By Sarah Flinn
The Board of Immigration Appeals (BIA) recently affirmed an immigration judge’s decision to deny an application for cancellation of removal due to a break in the necessary ten year continuous physical presence requirement. Matter of Velasquez-Cruz, 26 I&N Dec. 458 (BIA 2014). The migrant in this case, Ms. Rosa Isela Velasquez-Cruz, was apprehended in the United States twice within just a few days. Subsequent to apprehensions on August 9, 2004 and August 11, 2004, Ms. Velasquez-Cruz pled guilty to illegal entry in violation of section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012) (“INA” or “the Act”). Additionally, after each conviction Ms. Velasquez-Cruz left the country, however she returned to the U.S. both times. Following a notice to appear issued on March 15, 2010, Ms. Velasquez-Cruz applied for cancellation of removal, contending that she could establish ten years of continuous physical presence as required by INA § 240A(b)(1)(A).
The question presented by Ms. Velasquez-Cruz’s application for cancellation of removal was whether her two previous departures following her convictions for the § 275(a)(1) violations interrupted the ten year continuous physical presence required by § 240A(d)(1). Ms. Velasquez-Cruz claimed that she could prove the ten year requirement beginning in 1988 and completed prior to an unrelated departure in 1998 and the two departures following her convictions in 2004. Section 240A(d)(2) provides that a break in continuous physical presence occurs when a migrant departs the United States for any period in excess of 90 days or for any periods exceeding 180 days in the aggregate. However, in a prior case the BIA concluded that the requirements listed under § 240A(d)(2) are not exclusive of all situations in which a continuous physical presence could be interrupted. Specifically, in Matter of Avilez, 23 I&N Dec. 799, 805-06 (BIA 2005), the Board held that a migrant’s continuous physical presence was interrupted when the alien was determined to be inadmissible to the United States following any formal, documented process.
Additionally, both the United States Courts of Appeals for the Second and Ninth Circuits have addressed situations in which a migrant’s continuous physical presence can be interrupted. In Ascencio-Rodriguez v. Holder, 595 F.3d 105, 113-14 (2d Cir. 2010) the court concluded that Ascencio-Rodriguez’s arrest and conviction for illegal entry to the United States followed by his return to Mexico constituted a break in his continuous physical presence. Id. at 113. Furthermore, Ascencio-Rodriguez’s guilty plea to illegal entry to the United States and subsequent conviction were akin (“functional equivalent”) to an admission of facts that rendered him inadmissible to the U.S. Id. at 113-15.
The Ninth Circuit held that a similar sequence of events constituted a break in continuous physical presence in Zarate v. Holder, 671 F.3d 1132, 1133 (9th Cir. 2012). Jose Angel Gomez Zarate (“Gomez” as referred to by the court) was arrested and convicted for possession of fraudulent documents in an attempt to enter the United States illegally. Id. The court held that unlike a simple turn-around at the border, Gomez’s use of false identification to obtain illegal entry as well as his ensuing arrest, conviction, incarceration, and eventual departure from the United States established a break in continuous, physical presence. Id. at 1136-37.
Because Ms. Velasquez-Cruz was already in the country when she was apprehended, she argued that her case was distinguishable from the cases of Gomez and Ascencio-Rodriguez. Matter of Velasquez-Cruz, 26 I&N Dec. at 462. Furthermore, she argued that she should be eligible for cancellation of removal because she has never been found to be inadmissible and in 2004 she was not provided with the legal advice that she could obtain a hearing before an Immigration Judge. Id. Despite the distinguishing characteristics of Ms. Velasquez-Cruz’s case from those previously decided, the BIA held that Ms. Velasquez-Cruz’s departures following her convictions of illegal entry established a break in her continuous physical presence. Id. at 463. The BIA concluded that the fact that Ms. Velasquez-Cruz was not apprehended “literally at the border” should not be a determining factor in her case. Id. at 462. Further, as contemplated by Matter of Avilez, the criminal proceedings at which Ms. Velasquez-Cruz was convicted of illegal entry constituted formal, documented processes during which she pleaded guilty to crimes that were sufficient to “establish her inadmissibility.” Id. at 463. Finally, while the BIA conceded that Ms. Velasquez-Cruz may not have been aware of her opportunity for a hearing, the dispositive factor in her case was the fact that she was convicted of illegal entry and subsequently left the United States, which constituted a break in continuous physical presence. Id.
Sarah Flinn is a current 1L student at the University of Denver. She will be completing an externship in Santiago, Chile for Summer 2015 and plans to continue studying Immigration when she returns. Ultimately, she hopes to work in the field of Immigration helping Latina youth that have been trafficked to the United States.
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