June 17, 2019

Tenth Circuit: Board of Immigration Appeals Interpretation of Continuous-Physical-Presence Statute Entitled to Deference

The Tenth Circuit issued its opinion in Barrera-Quintero v. Holder on Thursday, November 15, 2012.

Hector Barrera-Quintero, a native and citizen of Mexico, entered the United States illegally the first time in 1990. In 2004, he was convicted in Utah for falsifying a government document, a fake Social Security card. He signed a Form I-826, and chose option 3, acknowledging he was in the United States illegally, waiving his right to a hearing, and requested return to Mexico. After leaving the U.S., he returned illegally a couple of months later.

In 2007, he was again arrested in Utah for using fraudulent documents. He applied for cancellation of removal under 8 U.S.C. § 1229b. The immigration judge found Barrera-Quintero ineligible for cancellation of removal because he did not have 10 continuous years of physical presence in the U.S. and his convictions in California for spousal abuse and in Utah involved crimes of moral turpitude. He sought review of a Board of Immigration Appeals (BIA) decision finding him ineligible for cancellation of removal.

The continuous physical presence statute, § 1229b(d)(2), sets forth a failure to maintain a continuous physical presence as a period exceeding 90 days. The BIA, however, has held that this is not the exclusive means of a break in continuous presence. It considers a “departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of section [1229b(b)(1)(A)].” The Tenth Circuit joined six other circuits in holding that interpretation reasonable and entitled to Chevron deference.

Barrera-Quintero argued that immigration officials did not adequately inform him of his rights in 2004 so he could not have voluntarily broken his continuous presence. The Tenth Circuit found it lacked jurisdiction to consider this argument as it concerned a discretionary agency decision.

The petition for review was dismissed in part for lack of jurisdiction and denied in part.

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