Juarez-Ramos v. Gonzales

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO JUAREZ-RAMOS,  Nos. 05-72472 Petitioner, 05-75364 v.  Agency No. ALBERTO R. GONZALES, Attorney A76-665-125 General, OPINION Respondent.  On Petitions for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 5, 2007—Pasadena, California Filed May 8, 2007 Before: Thomas G. Nelson, Susan P. Graber, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge T.G. Nelson

5359 5360 JUAREZ-RAMOS v. GONZALES

COUNSEL Leah W. Hurwitz, San Diego, California, for the petitioner.

Erica B. Miles, U.S. Department of Justice, Washington, D.C., for the respondent.

JUAREZ-RAMOS v. GONZALES 5361 OPINION T.G. NELSON, Circuit Judge: I The Board of Immigration Appeals (BIA) and an immigra- tion judge (IJ) held that an expedited removal order in 1999 interrupted Francisco Juarez-Ramos’s physical presence in the United States. Thus, they held that Juarez-Ramos could not establish the required ten years of physical presence necessary to be eligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1). In his petition for review, Juarez-Ramos argues that an expedited removal order should not interrupt an alien’s continuous physical presence because so little process is involved in issuing such orders. We have jurisdiction pursu- ant to 8 U.S.C. § 1252(a)(2)(B)1 and hold that an expedited removal order does interrupt continuous physical presence.

Thus, we deny the petition.

II Juarez-Ramos is a native and citizen of Mexico. He was found in this country and placed in removal proceedings on January 27, 2003. Asserting that he had been continuously physically present in the United States for ten years, having arrived in early January 1993, he sought cancellation of removal. The IJ concluded that such relief was unavailable to Juarez-Ramos because two events interrupted the ten-year period: a voluntary departure in 1994 and an expedited removal in 1999. Relying especially on the expedited removal in 1999, the BIA affirmed the IJ’s decision and denied Juarez- Ramos’s petition to reopen.

5362 JUAREZ-RAMOS v. GONZALES Juarez-Ramos contested the asserted voluntary departure in 1994. However, he admitted that he had been removed pursu- ant to an expedited removal order in 1999 when he sought to reenter the United States after a brief trip to Mexico. Because we conclude that expedited removal orders interrupt continu- ous physical presence, we deny his petition for review. And because the 1999 order alone defeats the petition, we need not reach Juarez-Ramos’s challenge to the government’s evidence regarding the alleged 1994 voluntary departure.

III [1] Since 1948, the Attorney General has had the discretion to suspend the deportation, or cancel the removal,2 of an alien who has been continuously, though illegally, present in the United States for ten years.3 To establish a decade of continu- ous physical presence in the United States, a deportable alien must avoid detection. Placement in formal removal proceed- ings automatically interrupts continuous physical presence.4 Similarly, the voluntary departure of an alien in lieu of formal proceedings interrupts the accrual of time.5 Brief, voluntary trips outside the United States, however, do not — in and of themselves — interrupt an alien’s continuous presence for the purpose of the statute.6 Such trips create the opportunity for detection when the alien attempts to reenter, however.

JUAREZ-RAMOS v. GONZALES 5363 If detection upon reentry occurs and the alien is not allowed to reenter — that is, officials simply turn the alien around at the border — this court has held that no interruption of con- tinuous physical presence occurs as long as the alien eventu- ally makes it back into this country.7 This is true even if several turnarounds occur.8 Moreover, it remains true even when border officials go to the trouble of documenting the turn- arounds.9 [2] This case presents the question whether a slightly more formal procedure at the border — an expedited removal — does interrupt continuous physical presence. We conclude that it does because, in at least one important way, expedited and formal removals are similar. Both carry with them an explicit statutory bar to readmission for a period of five years.10 This statutory bar reflects a congressional intent to sever an alien’s ties to this country.11 [3] Congress created a similar bar to readmission for aliens who had voluntarily departed.12 We relied on that bar when we distinguished a grant of voluntary departure from a simple turnaround at the border.13 Allowing an alien who had volun- tarily departed and returned, despite the bar, to continue to accrue continuous presence for the cancellation of removal 5364 JUAREZ-RAMOS v. GONZALES statute would, we concluded, “thwart Congress’s clear intent that such an alien be inadmissible for years following the date of his departure.”14 Thus, voluntary departures interrupt con- tinuous physical presence.

[4] The reasoning we used with respect to voluntary depar- tures applies to this situation involving expedited removals. If we were to allow aliens to continue to accrue physical pres- ence after being subject to expedited removal orders, we would thwart Congress’s intent — clearly expressed by stat- ute — that such aliens be barred from the country for five years.15 Accordingly, we hold that an expedited removal order inter- rupts an alien’s continuous physical presence in this country for the purpose of cancellation of removal relief.

We acknowledge that many differences between expedited and formal removals exist.16 In addition, many similarities between the expedited removal process and simple turn- arounds at the border exist.17 Those factors do not outweigh, JUAREZ-RAMOS v. GONZALES 5365 however, the fact that Congress clearly intended formal and expedited removals — but not mere turnarounds18 — to sever an alien’s ties with this country.

Our decision comports with previous decisions in which we, and the BIA, assumed that expedited removal orders interrupt continuous physical presence.19 However, it arguably contradicts — or at least limits — dicta in Tapia. The Tapia court stated, for example, that if it were to hold that being turned around at the border “interrupted an alien’s physical presence, [it] would arbitrarily reward those returning aliens who were particularly adept or lucky in their ability to cross the border without getting stopped.”20 Extending that logic, our decision today might be seen as “arbitrarily reward[ing]” those aliens lucky enough to have a border official turn them around without placing them in the expedited removal process.21 We can respond to such anticipated criticism only by noting that a line must be drawn somewhere. It is within Congress’s discretion to draw the line between denials of reentry that are memorialized and executed pursuant to an expedited removal order and those that are not. And that is what we conclude Congress has done. Accordingly, we hold that an expedited removal order interrupts an alien’s continuous physical pres- ence in this country for purposes of cancellation of removal relief.

PETITION DENIED.