The News From the Courts columns are written by Maria Bjornerud, an immigration attorney with an office in Southaven, MS.  Originally from Russia, Ms. Bjornerud is liscensed to practice law in TN and MS.  She can be contacted via email at mbjorne@msn.com.

CUELLAR-LOPEZ v. GONZALES, No. 04-2959, 2005 U.S. App. LEXIS 23078 (7th Cir. 2005) holds that when an IJ’s opinion contains both reviewable and nonreviewable grounds and the BIA affirms without opinion, the court can  properly remand to the BIA so that it can clarify the basis of its holding.

JUDGES: FLAUM, BAUER, WOOD:

After living in the United States continuously for 18 years, Petitioner briefly left the country for a trip to Mexico. After staying in Mexico for ten days, Petitioner came back and when questioned by the immigration authorities presented a false U.S. birth certificate to document her immigration status. The immigration officials allowed her in the United States under humanitarian parole because of her three minor children and instituted removal proceedings.

Petitioner applied for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b). The IJ found that Petitioner was statutorily barred from cancellation of removal under INA § 101(f)(3), 8 U.S.C. § 1101(f)(3)because she was unable to meet the statutory requirement of being "physically present" in the U.S. for ten years and lacked "good moral character" because of her unlawful reentry. Alternatively, the IJ found that even if Petitioner was not statutorily barred, her application should be denied as a mater of discretion for lack of good moral character. The BIA affirmed without an opinion. Due to streamlining of the case, the BIA did not explain on what grounds it affirmed the IJ's decision.

The court found that the basis for the BIA affirmation was critical to determining whether the court had jurisdiction to decide the appeal. The court stressed that it would not have jurisdiction to review any judgment regarding the granting of relief under section 1229(b) (cancellation of removal), which is discretionary in nature. If the BIA affirmed because the IJ had found Petitioner statutorily barred from cancellation as a result of the continuous physical presence and believed it unnecessary to reach the question whether the IJ had abused his discretion in finding lack of good moral character, the court would have jurisdiction to review the interpretive question.

Under 8 U.S.C. § 1229b(d)(2), INA § 240A(d)(2), an 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. Notwithstanding this 90-day requirement, however, the IJ found a break in physical presence when Petitioner left the country for 10 days. In reaching this conclusion, the IJ relied on theBIA's decision in In re Romalez-Alcaide, 23 I & N Dec. 423 (BIA 2000), which found that a voluntary departure under the threat of deportation or removal proceedings could constitute a break in the physical presence requirement of § 1229b(b), even if the break was less than 90 days.

The BIA did not explain whether it affirmed the IJ’s opinion based on his discretionary decision or on his interpretation of the statute. The court examined the BIA’s own regulations and concluded that because orders affirming without opinion did not necessarily imply approval of all of the reasoning of that decision, they ddi signify the Board's conclusion that any errors in the decision of the immigration judge or the Service were harmless or nonmaterial. 8 C.F.R. § 1003.1(e)(4)(ii). Therefore, summarily affirmation of the IJ’s decision was not equivalent to "adoption" of the IJ's opinion.

The court followed the position of the majority of circuits that the proper disposition when an IJ opinion contains both reviewable and nonreviewable grounds was to remand to the BIA so that it could clarify the basis of its holding. See Lanza v. Ashcroft, 389 F.3d 917, 919-20, 932 (9th Cir. 2004).

The court warned that it did not mean that the court’s jurisdiction must be determined only on the basis of the BIA's decision, and the court could never hear an appeal of a removal hearing without first remanding to the BIA for an explanation of the affirmation. Where the only issues the petitioner is raising are legal in nature, the court clearly has jurisdiction to hear an appeal.

The court remanded to the BIA for clarification of the basis of its decision.

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NOVA CARMONA et al v. GONZALES, No. 03-70703, 2005 U.S. App. LEXIS 22966 (9^th Cir. 2005) holds that smuggling one’s own children is not a bar for finding  good moral character under INA § 244, 8 U.S.C. § 1254(a)(1)(1996).

JUDGES: TROTT, KLEINFELD, POLLAK:

Petitioner, the father, and his twin daughters appealed BIA denial of their petitions for suspension of deportation. IJ found that Petitioner lacked the "good moral character" statutorily required to be eligible for suspension of deportation, and that the twins lacked the seven years of continuous physical presence in the United States.

Petitioner and his daughters entered without inspection in 1987, when the twins were less than two years old. In 1994, their mother took the children, against their wishes, back to Mexico and abandoned them there. Petitioner arranged to unlawfully bring his daughters back to the United States four or five months after the twins had been taken to Mexico by their mother. In 1996, the INS initiated deportation proceedings. The petitioners conceded illegal entry to the United States and petitioned for suspensions of deportation.

The IJ found that Petitioner had participated in "smuggling" of his daughters back into the United States from Mexico in 1994, and concluded that Petitioner did not possess the good moral character required for suspension of deportation. The IJ also found that twins’ stay in Mexico and "smuggled" reentry precluded finding of continuous seven years of "physical presence" necessary for suspension of deportation. The IJ ruled neither father nor twins were eligible for suspensions of deportation.

The court found that record supported the IJ's finding that Petitioner actively engaged in "smuggling" his daughters back into the United States. However, Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), established that "smuggling" one's own children does not trigger the per se moral character bar. Since the record was not clear whether Petitioner also smuggled his sister who accompanied his daughters to the United States, which would preclude finding of a good moral character, the court remanded to the BIA for further proceeding. The court also remanded on the issue of continuous physical presence of the twins. While it is undisputed that the twins were absent from the United States for four or five months, the petition for review argued that the IJ ruled against twins not because of their absence but because their reentry was unlawful and that the IJ counted Petitioner’s "smuggling" not only against him but against his daughters as well. The court remanded to the IJ to clarify his decision.