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No. 04-1300

In the Supreme Court of the United States

JOSE ANTONIO MACIAS-PLACENCIA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

DONALD E. KEENER
ALISON R. DRUCKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether, for purposes of determining eligibility for cancellation of removal under 8 U.S.C. 1229b(b), a voluntary departure from the United States under threat of removal ends a period of continuous physical presence.

In the Supreme Court of the United States

No. 04-1300

JOSE ANTONIO MACIAS-PLACENCIA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1a-2a) is unreported. The order of the Board of Immigration Ap peals (Pet. App. 3a) and the decision of the immigration judge (Pet. App. 4a-12a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on October 26, 2004. The petition for a writ of certiorari was filed on January 18, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Before the enactment of the Illegal Immigration Re form and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (8 U.S.C. 1101 et seq.), one of the forms of discretionary relief avail able in immigration proceedings was suspension of deporta tion. To qualify for suspension of deportation, an alien was required to have maintained continuous physical presence in the United States for the seven-year period immediately preceding the date of the application. 8 U.S.C. 1254(a)(1) (1994). An alien who temporarily left the United States was not "considered to have failed to maintain continuous physi cal presence in the United States * * * if the absence from the United States was brief, casual, and innocent and did not meaningfully interrupt the continuous physical pres ence." 8 U.S.C. 1254(b)(2) (1994).

IIRIRA repealed the suspension-of-deportation provi sion and enacted a new form of discretionary relief entitled cancellation of removal. 8 U.S.C. 1229b. For an alien who is not a lawful permanent resident, eligibility for cancella tion of removal requires continuous physical presence in the United States for the ten-year period immediately preced ing the date of the application. The cancellation provision contains a section entitled "Termination of continuous pe riod," which specifies, inter alia, that the issuance of a No tice to Appear generally ends a period of continuous physi cal presence. 8 U.S.C. 1229b(d)(1). The provision also es tablishes that a single departure from the United States that lasts for more than 90 days, or multiple departures that last for more than 180 days in the aggregate, interrupt continuous physical presence. 8 U.S.C. 1229b(d)(2).

2. Petitioner is a native and citizen of Mexico. He en tered the United States without inspection on or about Sep tember 9, 1989. In August 2002, the Immigration and Nat uralization Service (INS) commenced removal proceedings against petitioner under 8 U.S.C. 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Pet. App. 5a-6a.1

a. At his removal hearing, petitioner conceded that he was removable from the United States, but he applied for cancellation of removal under 8 U.S.C. 1229b(b). Pet. App. 6a. Petitioner admitted in his application that, in 1994, he had been apprehended by immigration officials and was granted an administrative voluntary departure in lieu of being placed in deportation proceedings. See id. at 7a; 8 U.S.C. 1252(b) (1994) (allowing INS to grant administrative voluntary departure, without commencing deportation pro ceedings, to an alien who "admits to belonging to a class of aliens who are deportable").2 Petitioner also admitted that, approximately four hours after he voluntarily departed for Mexico, he returned to the United States without inspec tion. Pet. App. 7a.

The immigration judge (IJ) denied petitioner's appli cation for cancellation of removal on the ground that peti tioner was "precluded from establishing the requisite ten years continuous physical presence by virtue of his volun tary return [to Mexico] in 1994." Pet. App. 9a-10a. The IJ relied in part on Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003), which held that administrative voluntary departure terminates a period of continuous physical pres ence for purposes of determining eligibility for cancellation of removal. See Pet. App. 8a-9a. The IJ granted petitioner voluntary departure and ordered that he be removed if he did not timely depart. Id. at 11a-12a.

b. On June 24, 2004, the Board of Immigration Appeals (BIA) summarily affirmed the decision of the immigration judge. Pet. App. 3a.

3. Petitioner filed a petition for review in the court of appeals. On July 28, 2004, the court issued an order re questing petitioner to show cause why the petition for re view should not be summarily denied. Pet. App. 2a. On October 14, 2004, the court summarily denied the petition, ruling that the questions raised were "so insubstantial as not to require further argument." Ibid. (citing, inter alia, Vasquez-Lopez, supra).

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or another court of appeals. Further review is unwarranted.

1. Petitioner argues (Pet. 4-19) that the court of appeals erred in relying on Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003), as a basis for denying his petition for re view. In petitioner's view, Vasquez-Lopez erred in holding that an administrative voluntary departure in lieu of depor tation terminates continuous physical presence for pur poses of determining eligibility for cancellation of removal. Petitioner's argument is grounded in his contention (Pet. 6) that IIRIRA effected a "significant change in the continu ous physical presence" requirement.

Petitioner observes (Pet. 7) that, prior to IIRIRA, a "brief, casual, and innocent" departure from the United States did not interrupt a period of continuous physical presence under the pre-existing suspension-of-deportation provision. 8 U.S.C. 1254(b)(2) (1994). An administrative voluntary departure did not qualify as a "brief, casual, and innocent" departure, and therefore was deemed to end a period of continuous physical presence. See Hernandez- Luiz v. INS, 869 F.2d 496 (9th Cir. 1989). Petitioner ob serves that IIRIRA's cancellation-of-removal provision does not retain an explicit exception for "brief, casual, and innocent" departures, but specifies two relevant situations that terminate a period of continuous physical presence: (i) if the alien departs on any single occasion for a period ex ceeding 90 days or on multiple occasions for a cumulative period exceeding 180 days, 8 U.S.C. 1229b(d)(2); or (ii) if the alien is served with a Notice to Appear for removal pro ceedings, 8 U.S.C. 1229b(d)(1). Petitioner concludes (Pet. 7-9) that, after IIRIRA, no departure of less than 90 days can be considered to interrupt a period of continuous physi cal presence, at least as long as no Notice to Appear has been served by the time of the departure.

Petitioner's argument lacks merit and was correctly rejected by the court of appeals in Vasquez-Lopez. The fact that, under IIRIRA, any departure of more than 90 days terminates a period of continuous physical presence in no way establishes that no departure of less than 90 days ter minates a period of continuous physical presence. IIRIRA established an automatic rule for a departure that exceeds 90 days, but did not purport to establish the opposite auto matic rule for a departure of less than 90 days. Indeed, the provision establishing the automatic 90-day (and 180-day) ceiling is entitled "Treatment of certain breaks in pres ence," 8 U.S.C. 1229b(d)(2) (emphasis added), confirming that the provision does not establish an exclusive rule for determining whether a departure terminates a period of continuous physical presence. See Vasquez-Lopez, 343 F.3d at 972.

The "stop time" rule in 8 U.S.C. 1229b(d)(1)(A), which establishes that the issuance of a Notice to Appear gener ally is deemed to end a period of continuous physical pres ence, supports the conclusion that an administrative volun tary departure terminates a period of continuous physical presence. Petitioner does not dispute that a period of con tinuous physical presence is terminated by a voluntary de parture granted after the commencement of removal pro ceedings (i.e., after issuance of a Notice to Appear). An administrative voluntary departure in lieu of formal depor tation, granted before the commencement of removal pro ceedings, should be treated no differently.

Indeed, the statutory provision governing voluntary departures specifies that the grant of an administrative voluntary departure is "in lieu of" subjecting the alien to removal proceedings. 8 U.S.C. 1229c(a)(1). An alien who is granted administrative voluntary departure "in lieu of" being subject to removal proceedings-no less than an alien who is served with a Notice to Appear for removal proceedings-ceases to accrue "continue physical pres ence" in the United States for purposes of maintaining eli gibility for cancellation of removal. See Vasquez-Lopez, 343 F.3d at 973-974. The very premise of voluntary departure is that the alien agrees to leave the country (and not to re turn except as a lawful entrant). That premise is squarely inconsistent with maintaining continued physical presence within the country. See id. at 974. A contrary conclusion would give an alien who agrees to voluntarily depart an incentive to return unlawfully within 90 days so that he can maintain eligibility for cancellation of removal. Congress could not have intended that result.

2. The decisions below and in Vasquez-Lopez are con sistent with the BIA's decision in In re Romalez-Alcaide, 23 I. & N. Dec. 423 (2002) (en banc). The BIA concluded in Romalez-Alcaide that an administrative voluntary depar ture terminates a period of continuous physical presence for purposes of establishing eligibility for cancellation of removal.

The factual circumstances at issue in Romalez-Alcaide precisely parallel those in this case. There, as here, the alien was granted administrative voluntary departure in 1994, but he unlawfully returned within one or two days. 23 I. & N. Dec. at 423. In concluding that his voluntary depar ture terminated the alien's continuous physical presence, the BIA relied on: (i) the language and purpose of the rele vant statutory provisions, including the "stop time" provi sion, the provision establishing a 90-day and 180-day ceiling for departures, and the provisions governing voluntary de parture; (ii) the pre-IIRIRA decisions holding that volun tary departure under threat of deportation breaks a period of continuous physical presence; and (iii) regulations pro mulgated by the Attorney General under the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, Tit. II, § 203(b), 111 Stat. 2198, which provide that the voluntary departure of aliens subject to NACARA terminates their continuous physical presence in the United States, see 8 C.F.R. 240.64(b)(3). As the court in Vasquez-Lopez correctly concluded, the BIA's decision in Romalez-Alcaide is entitled to deference. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (observing that the "BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication") (internal quotation marks omitted).

3. Contrary to petitioner's argument (Pet. 14-15), the court of appeals' decisions below and in Vasquez-Lopez do not conflict with Rivera-Jimenez v. INS, 214 F.3d 1213 (10th Cir. 2000). In Rivera-Jimenez, the BIA had denied suspension of deportation on the ground that the alien's voluntary departure was not "brief, casual, and innocent" under pre-IIRIRA law, 8 U.S.C. 1254(b)(2) (1994). The court of appeals held that the case was governed by the post-IIRIRA rules for determining continuous physical presence rather than by pre-IIRIRA law. Rivera-Jimenez, 214 F.3d at 1216-1218. The court did not apply the post- IIRIRA rules, however, and made no suggestion that vol untary departure would fail to terminate continuous physi cal presence after IIRIRA. Instead, the court remanded to the BIA for the BIA's application in the first instance of the rules established by IIRIRA. Id. at 1218. In doing so, the court emphasized that there was, at that time, "no adminis trative interpretation" of the provisions enacted by IIRIRA, and that such an interpretation would be accorded considerable weight. Ibid. Accordingly, far from conflict ing with the court of appeals' decisions below and in Vasquez-Lopez, the decision in Rivera-Jimenez indicates that the Tenth Circuit would now agree with the holding of Vasquez-Lopez that the BIA's subsequent interpretation in Romalez-Alcaide is entitled to deference.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Acting Solicitor General

PETER D. KEISLER
Assistant Attorney General

DONALD E. KEENER
ALISON R. DRUCKER
Attorneys

MAY 2005

1 On March 1, 2003, the INS ceased to exist as an agency within the Department of Justice, and its enforcement functions were transferred to the Department of Homeland Security (DHS). Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. This brief continues to refer to the INS with respect to the events that predated the re organization.

2 Before the enactment of IIRIRA, one statutory provision gov- erned the grant of voluntary departure before the initiation of deporta tion proceedings (i.e., "administrative" voluntary departure), 8 U.S.C. 1252(b) (1994), and a separate provision governed the grant of voluntary departure during deportation proceedings, 8 U.S.C. 1254(e)(1) (1994). After IIRIRA, a single provision confers authority to grant voluntary departure both before and after the commencement of removal proceedings. See 8 U.S.C. 1229c(a)(1) (stating that the "Attorney General may permit an alien voluntarily to depart the United States * * * in lieu of being subject to [removal] proceedings * * * or prior to the completion of such proceedings").