Gad Demandstein v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: February 24, 2011
• Docket: 10-1230
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 10-1230 ___________

GAD DEMANDSTEIN, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (A071-875-923) Immigration Judge: Honorable Annie S. Garcy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 23, 2011

Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges

(Opinion filed February 24, 2011 ) ___________

OPINION ___________

PER CURIAM.

Gad Demandstein, a native and citizen of Israel, petitions for review of a final

order of removal. For the reasons that follow, we hold that the record supports the Board

of Immigration Appeals‟ (“BIA”) determination that Demandstein is ineligible for cancellation of removal under INA § 240A(b)(1), and will deny the petition for review.

I.

Demandstein, formerly “Gad Yahalomi,” first entered the United States in 1987 on

a visitor visa and overstayed. In 1990 and 1991, he again entered as a visitor and

overstayed each time. In 2004, Demandstein applied for an adjustment of status based on

an employer‟s approved immigrant petition for an alien worker. The Department of

Homeland Security (“DHS”) denied the request to adjust status because Demandstein

failed to submit an affidavit detailing his past attempts to enter the United States, and

because he was arrested in 1992 for attempting to smuggle another alien into this country.

In 2007, DHS served a Notice to Appear, charging Demandstein as inadmissible

for being present without being admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), and as

an alien who knowingly encouraged or assisted another alien in trying to enter the United

States illegally, id. § 1182(a)(6)(E)(i). In proceedings before an Immigration Judge

(“IJ”), Demandstein conceded both grounds and he was deemed inadmissible as charged.

Demandstein applied for cancellation of removal under INA § 240A(b)(1), 8

U.S.C. § 1229b(b)(1), which permits the Attorney General to cancel removal if an

inadmissible alien meets certain requirements, including a showing that he “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.” 8 U.S.C. § 1229b(b)(1)(A). DHS

moved to pretermit Demandstein‟s application on the ground that he cannot make this

showing. It argued that, because Demandstein withdrew an application for admission to 2 the United States in 1999 when he was refused entry at the Canadian border, the

continuity of his period of physical presence terminated at that time. Consequently, DHS

argued, Demandstein cannot show ten continuous years of presence prior to being served

with the Notice to Appear in 2007.

The IJ granted DHS‟s motion, concluding from the evidence presented at an

evidentiary hearing on the issue that Demandstein “knowingly withdrew his application

for admission [in 1999] and terminated his period of continuous physical presence by

doing so.” A.R. at 49. The IJ ordered removal to Israel. The BIA dismissed

Demandstein‟s appeal. It found that his “actions show that the withdrawal of [his]

application for admission, in lieu of a formal determination of admissibility, was made

with the understanding that [he] had no legitimate expectation that he could legally

reenter the United States and resume his continuous physical presence in this country.”

A.R. at 4. Consequently, the BIA held that Demandstein is ineligible for cancellation of

removal. Demandstein timely filed a petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a) to review the question of

Demandstein‟s statutory eligibility for cancellation of removal. See Okeke v. Gonzales,

407 F.3d 585, 588 n.4 (3d Cir. 2005); Mendez-Reyes v. Att‟y Gen., 428 F.3d 187, 189

(3d Cir. 2005). “Where, as here, the BIA issues a decision on the merits and not simply a

summary affirmance, we review the BIA‟s, not the IJ‟s, decision.” Li v. Att‟y Gen., 400

F.3d 157, 162 (3d Cir. 2005). “We review the BIA‟s legal determinations de novo, 3 subject to established principles of deference.” Wang v. Ashcroft, 368 F.3d 347, 349 (3d

Cir. 2004). “We apply substantial evidence review to agency findings of fact, departing

from factual findings only where a reasonable adjudicator would be compelled to arrive

at a contrary conclusion.” Mendez-Reyes, 428 F.3d at 191.

Demandstein argues on appeal that he did not knowingly withdraw his application

for admission to this country in 1999, and therefore did not end his period of continuous

physical presence under § 1229b(b)(1)(A), because he retained a legitimate expectation

that he could reenter the United States and resume his period of continuous presence. We

discern no error in the BIA‟s rejection of this argument.

“[A]n alien applying for cancellation of removal must establish at least ten years

of continuous physical presence in the United States under § 1229b(b)(1)(A).” Mendez-

Reyes, 428 F.3d at 191. “Section 1229b(d) sets forth two situations in which continuous

presence is deemed to have been broken.” Id. First, physical presence ends when an

alien is served a notice to appear or has committed an applicable criminal offense. 8

U.S.C. § 1229b(d)(1). Second, an alien fails to maintain continuous physical presence if

he has departed from the United States “for any period in excess of 90 days or for any

periods in the aggregate exceeding 180 days.” Id. § 1229b(d)(2).

Continuous physical presence also can end for reasons other than those set forth in

§ 1229b(d). For example, the BIA has held that continuous presence is broken when an

alien voluntarily departs under threat of removal proceedings. See Matter of Romalez-

Alcaide, 23 I & N Dec. 423, 429 (BIA 2002). When an “alien leaves with the knowledge 4 that he does so in lieu of being placed in proceedings[,] … [t]here is no legitimate

expectation by either of the parties that an alien could illegally reenter and resume a

period of continuous physical presence.” Id. This Court has approved of the reasoning in

Romalez-Alcaide as a permissible construction of § 1229b. Mendez-Reyes, 428 F.3d at

192. Further, we held in Mendez-Reyes that an alien‟s withdrawal of an application for

admission to the United States, inasmuch as it is identical in effect to an acceptance of

voluntary departure in lieu of removal proceedings, terminates an alien‟s continuous

physical presence for purposes of § 1229b(b)(1)(A). Id. at 193.

As the BIA observed, the issue here “is whether [Demandstein], upon returning

from a [brief] trip to Canada [in 1999], knowingly withdrew his application for admission

to the United States in lieu of a formal determination of inadmissibility, so that [his]

continuous physical presence in this country was terminated and he was rendered

statutorily ineligible for cancellation[.]” A.R. at 3. The IJ held an evidentiary hearing on

the issue, and Demandstein testified at the hearing. The BIA summarized the pertinent

facts established before the IJ as follows:

It is undisputed that [Demandstein] was refused permission to enter the United States at the Canadian border [in 1999] and told that his [non-immigrant] visa had been cancelled. [Demandstein] was advised by an immigration attorney to return to Israel and apply for a new visa to enter the United States. [Demandstein] signed a formal withdrawal of his application for admission which explained that he was doing so in lieu of a formal determination of admissibility, although [Demandstein] now claims that he did not understand what he was signing. [Demandstein] returned to Israel [for approximately two months] and obtained a new passport 5 under a different name. [Demandstein] testified that he applied for a new visa but apparently abandoned the application after he was told the process would take several months. [Demandstein] returned to the United States without a valid entry visa after bypassing the [Canadian] border checkpoint by walking into this country through the woods, without inspection.

A.R. at 3-4 (citation to the record and footnote omitted).

At the time he was refused entry at the border checkpoint, Demandstein signed a

two-page form titled “Withdrawal of Application for Admission/Consular Notification”

(Form I-275). Demandstein concedes that his signature appears on the Form I-275 that

DHS submitted into evidence before the IJ. This document reflects that Demandstein‟s

visa was cancelled, that he had chosen to withdraw his application for admission, and that

his admissibility was in question because of “Alien smuggling 1992.” A.R. at 161.

Demandstein‟s signature on the Form appears directly under the following language:

I understand that my admissibility is questioned for the above reasons, which I have read or which have been read to me in the English language. I request that I be permitted to withdraw my application for admission and return abroad. I understand that my voluntary withdrawal of my application for admission is in lieu of a formal determination concerning my admissibility … by an immigration officer.

A.R. at 162. There is no dispute that Demandstein fully understands English.

The BIA rejected Demandstein‟s argument that he unknowingly withdrew the

application for admission, explaining that the argument “was undermined by

[Demandstein‟s] conduct in returning to Israel to obtain a new passport under a different

name, his decision not to pursue a new visa, and his evasion of border authorities upon 6 reentering the United States.” A.R. at 4. The BIA found that Demandstein‟s withdrawal

“was made with the understanding that [he] had no legitimate expectation that he could

legally reenter the United States and resume his continuous physical presence in this

country.” Id.

The record supports the BIA‟s findings. In addition to the undisputed evidence

that he signed Form I-275, Demandstein‟s actions provide ample support for the finding

that he knowingly withdrew the application for admission in lieu of a proceeding on

admissibility, with the consequence that he could not expect to resume his continuous

physical presence after doing so. Demandstein devotes much of his argument on this

appeal to highlighting portions of the administrative record -- mainly in the form of his

own testimony before the IJ -- which he believes support a finding that he did not

knowingly withdraw the application for admission. His argument fails, however, in light

of the limited scope of this Court‟s review. In considering the BIA‟s determination, we

must “uphold the findings of the BIA to the extent that they are supported by reasonable,

substantial and probative evidence on the record considered as a whole, and will reverse

those findings only if there is evidence so compelling that no reasonable factfinder could

conclude as the BIA did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).

Consequently, even accepting that a factfinder could conclude that there is some evidence

of record to support Demandstein‟s position, he has not shown that the record as a whole

compels a finding that his withdrawal of the application for admission was unknowing.

Furthermore, our holding in Mendez-Reyes -- that withdrawal of an application for 7 admission in lieu of a determination of admissibility ends continuous physical presence --

controls the legal effect of Demandstein‟s actions. We observed in Mendez-Reyes that

whether an alien is granted permission to withdraw an application for admission lies

within the Attorney General‟s discretion and is not merely a unilateral decision on the

alien‟s part. 428 F.3d at 193. Further, the alien in Mendez-Reyes, like Demandstein,

signed a form acknowledging his voluntary withdrawal of the application for admission

in lieu of a determination on admissibility. Id. An alien‟s “acquisition of permission to

withdraw his application is identical to being granted voluntary departure insofar as [he]

obtained that permission in order to avoid the perils of removal proceedings,” and thus it

terminates the period of continuous physical presence. Id.

Demandstein argues that his circumstances can be distinguished from Mendez-

Reyes. He concedes that he signed Form I-275, but he claims that the circumstances

surrounding the signing, including that he was refused admission at the border and told to

reapply for a visa in Israel rather than being paroled into this country, show that he did

not fully understand the import of withdrawing the application for admission, and

therefore he retained an expectation that he could reenter and resume his continuous

physical presence. Demandstein argues that his case should be viewed as similar to those

in which an alien is turned away at the border and later reenters without inspection, a

scenario that would not serve to break the period of continuous physical presence.

Demandstein‟s attempt to evade the precedential force of Mendez-Reyes is

unpersuasive. Courts have recognized that “continuous physical presence is not 8 interrupted if a person is merely stopped at the border and turned away without any more

formality.” Valadez-Munoz v. Holder, 623 F.3d 1304, 1311 (9th Cir. 2010); see

Ascencio-Rodriguez v. Holder, 595 F.3d 105, 111 (2d Cir. 2010) (“Although no Court of

Appeals has rejected the central holding of In re Romalez-Alcaide, several have held that

it does not apply in cases where an alien is simply turned away at the border”). In Matter

of Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005), the BIA held, consistent with circuit

court precedent, that that being turned away at the border without formal acceptance of

voluntary departure does not break continuous physical presence. Id. at 805. The BIA

made clear, however, that “an 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 there is evidence that the alien … was offered and accepted the

opportunity to withdraw his or her application for admission[.]” Id. (emphasis added).

Demandstein was not merely turned away at the border. Instead, border officials

cancelled the visa that he presented, noted that his admissibility was in question due to a

prior arrest, and presented Form I-275. There is no evidence that Demandstein could

have failed to appreciate the language of Form I-275, which, given his signature on the

document, is sufficient to establish that he voluntarily requested permission to withdraw

his application and return abroad, and that he did so in lieu of a proceeding to determine

his admissibility. Had Demandstein “allowed immigration proceedings to be initiated

against him in 199[9], his continuous physical presence would have been automatically

terminated under § 1229c(d)(1),” Mendez-Reyes, 428 F.3d at 193, and thus, rather than 9 face certain interruption of the continuous-presence period, Demandstein elected to

withdraw the application for admission and return to Israel to apply for a new visa. But

“[j]ust as with a voluntary departure, neither the government nor [Demandstein] himself

could have a „legitimate expectation . . . that [he] could illegally reenter and resume a

period of continuous physical presence.‟” Id. (quoting Romalez-Alcaide, 23 I & N Dec.

at 429). Demandstein, therefore, cannot “benefit from the fact that he managed to

illegally reenter the United States before the 90-day time frame expired[.]” Id.

III.

In sum, we find no error in the BIA‟s determination that Demandstein is unable to

satisfy the ten-year continuous physical presence requirement of § 1229b(b)(1)(A), and is

therefore ineligible for the relief of cancellation of removal. Accordingly, we will deny

the petition for review.