presence” literally.  See INS v. Phinpathya, 464 U.S. 183, 189-90 (1984) (reversing Ninth Circuit based on its statutory interpretation).  Subsequently, Congress codified the “brief, casual, and innocent” standard to allow the courts to continue to use their judgment in construing “continuous physical presence,” as they previously had.  See Vasquez-Lopez, 343 F.3d at 963-64 (Berzon, J., dissenting) (describing history of codification of prior standard). 

[xci]See Vasquez-Lopez, 343 F.3d at 964 (Berzon, J., dissenting) (quoting Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir. 1989)) (referring to prior holding under previous statutory standard).

[xcii]See id. (Berzon, J., dissenting) (discussing 1996 amendment to standard for absences terminating continuous physical presence).

[xciii]See id. (Berzon, J., dissenting) (discussing effect of statutory amendment, and arguing that B.I.A.’s interpretation seeks to bypass effect of amendment); see also Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (B.I.A. 2011) (discussing legislative history and determining Congress’s purpose for 1996 amendments was to deter illegal immigration).

[xciv]See Vasquez-Lopez, 343 F.3d at 963-65 (Berzon, J., dissenting) (arguing effect of 1996 amendment to statutory standard precludes B.I.A. interpretation).  The majority opinion found significant the fact that Congress, in amending the standard, did not impose a return to the “absolute rule” of reading “continuous physical presence” literally, and continued to recognize that some breaks in presence are not meaningful.  See id. at 972 (accepting B.I.A. reasoning that amendment to statute did not eliminate prior standard).  The majority found that this fact left open the possibility that courts might still exercise their judgment with respect to the effect of shorter departures.  Id.  This reasoning, however, ignores the fact that Congress unequivocally deleted that qualitative standard in favor of a quantitative standard.  See id. at 968 (Berzon, J., dissenting) (arguing that statutory  amendment eliminated prior standard).  The dissent explained:

In sum, Congress could have continued to include the “brief, casual, and innocent” standard in the post-IIRIRA INA for purposes of continuous physical presence. It did not. Congress could have made administrative voluntary departures a ground of ineligibility for cancellation of removal. It did not. Congress could have applied the “stop time” rule to illegal aliens who accept administrative voluntary departures, rather than requiring a Notice to Appear to end the accrual of continuous physical presence. It did not.

Id.(Berzon, J., dissenting).

[xcv]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 192 (3d Cir. 2005) (assessing reasonableness of B.I.A. interpretation).

[xcvi]See Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (laying down test for judicial deference to agency interpretations).

[xcvii]Cf. United States v. Mead Corp., 533 U.S. 218, 227-28 (2001) (discussing deference to agency interpretations based on expertise and other factors despite ineligibility for Chevron deference).  The Court in Mead explicitly recognized that even an agency interpretation that is not qualified for Chevron deference is entitled to some level of deference based on “all those factors which give it power to persuade, if lacking power to control.”  Id. at 228 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).  This same sort of approach could be taken in deferring to the decisions of other courts, provided that their reasoning is indeed persuasive.  See id. at 250 (Scalia, J., dissenting) (noting that it is commonplace for judges to “take into account the well-considered views of expert observers”).

[xcviii]See 8 U.S.C. § 1229b(a)-(b) (2006) (announcing cancellation of removal as relief available to aliens who are otherwise inadmissible or removable).

[xcix]See Morales-Morales v. Ashcroft, 384 F.3d 418, 424-28 (7th Cir. 2004) (assessing whether apprehension and rebuffing of would-be clandestine entrant terminates continuous physical presence and finding that it does not); see also Palomino v. Ashcroft, 354 F.3d 942, 944-45 (8th Cir. 2004) (assessing alien’s claim that B.I.A. wrongly interpreted statute to find that voluntary departure terminates continuous physical presence); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215, 218-19 (5th Cir. 2003) (assessing B.I.A. interpretation that voluntary departure terminates continuous physical presence); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972-74 (9th Cir. 2003) (assessing reasonableness of B.I.A. interpretation).  Morales-Morales does not provide additional support for the Mendez-Reyes court’s decision for several reasons.  First, the Morales-Morales court found that the B.I.A.’s prior holding and reasoning in Romalez-Alcaide could not support the IJ’s decision there, as the IJ did not rely on it.  See Morales-Morales, 384 F.3d at 425 (noting IJ had not relied on B.I.A. decision, and any reasoning not actually relied upon cannot be proposed post hoc).  Thus, any analysis the court provided of the B.I.A.’s decision in that case was merely dictum.  See Black’s Law Dictionary 146 (5th ed. 2003) (defining “dictum” as part of judicial opinion “not necessary for the decision of the case”).  Secondly, the court found that the B.I.A. decision did not apply to the alien’s situation in that case because it is limited to instances of voluntary departure under threat of deportation.  See Morales-Morales, 384 F.3d at 425 (noting limitation on B.I.A. holding).  Finally, Morales-Morales did not involve an alien who withdrew an application for admission, but an alien who was apprehended while attempting to enter clandestinely and simply turned back.  See id. at 421 (reciting background facts).  The court distinguished the alien’s situation from voluntary departure by noting the “elaborate conditions” involved with voluntary departure, whereby an alien must consent to various terms and conditions that, likewise, do not apply to withdrawal of an application of removal.  See id. at 427 (distinguishing from voluntary departure).  The court, however, does seem to confuse voluntary departure with withdrawal of an application for admission by referring to a Fifth Circuit decision that implied that voluntary departure can be granted “at the border.”  See id. (quoting Mireles-Valdez, 349 F.3d at 218).  However, this passing statement is not entitled to much weight, as the statute itself explicitly distinguishes between voluntary departure and withdrawal of an application for admission.  See § 1229c(a)(4) (distinguishing between voluntary departure and withdrawal of application for admission).  The only additional point of reasoning provided by Morales-Morales that was not already considered by Mendez-Reyes is discussed in the text.  For a discussion of this additional point, see infra notes 101-05 and accompanying text.

     Palomino is unhelpful because it provides no additional reasoning.  See Palomino, 354 F.3d at 944-45 (assessing B.I.A.’s interpretation).  The Palomino court summarily accepts and adopts the reasoning of other courts that previously addressed the same issue, without any additional reasoning of its own.  See id. at 945 (summarizing and accepting reasoning of Fifth and Ninth Circuits).  The reasoning of these other courts, which the Palomino court summarizes, boils down to the same arguments discussed in Mendez-Reyes regarding the purpose of voluntary departure of severing ties between the alien and the United States.  See id. (summarizing reasoning of Fifth and Ninth Circuits).  For a discussion and analysis of this reasoning from Mendez-Reyes, see supra notes 60-68 and accompanying text.

     Mireles-Valdez is likewise unhelpful.  First, it relies on the ill-founded reasoning that the agency interpretation is reasonable because of the courts’ general practice of deferring to the Executive Branch in the immigration context.  See Mireles-Valdez, 349 F.3d at 215, 218 (referring to general practice of extending broad deference to Attorney General in immigration matters and reiterating and applying that practice).  For an argument for why this reasoning is inadequate, see supra notes 55-59 and accompanying text.  Also, the court relied upon the equally unsatisfactory reasoning related to the purpose of voluntary departure, and the legitimate expectations of aliens.  See id. (referring to “attendant understanding that the alien will cease his illegal presence” associated with voluntary departure).  For an argument for why this reasoning is inadequate, see supra notes 69-79 and accompanying text.

     Vasquez-Lopez also proves unhelpful, as it relies on much the same reasoning as Mendez-ReyesSee Vasquez-Lopez, 343 F.3d at 972-74 (assessing reasonableness of agency interpretation).  Specifically, the court reasoned that it was reasonable for the B.I.A. to interpret the statute as allowing for termination of continuous physical presence as a result of voluntary departure because of the reasons and purpose of voluntary departure, and the legitimate expectations of an alien granted voluntary departure.  See id. (assessing reasonableness of agency interpretation).  Also, the court argued that the alien’s absence from the United States “was not in-advertent, casual, or otherwise lacking in significance.”  See id. at 974.  This reasoning, however, is essentially a paraphrase of statutory language that was decisively eliminated from the statute’s text and replaced with a new quantitative standard.  See 8 U.S.C. § 1254(b)(2) (repealed 1996) (announcing that absences from United States that are not “brief, casual, and innocent,” cause break in continuous physical presence).  The only additional point of reasoning provided by Vasquez-Lopez that was not already considered by Mendez-Reyes is discussed in the text.  For a discussion of this point, see infra notes 101-05 and accompanying text.

[c]See Morales-Morales, 34 F.3d at 426 (considering and accepting B.I.A.’s argument relating to interpretation of Attorney General); see also Vasquez-Lopez, 343 F.3d at 973 (discussing Attorney General regulation).

[ci]See Morales-Morales, 349 F.3d at 426 (considering and accepting B.I.A.’s argument relating to interpretation of Attorney General); see also Vasquez-Lopez, 343 F.3d at 973 (discussing Attorney General regulation).  Specifically, the B.I.A. argued that the Attorney General’s promulgation of regulations implementing the Nicaraguan Adjustment and Central American Relief Act employed an interpretation of the statute that rejected a strict reading limiting the conditions terminating continuous physical presence to those listed in the statutory text.  See Morales-Morales, 349 F.3d at 426. (discussing Attorney General’s regulations).  This regulation states that, for the aliens affected by it, continuous physical presence terminates upon voluntary departure under the threat of deportation.  Id.

[cii]See Morales-Morales, 349 F.3d at 426 (discussing Attorney General’s regulations).  The case does not indicate any of the reasoning underlying the Attorney General’s regulations. See id.

[ciii]Cf. Mead, 533 U.S. at 228 (citing Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993)).  In Good Samaritan, the Court explained that an agency interpretation that is inconsistent with its earlier interpretation its entitled to less deference.  See Good Samaritan, 508 U.S. at 417 (“An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.”) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 466 n.30 (1987)).

[civ]For a discussion of the reasoning of other circuits, see supra notes 95-104 and accompanying text.

[cv]For a discussion and analysis of the reasoning of Mendez-Reyes, see supra notes 24-109 and accompanying text.

[cvi]For a discussion and analysis of the Chevron step one reasoning of the Mendez-Reyes court, see supra notes 31-38, 46-51, and accompanying text.

[cvii]For a discussion and analysis of the Chevron step two reasoning of the Mendez-Reyes court, see supra notes 39-41, 52-105, and accompanying text.

[cviii]For a discussion of congressional intent, see supra notes 80-94 and accompanying text.

[cix]See Demandstein v. Att’y Gen., 639 F.3d 653, 656 (3d Cir. 2011) (reciting issue as stated by B.I.A.).

[cx]See id. at 657 (citing to Mendez-Reyes as precedent).

[cxi]See id. at 656-58 (considering alien’s argument that his situation is distinguishable from Mendez-Reyes).

[cxii]See id. at 657 (“Demandstein argues that his circumstances can be distinguished from Mendez-Reyes.”).

[cxiii]See id. (summarizing alien’s argument regarding differences between his circumstances and those in Mendez-Reyes).

[cxiv]See id. at 656-57 (upholding B.I.A. finding that alien knew what he was signing).

[cxv]See id. at 658 (quoting Romalez-Alcaide, 23 . & N. Dec. 423, 429 (B.I.A. 2011)) (“Just as with a voluntary departure, neither the government nor [Demandstein] himself could have a legitimate expectation ... that [he] could illegally reenter and resume a period of continuous physical presence.”).

[cxvi]See id. at 654-56 (noting that alien was arrested for attempting to smuggle another alien into United States and was denied entry for this crime); see also 8 U.S.C. § 1182(a)(6)(E)(i) (2010) (announcing inadmissibility ground for alien smuggling).

[cxvii]See Demandstein, 639 F.3d at 658 (reaching conclusion in light of facts of case).

[cxviii]See § 1231(5) (2006) (dealing with aliens who have been removed or departed voluntarily and subsequently re-enter United States without inspection); see also V.J.C. Prods., Inc. v. Kydes, 903 F. Supp. 42, 44 (S.D. Ga. 1995) (quoting In re Haas, 48 F.3d 1153, 1156 (11th Cir. 1995)) (“‘Where Congress knows how to say something but chooses not to, its silence is controlling.’”).

[cxix]See Demandstein, 639 F.3d at 657 (explaining alien’s argument that his circumstances should be distinguished from other cases).

[cxx]See id. at 657-58 (explaining difference in effect between mere turning away at border and withdrawing application for admission).

[cxxi]See id. (explaining difference in effect between mere turning away at border and withdrawing application for admission).

[cxxii]For a discussion of Demandstein and its effects on the holding in Mendez-Reyes, see supra notes 110-22 and accompanying text.

[cxxiii]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 191-92 (3d Cir. 2005) (finding that statute “does not by its terms provide the exclusive definition of break in physical presence”).

[cxxiv]For a discussion of potential future expansions upon the holdings in Mendez-Reyes and Demandstein, see infra notes 127-44 and accompanying text.

[cxxv]For a discussion of possible future expansions upon Mendez-Reyes and Demandstein, see infra notes 127-44 and accompanying text.

[cxxvi]See Vasquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011) (“[W]e reject Vasquez’s challenge to the determination that a departure via an expedited removal order halts continuous physical presence in the United States.”).

[cxxvii]See Richard D. Steel, Admission Determinations, in Steel on Immigration Law, supra note 6 § 12:8 (listing alternate potential results of preliminary determination of inadmissibility of alien at port of entry).

[cxxviii]See Vasquez, 635 F.3d at 565-66 (explaining expedited removal); see also Anne Marie Gallagher & Shane Dizon, Persons Subject to Expedited Removal, 1 Immigration Law Service 2d § 2:214 (2011) (explaining expedited removal generally); Richard D. Steel, Effect of Removal, in Steel on Immigration Law, supra note 6 § 14:46 (discussing effects of removal order).  A person who is subject to a formal order of removal is inadmissible for a minimum of five years, which exceeds the 90 or 180 day absences explicitly mentioned in the statute that terminate continuous physical presence.  See Richard D. Steel, Effect of Removal, in Steel on Immigration Law, supra note 6 § 14:46 (discussing effects of removal order); see also 8 U.S.C. § 1229b(d)(2) (2006) (identifying absences from country that terminate continuous physical presence).  Additionally, if an alien is removed and subsequently re-enters without inspection, the statute makes clear that the alien may be removed pursuant to the prior removal order without a hearing or the availability of any immigration-related relief.  See 8 U.S.C. § 1231(5) (2006) (dealing with aliens who have been removed and subsequently re-enter United States without inspection).

[cxxix]For a discussion contrasting expedited removal and withdrawal of an application for admission, see infra notes 131-32 and accompanying text.

[cxxx]See 8 U.S.C. § 1182(a)(9)(A)(i) (2010) (announcing aliens expeditiously removed are inadmissible for five years).

[cxxxi]Compare 8 U.S.C. § 1225(b)(1)(A)(i) (2009) (“If an immigration officer determines that an alien is inadmissible . . .”) (emphasis added), with Demandstein v. Att’y Gen., 639 F.3d 653, 656 (3d Cir. 2011) (noting that Form I-275 requires aliens to attest to knowledge that they are withdrawing application for admission “in lieu of a formal determination concerning [their] admissibility”).

[cxxxii]See, e.g., 8 U.S.C. § 1324a (2006) (dealing with unlawful employment of aliens); see also 8 U.S.C. § 1612 (2008) (limiting eligibility for federal public benefits for aliens).

[cxxxiii]See generally Joan Biskupic, States Enacting Immigration-Related Laws, USA Today (Dec. 12, 2011, 8:13 A.M.), http://www.usatoday.com/news/washington/judicial/story/2011-12-12/suprem... (discussing massive increase in state immigration legislation); see also Rosenblum, supra note 2 (noting jump in appropriations for Border Patrol from $232 million in 1989 to $3.6 billion in 2012).

[cxxxiv]See Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 192 n.3 (3d Cir. 2005) (accepting B.I.A.’s argument regarding congressional intent to deter illegal immigration).

[cxxxv]See Penny Star, Supreme Court Hears Challenge to Arizona Immigration Law—The One Signed by Gov. Janet Napolitano, CSNnews.com (Dec. 9, 2010), http://cnsnews.com/news/article/supreme-court-hears-challenge-arizona-im... (quoting former Arizona Governor Napolitano’s explanation of reasons for Arizona law regulating employment of aliens).

[cxxxvi]See Mendez-Reyes, 428 F.3d at 192 (reasoning that voluntary departure and removal sever ties between alien and United States).

[cxxxvii]For an argument regarding congressional intent, see supra notes 80-94 and accompanying text.

[cxxxviii]For an argument that multiple entries without inspection could terminate continuous physical presence, see infra notes 140-44 and accompanying text.

[cxxxix]See 8 U.S.C. § 1182(a)(9)(B) (2010) (announcing three- and ten-year bar on admissibility for aliens unlawfully present over 180 days).

[cxl]See id. (announcing three- and ten-year bar on admissibility for aliens unlawfully present over 180 days).

[cxli] SeeMendez-Reyes, 428 F.3d at 192 n.3 (accepting B.I.A.’s argument regarding congressional intent to deter illegal immigration).

[cxlii]See Demandstein v. Att’y Gen., 639 F.3d 653, 658 (3d Cir. 2011) (quoting Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (B.I.A. 2011)) (“Just as with a voluntary departure, neither the government nor [Demandstein] himself could have a legitimate expectation ... that [he] could illegally reenter and resume a period of continuous physical presence.”).

[cxliii]For a discussion of congressional intent regarding cancellation of removal for aliens in unlawful presence, see supra note 82 and accompanying text.

[cxliv]See Demandstein, 639 F.3d at 655 (“Continuous physical presence also can end for reasons other than those set forth in § 1229b(d).”); see also Mendez-Reyes, 428 F.3d at 191-92 (finding that statute “does not by its terms provide the exclusive definition of break in physical presence”).

[cxlv]See Demandstein, 639 F.3d at 655-56 (noting that voluntary departure and withdrawal of application for admission terminate continuous physical presence); see also Mendez-Reyes, 428 F.3d at 193 (finding no error in IJ’s application of B.I.A. holding that voluntary departure terminates continuous physical presence to withdrawal of application for admission).

[cxlvi]See Demandstein, 639 F.3d at 655 (“Continuous physical presence also can end for reasons other than those set forth in § 1229b(d).”); see also Mendez-Reyes, 428 F.3d at 191-92 (finding that statute “does not by its terms provide the exclusive definition of break in physical presence”).

© Copyright 2012 Villanova University School of Law

About the Author

Juris Doctor Candidate, May 2013

Laura Ploeg is a third-year law student at Villanova University. She is an associate editor of the Villanova Law Review. Laura received her B.A. in Communication Studies, with a minor in Spanish, from West Chester University and graduated summa cum laude. She hopes to specialize in immigration and/or employment law.

610-519-8333

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.