19-2 Lulea v. Barr BIA Loprest, IJ A097 981 538 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of February, two thousand twenty.
PRESENT: JOHN M. WALKER, JR., BARRINGTON D. PARKER, SUSAN L. CARNEY, Circuit Judges. _____________________________________
PUIU VALI LULEA, Petitioner,
v. No. 19-2
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: MICHAEL P. DIRAIMONDO, DiRaimondo & Masi, PC, Bohemia, NY.
FOR RESPONDENT: ANDREW N. O’MALLEY, Senior Litigation Counsel (Joseph Hunt, Assistant Attorney General; Cindy S. Ferrier, Assistant Director, on the brief), for the Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is GRANTED.
Petitioner Puiu Vali Lulea, a native and citizen of Romania,
seeks review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”) denying Lulea’s application for
cancellation of removal, relief available to certain nonpermanent
residents. In re Puiu Vali Lulea, No. A 097 981 538 (B.I.A. Dec. 7,
2018), aff’g No. A 097 981 538 (Immig. Ct. N.Y.C. Oct. 31, 2017).
We assume the parties’ familiarity with the underlying facts and
procedural history in this case. Under the circumstances of this
case, we have reviewed the IJ’s decision as modified by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005).
At the outset, Lulea claims that the IJ who issued the removal
order in 2017 lacked jurisdiction because a different IJ presided
over the hearings, which were conducted in 2013. No authority
establishes that an alien is entitled to have a particular IJ
render a decision in a matter. Here, the second IJ familiarized
himself with the record before issuing a decision. See 8 C.F.R.
§ 1208.2(b) (notice to appear vests jurisdiction in immigration
court and “immigration judges”). The regulations do not specify
that a notice to appear vests jurisdiction in proceedings before
2 a particular judge. Accordingly, the fact that a second IJ issued
the decision does not invalidate the resulting order or provide a
basis for remand.
Other considerations, however, require us to remand the cause
for further consideration of Lulea’s eligibility for cancellation
of removal. Lulea was served with a Notice to Appear (“NTA”) in
May 2007 for overstaying his student visa. He then sought
cancellation of removal. A non-resident alien like Lulea may
establish eligibility for cancellation of removal if, among other
requirements, he can demonstrate 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). Although Lulea appears to have been
physically present in this country after 2007, the statutory “stop-
time” rule provides that “any period of . . . continuous physical
presence in the United States shall be deemed to end . . . when
the alien is served with a notice to appear.” Id. § 1229b(d)(1)(A).
In addition, the applicable statute directs that “[a]n alien shall
be considered to have failed to maintain continuous physical
presence in the United States . . . if the alien 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).
Thus, to be eligible for cancellation of removal, Lulea had to
3 show he was continuously physically present in the United States
from May 1997 to May 2007.
Although our jurisdiction to review the denial of
cancellation is limited, see 8 U.S.C. § 1252(a)(2)(B)(i), (D), we
have jurisdiction to review the agency’s “nondiscretionary, or
purely legal, decisions regarding an alien’s eligibility” for that
relief. Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir. 2005). The
applicable standards of review are well established. See Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual
findings for substantial evidence and questions of law and
application of law to fact de novo).
The agency found Lulea credible but concluded that he was
ineligible for cancellation of removal because, in the agency’s
view, he did not show by a preponderance of the evidence that the
extensive time he spent working on a Florida-based Princess Cruises
ship and the 54 days he spent in Romania between 1997 and 2007 did
not total more than 180 days outside of the United States. The
fact that Lulea has not left the country since May 2000 is not in
dispute, nor is the fact that he spent 54 days in Romania between
1997 and 2000. The only remaining question is whether, from 1997
through 2000, Lulea can be considered to have departed the United
States while working on the Princess Cruises ships. We conclude
that we cannot review the agency’s determination without its
4 explanation as to what, in its view, constitutes a departure from
the United States where, as here, the applicant credibly testified
that most, if not all, of his time working on the U.S-based line
was spent on routes between U.S. ports.
The agency found credible Lulea’s testimony that he worked on
ships that traveled between Florida and Alaska, and that he passed
through the Panama Canal and made stops in California and
Washington State. The agency also found credible Lulea’s testimony
that, during the times between 1997 to 2000 that he was not on the
Alaska cruises, he worked on other cruises that took place in and
around Florida and cruises from Florida to Puerto Rico. It also
credited Lulea’s testimony that, when he had time off and
disembarked, he stayed in Florida for at least several months each
time, living in an apartment he rented. Although the documents do
not indicate the routes traveled, he provided documentary evidence
of his employment on ships during these voyages. Lulea also
testified that he did not recall ever docking in a non-U.S. port,
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19-2 Lulea v. Barr BIA Loprest, IJ A097 981 538 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of February, two thousand twenty.
PRESENT: JOHN M. WALKER, JR., BARRINGTON D. PARKER, SUSAN L. CARNEY, Circuit Judges. _____________________________________
PUIU VALI LULEA, Petitioner,
v. No. 19-2
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: MICHAEL P. DIRAIMONDO, DiRaimondo & Masi, PC, Bohemia, NY.
FOR RESPONDENT: ANDREW N. O’MALLEY, Senior Litigation Counsel (Joseph Hunt, Assistant Attorney General; Cindy S. Ferrier, Assistant Director, on the brief), for the Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is GRANTED.
Petitioner Puiu Vali Lulea, a native and citizen of Romania,
seeks review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”) denying Lulea’s application for
cancellation of removal, relief available to certain nonpermanent
residents. In re Puiu Vali Lulea, No. A 097 981 538 (B.I.A. Dec. 7,
2018), aff’g No. A 097 981 538 (Immig. Ct. N.Y.C. Oct. 31, 2017).
We assume the parties’ familiarity with the underlying facts and
procedural history in this case. Under the circumstances of this
case, we have reviewed the IJ’s decision as modified by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
Cir. 2005).
At the outset, Lulea claims that the IJ who issued the removal
order in 2017 lacked jurisdiction because a different IJ presided
over the hearings, which were conducted in 2013. No authority
establishes that an alien is entitled to have a particular IJ
render a decision in a matter. Here, the second IJ familiarized
himself with the record before issuing a decision. See 8 C.F.R.
§ 1208.2(b) (notice to appear vests jurisdiction in immigration
court and “immigration judges”). The regulations do not specify
that a notice to appear vests jurisdiction in proceedings before
2 a particular judge. Accordingly, the fact that a second IJ issued
the decision does not invalidate the resulting order or provide a
basis for remand.
Other considerations, however, require us to remand the cause
for further consideration of Lulea’s eligibility for cancellation
of removal. Lulea was served with a Notice to Appear (“NTA”) in
May 2007 for overstaying his student visa. He then sought
cancellation of removal. A non-resident alien like Lulea may
establish eligibility for cancellation of removal if, among other
requirements, he can demonstrate 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). Although Lulea appears to have been
physically present in this country after 2007, the statutory “stop-
time” rule provides that “any period of . . . continuous physical
presence in the United States shall be deemed to end . . . when
the alien is served with a notice to appear.” Id. § 1229b(d)(1)(A).
In addition, the applicable statute directs that “[a]n alien shall
be considered to have failed to maintain continuous physical
presence in the United States . . . if the alien 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).
Thus, to be eligible for cancellation of removal, Lulea had to
3 show he was continuously physically present in the United States
from May 1997 to May 2007.
Although our jurisdiction to review the denial of
cancellation is limited, see 8 U.S.C. § 1252(a)(2)(B)(i), (D), we
have jurisdiction to review the agency’s “nondiscretionary, or
purely legal, decisions regarding an alien’s eligibility” for that
relief. Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir. 2005). The
applicable standards of review are well established. See Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing factual
findings for substantial evidence and questions of law and
application of law to fact de novo).
The agency found Lulea credible but concluded that he was
ineligible for cancellation of removal because, in the agency’s
view, he did not show by a preponderance of the evidence that the
extensive time he spent working on a Florida-based Princess Cruises
ship and the 54 days he spent in Romania between 1997 and 2007 did
not total more than 180 days outside of the United States. The
fact that Lulea has not left the country since May 2000 is not in
dispute, nor is the fact that he spent 54 days in Romania between
1997 and 2000. The only remaining question is whether, from 1997
through 2000, Lulea can be considered to have departed the United
States while working on the Princess Cruises ships. We conclude
that we cannot review the agency’s determination without its
4 explanation as to what, in its view, constitutes a departure from
the United States where, as here, the applicant credibly testified
that most, if not all, of his time working on the U.S-based line
was spent on routes between U.S. ports.
The agency found credible Lulea’s testimony that he worked on
ships that traveled between Florida and Alaska, and that he passed
through the Panama Canal and made stops in California and
Washington State. The agency also found credible Lulea’s testimony
that, during the times between 1997 to 2000 that he was not on the
Alaska cruises, he worked on other cruises that took place in and
around Florida and cruises from Florida to Puerto Rico. It also
credited Lulea’s testimony that, when he had time off and
disembarked, he stayed in Florida for at least several months each
time, living in an apartment he rented. Although the documents do
not indicate the routes traveled, he provided documentary evidence
of his employment on ships during these voyages. Lulea also
testified that he did not recall ever docking in a non-U.S. port,
although he knew the cruise line had routes that stopped at non-
U.S. ports.
The agency found that Lulea did not carry his burden of
showing the absence of any aggregate break in his continuous
presence in the United States during the years he worked on cruise
ships. It considered “passage through international waters to be
5 a departure from the United States.” Special App’x at 5. The agency
cited no legal authority for the proposition that traveling on a
ship voyaging between U.S. ports constitutes a statutory
“departure” from the United States whenever the ship crosses
outside of U.S. territorial waters, however briefly. Lulea argues
that his trips between U.S. ports did not constitute such
“departures.” This interpretive task presents a question of law
for the agency to address in the first instance.
In its decision, the agency also relied on its view that “the
record is inconclusive as to the route this cruise ship traveled
and the port cities this cruise ship visited.” Special App’x at 5.
Lulea’s inability to provide the details of precise locations and
specific times during which each voyage occurred in the late 1990s
may not necessarily preclude him from demonstrating continuous
physical presence. We agree with the Seventh Circuit that
“[p]erfect recollection isn’t part of the burden of proving
continuous residence . . . A witness’s testimony may reveal a bad
memory without necessarily vitiating his testimony and so
preventing him from carrying his burden of proof.” Lopez-Esparza
v. Holder, 770 F.3d 606, 609–10 (7th Cir. 2014).
We therefore remand the cause to allow the agency to clarify
what constitutes a statutory departure from the United States under
these circumstances. Although the IJ provided an alternative basis
6 for its denial of relief to Lulea, the BIA did not reach that
determination. Accordingly, that alternative basis—whether the
years Lulea spent as a “crewman” can be considered in determining
physical presence—is not currently before us.
For the foregoing reasons, the petition for review is GRANTED,
the BIA’s decision is VACATED, and the cause is REMANDED for
further proceedings consistent with this Order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court