First Circuit Finds Departure under Subsequently-Reopened Removal Order Breaks Physical Presence for TPS

The First Circuit has determined that an individual who departed the United States for 98 days under an in absentia removal order broke his continuous physical presence for the purpose of Temporary Protected Status. Although an Immigration Judge rescinded the removal order, the Board of Immigration Appeals later determined that the rescission was inappropriate. The First Circuit left open the possibility that a properly reopened removal order might negate the interruption to physical presence.

The full text of Machado Siagaran v. Barr:

http://media.ca1.uscourts.gov/pdf.opinions/19-1282P-01A.pdf

Eighth Circuit Finds that Voluntary Return Breaks Continuous Physical Presence

The Eighth Circuit has determined that a petitioner who waived his right to a hearing before an Immigration Judge and who voluntarily returned to Mexico thereafter had broken his continuous physical presence for the purpose of applying for cancellation of removal.  The court further concluded that the failure to comply with 8 C.F.R. § 240.25 (which contains the required advisals for voluntary departure) did not preclude a finding of a voluntary departure under threat of deportation sufficient to break the ten-year period of continuous presence.  

The full text of Rodriguez-Labato v. Sessions can be found here:

http://media.ca8.uscourts.gov/opndir/17/08/161623P.pdf

Board of Immigration Appeals Construes Physical Presence Requirements for NACARA

The Board of Immigration Appeals had determined that when an applicant for NACARA commits more than one act that renders them removable, the continuous physical presence requirement must be applied to the last removable act.  Thus, when an applicant enters the United States without inspection and subsequently commits a crime that renders him removable, he must establish the requisite physical presence beginning on the date that the criminal act rendered him removable.  In the instant case, the applicant committed a removable crime in 2012 which subjected him to the heightened standard for NACARA.  Because ten years had not elapsed since the offense, he could not establish the requisite physical presence. 

The full text of Matter of Castro-Lopez can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/12/02/3854.pdf

BIA Issues Two Decisions on Continuous Physical Presence

In a pair of companion cases, the Board of Immigration Appeals (BIA) clarified when a voluntary departure or voluntary return breaks a non-citizen's continuous physical presence for the purpose of ascertaining eligibility for cancellation of removal for non-lawful permanent residents. The BIA stated that a voluntary departure or return will not break an applicant's continuous physical presence, if, at the time of the departure, the applicant had the right to seek relief from removal before an Immigration Judge and was not informed of this right.  In other words, there must be some indication that the applicant, as part of a formal process, accepted voluntary return in lieu of being placed in removal proceedings. 

Evidence that the applicant was photographed or fingerprinted at the time of the departure is not sufficient to demonstrate the requisite formality of the process.  The BIA concluded "that where an alien has a right to a hearing before an Immigration Judge, there must be reliable testimonial and/or documentary evidence in the record to establish that the alien was informed of that right and waived it before a voluntary departure will be considered a sufficiently formal process to break his or her physical presence."  Thus, when evaluating whether a departure breaks an applicant's continuous physical presence, the Immigration Judge should consider (1) the date and place of the encounter underlying the purported presence-breaking departure; (2) the possibility that the alien was alternatively subject to exclusion, deportation, or removal proceedings in which there was a right to a hearing before an Immigration Judge; and (3) the formality of the process used, including how the threat of proceedings was communicated to the alien, what advisals were given, and whether the alien had knowledge that the agreement to depart was in lieu of being placed in proceedings.  Interestingly, the BIA noted that the Government attorney will typically be in a better position to offer documentary evidence regarding the formality of any departure.

The full text of Matter of Castrejon-Colino can be found here: http://www.justice.gov/eoir/file/788746/download

The full text of Matter of Garcia-Ramirez can be found here: http://www.justice.gov/eoir/file/788751/download