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Mendez-Reyes v. Attorney General of the United States

November 1, 2005


On Petition for Review of an Order of the United States Department of Justice. Board of Immigration Appeals. (BIA No. A92-168-205).

The opinion of the court was delivered by: Van Antwerpen, Circuit Judge


Submitted Pursuant to Third Circuit LAR34.1(a) October 20, 2005



Only a brief recitation of the relevant facts is necessary in this case. Petitioner Gilberto Mendez-Reyes ("Petitioner"), a citizen of Mexico, claims that he has been residing in the United States since 1985. He also claims that he took a brief trip to Mexico in May, 1998. Upon arriving on an international flight at Newark Airport on May 16, 1998, he was encountered by immigration authorities, who referred him for secondary inspection, which was to take place on July 28, 1998. At his secondary inspection, Petitioner withdrew his application for admission to the United States and departed the country. He reentered in August of 1998, and removal proceedings based on his unlawful re-entry were initiated on September 6, 2002.

At these removal proceedings, Petitioner conceded that he was removable under 8 U.S.C. § 1182(a)(6)(A)(I) and applied for cancellation of removal. Relief in the form of cancellation of removal is within the discretion of the Attorney General pursuant to 8 U.S.C. § 1229b(b)(1). In order to qualify, the applicant must establish, among other things, continuous physical presence in the United States for at least 10 years immediately preceding the date of the application. 8 U.S.C. § 1229b(b)(1)(A). By oral decision dated September 5, 2003, the Immigration Judge ("IJ") determined that Petitioner could not establish 10 years of continuous physical presence because of the withdrawal of his application for admission and subsequent departure on July 28, 1998.*fn1 For the reasons set forth below, we find no error in the IJ's decision, and we will deny the Petition.


This Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(I). However, under the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, our jurisdiction is expanded to consider "constitutional claims or questions of law" notwithstanding the jurisdictional limitations of § 1252(a)(2)(B). 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 357-58 (3d Cir. 2005). Petitioner raises two related questions of law that are properly before us pursuant to § 1252(a)(2)(D): (1) whether the IJ erred in finding that the withdrawal of an application for admission constitutes a break in physical presence for the purposes of § 1229b(b)(1)(A); and (2) whether In re Romalez-Alcaide, 23 I & N Dec. 423 (BIA 2002), the agency decision on which the IJ relied, is entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

The government raises an additional jurisdictional argument, claiming that Petitioner's claims are rendered moot by his failure to abide by a voluntary departure order. In the underlying immigration proceedings, Petitioner applied for voluntary departure as an alternative to cancellation of removal. The BIA's November 10, 2004, order affirmed the IJ's denial of cancellation of removal and granted voluntary departure. The BIA ordered Petitioner to depart "within 30 days from the date of this order." The order also advised Petitioner of the consequences of failing to timely depart, which are set forth in 8 U.S.C. § 1229c(d): "If an alien is permitted to depart voluntarily under this section and fails to voluntarily depart the United States within the time period specified, the alien shall be . . . ineligible for a period of 10 years for any further relief under this section and section[] 1229b. . . ."

The government asserts that Petitioner failed to timely depart by December 10, 2004, and argues that Petitioner is now statutorily ineligible for cancellation of removal under § 1229c(d), thus mooting the petition for review of the agency's cancellation of removal decision. Cf. County of Morris v. Nationalist Mvmt., 273 F.3d 527, 533 (3d Cir. 2001)("The mootness doctrine is centrally concerned with the court's ability to grant effective relief."); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996) ("[I]f developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot.").

The agency has not had the opportunity to address the effect, if any, that Petitioner's apparent failure to timely depart may have on his previous application for cancellation of removal. As such, the record contains no facts pertaining to Petitioner's compliance (or non-compliance) with the statutory and regulatory requirements of voluntary departure, and we are ill-equipped as an appellate court to determine in the first instance whether § 1229c(d) is a bar to relief in this case.*fn2 Because we cannot be certain based on the record before us whether § 1229c(d) is applicable in this case, we cannot agree with the government that the requested relief (remand for further consideration of Petitioner's cancellation of removal claim) will be ineffective as a matter of law. Therefore, were we to conclude on the merits that the IJ's grounds for initially denying cancellation of removal were legally incorrect, we would remand for the agency to consider the government's arguments under § 1229c(d) in the first instance.


All of the foregoing being said, we find that Petitioner's allegations of legal error by the IJ are without merit, and further consideration of this case by the agency is thus unnecessary. In reviewing the merits of Petitioner's claims, this Court reviews the agency's conclusions of law de novo, "subject to established principles of deference." Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (citing Chevron, 467 U.S. 837). We apply substantial evidence review to agency findings of fact, departing from factual findings only where a reasonable adjudicator would be compelled to arrive at a contrary conclusion. 8 U.S.C. ยง 1252(b)(4)(B). Applying these ...

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