BIA creates rebuttable presumption for cancellation of removal applicants

By Alex Sheppard

On October 28, 2015, the Board of Immigration Appeals (BIA) decided the companion cases Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015), and Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), both of which addressed the burden of proof that rests on cancellation of removal applicants who are demonstrating continuous physical presence, a requirement for non-lawful permanent residents seeking this form of relief from removal. In the decisions, the BIA held that “[W]here an alien had the right to appear before an Immigration Judge, evidence that photographs and fingerprints were taken in conjunction with a voluntary departure or return is insufficient to break the alien’s continuous physical presence in the absence of evidence that he or she was informed of and waived the right to a hearing, regardless of whether the encounter occurred at or near the border.” Matter of Garcia-Ramirez, 26 I&N Dec. at 678; Matter of Castrejon-Colino, 26 I&N Dec. at 673. In so holding, the BIA is suggesting a rebuttable presumption that voluntary departure does not break continuous physical presence.

The factual and procedural history of both cases are sufficiently similar that they raise comparable analytical challenges. Both respondents are natives and citizens of Mexico, both were charged as aliens present in the United States without being admitted or paroled, and both were issued a Notice to Appear.Matter of Garcia-Ramirez, 26 I&N Dec. at 674-75; Matter of Castrejon-Colino, 26 I&N Dec. at 667-68. In immigration proceedings, the respondents submitted cancelation of removal applications, alleging, inter alia, continuous physical presence for 10 years. Matter of Garcia-Ramirez, 26 I&N Dec. at 675; Matter of Castrejon-Colino, 26 I&N Dec. at 668. In both cases, the Department of Homeland Security (DHS) offered into evidence encounters at the border, in which the respondents were apprehended by the government, photographed, fingerprinted, and returned to Mexico. Matter of Garcia-Ramirez, 26 I&N Dec. at 675; Matter of Castrejon-Colino, 26 I&N Dec. at 668. In each case the Immigration Judge ruled that these encounters broke the respondents’ 10-year continuous physical presence requirement, and denied the cancellation of removal applications. Matter of Garcia-Ramirez, 26 I&N Dec. at 675; Matter of Castrejon-Colino, 26 I&N Dec. at 668. Both respondents appealed to the BIA under the same argument – that the brief interaction and departure was not the result of a formal process sufficient to break continuous physical presence for cancelation of removal purposes. Matter of Garcia-Ramirez, 26 I&N Dec. at 675; Matter of Castrejon-Colino, 26 I&N Dec. at 668.

Cancellation of removal is a form of relief from removal in which an inadmissible or deportable alien appearing in front of an Immigration Judge may ask for an adjustment of status to that of a permanent resident. See INA §240A. One of the requirements undocumented aliens must meet to qualify for cancellation of removal is that the alien has been “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application,” or immediately preceding the issuance of a Notice to Appear, whichever comes first. INA §§240A(b)(1)(A); (d)(1). In each companion case, the Notice to Appear terminated the time-accrual period.

Continuous physical presence for cancellation of removal purposes is defined under 8 CFR § 244.1. Addressing absences from the United States that do not break the continuous physical presence requirement, the rule reads:

(1) Each such absence was of short duration and reasonably calculated to accomplish the purpose(s) for the absence;

(2) The absence was not the result of an order of deportation, an order of voluntary departure, or an administrative grant of voluntary departure without the institution of deportation proceedings; and

(3) The purposes for the absence from the United States or actions while outside of the United States were not contrary to law.

The BIA, along with the courts, has held that voluntary departure, however brief, will break continuous physical presence if there is evidence that the alien was made aware that failing to voluntarily return would result in formal removal proceedings. Matter of Castrejon-Colino, 26 I. & N. Dec. at 670 (citing Reyes-Sanchez v. Holder, 646 F.3d 493, 498 (7th Cir. 2011)). In an attempt to clarify this matter, the BIA in Matter of Avilez ruled that “[A]n immigration official’s refusal to admit an alien at a land border port of entry will not constitute a break in the alien’s continuous physical presence,” unless, among other things, the alien is subjected to a “formal, documented process pursuant to which the alien was determined to be inadmissible to the United States.” 23 I&N Dec. at 805 (emphasis added). The Board in Matter of Avilez went on to describe the evidence that might suggest an alien has been subjected to such a “formal, documented process” as including “photographs, fingerprints, or other appropriate forms and official records of the DHS.” Id. at 806.

Despite identifying potential evidence of breaks to the physical presence in Matter of Avilez, the BIA in Matter of Garcia-Ramirez and Matter of Castrejon-Colino raised the bar. Evidence of photographs and fingerprints taken by immigration officials, the Board concluded, was “insufficient to meet the requirements of Matter of Avilez without any evidence that it was associated with a legally enforced refusal of admission and return.” Matter of Garcia-Ramirez, I&N 26 at 676 (citing Matter of Castrejon-Colino, 26 I&N 667 (BIA 2015)). Both cases were remanded to allow the respondents’ cancellation of removal applications to be decided on the facts. Matter of Garcia-Ramirez, 26 I&N Dec. at 678; Matter of Castrejon-Colino, 26 I&N at 673.

At the crux of these companion cases is the burden of proof imposed on cancellation of removal applicants. The applicant for cancellation of removal bears the burden of proving eligibility under each requirement to the satisfaction of the Immigration Judge. INA §240(c)(4). However, the BIA in Matter of Garcia-Ramirez, and its companion case Matter of Castrejon-Colino, makes an important distinction on the continuous physical presence requirement. Rather than ruling that the alien bears the burden of proving that she did not waive or was not informed of a right to a hearing in front of an Immigration Judge, the BIA explicitly ruled that voluntary departure after interaction with immigration officials does not break an “alien’s continuous physical presence in the absence of evidence that he or she was informed of and waived the right to a hearing.” Matter of Garcia-Ramirez, 26 I&N Dec. at 676 (emphasis added). This effectively creates a rebuttable presumption that voluntary departure does not break continuous physical presence for cancellation of removal purposes. In strengthening its position, the BIA in each companion case included a footnote conceding that DHS is much better poised to offer evidence in dispute. Id. at 677 n.4; Matter of Castrejon-Colino, I&N Dec. at 672 n.5. As the court articulated in Matter of Garcia-Ramirez,

Although the respondent ultimately bears the burden of proving his continuous physical presence, as we noted in Matter of Castrejon-Colino, 26 I&N Dec. at 672 n.5, the DHS is in a better position to fill gaps in the evidence and resolve any disputes by presenting documentation in its own records to show the formality of the process.

26 I&N Dec. at 677. The BIA here recognizes that while the burden of proof rests on the applicant for cancellation of removal, the applicant is often unable to offer any evidence other than testimony of events that may have happened long ago. The DHS in its official capacity, on the other hand, has the ability to produce documents which speak to many of the issues in question. For continuous physical presence purposes, failure of the DHS to rebut base assertions by the applicant now speaks louder than the applicant’s inability to produce more evidence.