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Jesus Alberto Flores-Nova; Araceli Castano-Garduno, A/K/A Ariceli v. Attorney General of the United States

July 25, 2011

JESUS ALBERTO FLORES-NOVA; ARACELI CASTANO-GARDUNO, A/K/A ARICELI FLORES JESUS ALBERTO FLORES-NOVA; ARACELI CASTANO-GARDUNO,
PETITIONERS
v.
ATTORNEY GENERAL OF THE UNITED STATES



On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A099-690-362 and A094-941-559) Immigration Judge: Honorable Charles Honeyman

Per curiam.

IMG-138 PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) May 18, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.

OPINION

Jesus Alberto Flores-Nova and his wife, Araceli Castano-Garduno, both natives and citizens of Mexico, petition for review of the order of the Board of Immigration Appeals ("BIA") denying their application for cancellation of removal. For the reasons that follow, we will deny the petition on the merits.

Flores-Nova and Castano-Garduno came to the United States without a valid visa or other travel documents in June 1992 and August 1996, respectively. They have three American born children (ages five, ten, and eleven). In September 1999, the Petitioners travelled to Mexico to attend the funeral of Flores-Nova‟s father. While there, Araceli Castano-Garduno was injured in a serious fall. During the course of her medical treatment, Castano-Garduno learned that she was pregnant. She was placed in the care of a midwife, who restricted her to bed rest and directed her not to travel until the threat of miscarriage had abated. The Petitioners returned to the United States in February 2000.*fn1 When their religious worker visa applications were denied, the Department of Homeland Security placed the couple in consolidated removal proceedings for being present without authorization or parole. In 2008, the Petitioners applied for cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), claiming their continuous physical presence in the United States for ten years, the absence of any criminal statutory bars, and exceptional and extremely unusual hardship on their children if the Petitioners were removed to Mexico.

The Government filed a motion to pretermit the Petitioners‟ applications because they failed to maintain the requisite continuous presence in the United States because of their 176-day absence. The Petitioners conceded that they left the country for 176 days, but argued that special circumstances occasioned by Castano-Garduno‟s medical needs warranted excusing, or equitably tolling, their absence of physical presence in the United States for humanitarian reasons.

The Immigration Judge ("IJ") denied the Petitioners‟ applications for cancellation of removal, ordered them removed to Mexico, and granted voluntary departure.

Although sympathetic to the Petitioners‟ plight, the IJ found nothing in the "unambiguous language" of the statute or in caselaw that provided the kind of excuse or equitable tolling that the Petitioners requested. Pet‟rs‟ App. Vol. I at 50-51. The IJ pretermitted the Petitioners‟ applications because their prolonged stay in Mexico created a break in their continuous physical presence in the United States in excess of ninety days, and thus their continuous presence was deemed to have ended under 8 U.S.C. § 1229b(d)(2). The BIA affirmed and summarily dismissed the Petitioners‟ appeal. The Petitioners filed this timely petition for review.

The Petitioners raise four arguments in their petition for review: first, the BIA‟s strict construction of the continuous presence provision is impermissible and is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); second, the continuous presence provision violates the Petitioners‟ rights under the Equal Protection Clause; third, the United States is bound by international law to grant the petitioners a full hearing on their applications for cancellation of removal; and fourth, pretermitting the Petitioners‟ application for cancellation of removal without a hearing on the merits violated the due process rights of their American born children.

We have jurisdiction to review the constitutional claims and questions of law raised in this petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D).*fn2 Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). "We review the BIA‟s legal determinations de novo, subject to established principles of deference." Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).

We need not conduct a Chevron analysis regarding the first claim because there is nothing impermissible about the BIA‟s application of the stop-time rule contained in § 1229b(d)(2). See De Leon-Ochoa v. Att‟y Gen., 622 F.3d 341, 353 (3d Cir. 2010) (holding that the Chevron inquiry ends "if Congress has spoken directly to the question at issue, in which case 'both the agency and the court must give effect to the plain language of the statute.‟") (quoting Yusupov v. Att‟y Gen., 518 F.3d 185, 197 (3d Cir. 2008)). The question at issue here is whether § 1229b(d)(2) provides for an exception to the 90/180-day stop-time rule for humanitarian reasons. The Petitioners‟ argument that the provision is ambiguous is meritless.*fn3 A statute is not ambiguous "merely because it does not expressly forbid every possible mechanism for functional - but not actual - satisfaction of statutory requirements." De Leon-Ochoa v. Att‟y Gen., 622 F.3d at 353 (reviewing 8 U.S.C. § 1254a).

We conclude that Congress has directly spoken to the issue through the plain language of the statute. Section § 1229b(d)(2) provides that "[a]n alien shall be considered to have failed to maintain continuous physical presence in the United States . . . if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days." See also Mendez- Reyes v. Att‟y Gen., 428 F.3d 187, 191-92 (3d Cir. 2005) (construing § 1229b(d)(2) as setting forth the circumstances "under which continuous physical presence must be deemed to have been broken" and that "Congress has declared that a departure of more than 90 days shall constitute a break in physical presence . . . .") ...


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