Griffith by xuyuzhu

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									   ADMISSION AND CANCELLATION OF REMOVAL
   UNDER THE IMMIGRATION AND NATIONALITY
                    ACT
                                          Elwin Griffith*

                                 2005 MICH. ST. L. REV. 979



                                      TABLE OF CONTENTS

INTRODUCTION ..........................................................................................980
I. THE MEANING AND EFFECT OF “ADMISSION” ....................................985
     A. The Impact of the New Definition ............................................985
     B. The Returning Permanent Resident ..........................................993
II. CANCELLATION OF REMOVAL FOR PERMANENT RESIDENTS ...........1000
     A. Lawful Permanent Residence for at Least Five Years ............1000
     B. Continuous Residence for Seven Years .................................1003
     C. No Conviction for Aggravated Felony ....................................1005
III. CANCELLATION OF REMOVAL FOR NONPERMANENT RESIDENTS ...1013
     A. Conviction of an Offense .......................................................1013
     B. Good Moral Character ............................................................1016
     C. Development of the Hardship Criteria ...................................1018
     D. The 1996 Return to Exceptional and Extremely Unusual
          Hardship ..................................................................................1026
     E. Continuous Physical Presence .................................................1031
IV. TERMINATION OF CONTINUOUS RESIDENCE OR CONTINUOUS
     PHYSICAL PRESENCE ........................................................................1041
     A. The Reference to Section 212(a).............................................1044
     B. Commission and Conviction ...................................................1048
     C. The Problem of Retroactivity ..................................................1052
CONCLUSION ...........................................................................................1061




         *    Tallahassee Alumni Professor of Law, Florida State University College of Law.
980                         Michigan State Law Review                   [Vol. 2005:979


                                    INTRODUCTION

      There is a constant influx of aliens into the United States.1 All of them
must contend with the Immigration and Nationality Act (INA),2 which con-
tains the basic framework for the admission3 and removal of aliens.4 Even
before the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA)5 was passed, an alien was generally subject to the admission re-
quirements every time he came into the United States.6 One notable excep-
tion treated a returning lawful permanent resident as not making an entry if
he did not intend to depart from the United States.7 It remained for the Su-
preme Court to delineate the contours of the intent doctrine in Rosenberg v.
Fleuti8 by recognizing that there would be no entry under such circum-
stances if the alien’s trip abroad was “innocent, casual, and brief.”9 The
Court believed that Congress did not want a lawful permanent resident to
lose his status in the United States because of some insignificant excursion
abroad that merely punctuated his residence here.10 That was all well and


        1. For the 2004 fiscal year, 946,142 immigrants and 30,781,330 nonimmigrants
were admitted to the United States. See 2004 U.S. DEPT. OF HOMELAND SECURITY Y.B. OF
IMMIGR. STAT. 5, 23, http://uscis.gov/graphics/shared/statistics/yearbook/index.htm (follow
“Immigrants” hyperlink to Table 5 and “Temporary Admissions” hyperlink to Table 23) (last
visited Dec. 16, 2005).
        2. 8 U.S.C. §§ 1101-1537 (2000 & Supp. II 2002).
        3. Certain aliens are inadmissible and ineligible for visas. See Immigration and
Nationality Act (INA) § 212(a), 8 U S.C. § 1182(a) (2000 & Supp. II 2002).
        4. Certain aliens who have been admitted to the United States may be removed if
they fall within any of the deportable classes. See INA § 237(a), 8 USC § 1182(a) (2000 &
Supp. II 2002).
        5. Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996) (codified as amended in
scattered sections of 8 U.S.C.).
        6. The question was whether the alien was making an “entry,” defined as follows:
      The term Aentry@ means any coming of an alien into the United States, from a
      foreign port or place or from an outlying possession, whether voluntarily or oth-
      erwise, except that an alien having a lawful permanent residence in the United
      States shall not be regarded as making an entry into the United States for the
      purpose of the immigration laws if the alien proves to the satisfaction of the At-
      torney General that his departure to a foreign port or place or to an outlying pos-
      session was not intended or reasonably to be expected by him or his presence in a
      foreign port or place or in an outlying possession was not voluntary: Provided,
      That no person whose departure from the United States was occasioned by de-
      portation proceedings, extradition, or other legal process shall be held to be enti-
      tled to such exception.
INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994).
        7. See INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994).
        8. 374 U.S. 449 (1963).
        9. Id. at 461.
       10. The Court recognized the congressional purpose with the following language:
Winter]            INA Admission and Cancellation of Removal                              981

good until Congress amended the INA by substituting a definition of “ad-
mission” for one of “entry,”11 and then by adding a provision that a lawful
permanent resident would not be regarded as seeking admission unless he
fell within certain categories.12
       This substitution of definitions has produced its own problems. Al-
though the focus is now on “admission” rather than “entry,” the latter term
still appears in the definition of the former.13 This new approach has left
some doubts about congressional intent.14 The question remains whether an
alien must be regarded as seeking admission once he meets any of the re-
quirements of § 101(a)(13)(C).15 Congress seemed to have a strategy for
settling the issues relating to an alien’s intent, since one can no longer con-
sider the innocence, casualness, or brevity of an alien’s trip.16 The amended



       [W]e declare today simply that an innocent, casual, and brief excursion by a resi-
       dent alien outside this country=s borders may not have been “intended” as a de-
       parture disruptive of his resident alien status and therefore may not subject him
       to the consequences of an “entry” into the country on his return. The more civi-
       lized application of our immigration laws given recognition by Congress in §
       101(a)(13) and other provisions of the 1952 Act protects the resident alien from
       unsuspected risks and unintended consequences of such a wholly innocent ac-
       tion.
Id. at 462.
       11. See Pub. L. No. 104-208, § 301(a), 110 Stat. 3009-576 (1996) (codified at 8
U.S.C. § 1101(a)(13) (2000).
       12. See id.
       13. The new definition provides: “The terms ‘admission’ and ‘admitted’ mean, with
respect to an alien, the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.” INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A)
(2000).
       14. The basic question is whether the Fleuti factors still play a role in the definition
of “admission” because the term “entry” still appears in § 101(a)(13)(A). See STEPHEN H.
LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 519-25 (4th ed. 2005).
       15. It is clear that if the returning permanent resident does not fall within any of the
categories listed in § 101(a)(13)(C), he will not be treated as seeking admission. See INA §
101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (2000). But once any of the listed events occurs, it
is open to question whether the alien must be regarded as seeking admission. For example, if
the alien has been away for more than 180 days, one may question whether this is an auto-
matic admission issue. It has been suggested that “[t]he answer still would seem to depend
on whether the person has made an ‘entry.’” LEGOMSKY, supra note 14, at 524. In the final
analysis, one must decide whether Congress intended to replace the Fleuti doctrine with the
factors contained in § 101(a)(13)(C). Compare Tineo v. Ashcroft, 350 F.3d 382 (3d Cir.
2003), and In re Collado, 21 I. & N. Dec. 1061 (B.I.A. 1997), with Richardson v. Reno, 994
F. Supp. 1466 (S.D. Fla. 1998), rev’d on other grounds, 162 F.3d 1338 (11th Cir. 1998).
       16. Although the Fleuti language dealing with the innocence, casualness, or brevity
of an alien’s trip no longer appears in the new section 101(a)(13)(C), such language may still
be found in other provisions of the INA dealing with adjustment of status. See INA §
245A(a)(3)(B), 8 U.S.C. § 1255a(a)(3)(B) (2000) (“brief, casual, and innocent absences”);
INA § 245A(b)(3)(A), 8 U.S.C. § 1255a(b)(3)(A) (2000) (“brief and casual trips abroad”).
982                           Michigan State Law Review                     [Vol. 2005:979

statute was supposed to clarify the elements of admission; this Article will
discuss whether Congress has succeeded in its mission.
      This Article also will discuss the cancellation of removal provision,
which combines former sections 212(c) and 244 into one neat package in
section 240A.17 This new section mixes the bitter with the sweet, for al-
though there is no longer any hassle about the meaning of “domicile,” a
term which appeared in former section 212(c),18 questions still arise about
whether an alien can accrue seven years of residence under section240A(a)
even if he falls out of status after being admitted.19 The absolute prohibition
of relief to an alien who has been convicted of an aggravated felony20 has
brought its own problems, and this Article will examine the elements of a
crime of violence, which is just one category of an aggravated felony.21
      Certain nonpermanent residents also benefit from cancellation of re-
moval, but the avenues of relief are more stringent for them than for perma-
nent residents. Nonpermanent residents must have at least ten years of con-
tinuous physical presence and must show “exceptional and extremely un-
usual hardship” to a spouse, parent, or child who is either a citizen or a law-
ful permanent resident of the United States.22 A review of the cases under
this standard will show the difficulties inherent in the determination of an
alien=s eligibility for relief, especially in light of the pre-IIRIRA vacillation

       17. See INA § 240A, 8 U.S.C. § 1229b (2000).
       18. Section 212(c) previously read in pertinent part:
     Aliens lawfully admitted for permanent residence who temporarily proceeded
     abroad voluntarily and not under an order of deportation, and who are returning to
     a lawful unrelinquished domicile of seven consecutive years, may be admitted in
     the discretion of the Attorney General without regard to the provisions of subsec-
     tion (a) of this section (other than paragraphs (3) and (9)(C)).
INA § 212(c), 8 U.S.C. § 1182(c) (1994).
       19. Section 240A(a) provides as follows:
     The Attorney General may cancel removal in the case of an alien who is inadmis-
     sible or deportable from the United States if the alien B
     (1) has been an alien lawfully admitted for permanent residence for not less than 5
     years,
     (2) has resided in the United States continuously for 7 years after having been ad-
     mitted in any status, and
     (3) has not been convicted of any aggravated felony.
INA § 240A(a), 8 U.S.C. § 1229b(a) (2000). The problem is that once the alien has been
admitted, subsection (a)(2) does not require him to maintain lawful status.
       20. INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (2000).
       21. The term “aggravated felony” includes “a crime of violence (as defined in sec-
tion 16 of title 18, but not including a purely political offense) for which the term of impris-
onment at least one year [sic].” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F) (2000)
(footnote omitted). There are twenty-one classifications of offenses under § 101(a)(43).
       22. INA § 240A(b), 8 U.S.C. § 1229b(b) (2000). There is a special rule for battered
spouses or children, INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2) (2000), but this Article will
deal specifically with other nonpermanent residents. See INA § 240A(b)(1), 8 U.S.C. §
1229b(b)(1) (2000).
Winter]            INA Admission and Cancellation of Removal                              983

between the standard of extreme hardship and that of exceptional and ex-
tremely unusual hardship.23
      One of the greatest challenges in dealing with section 240A is the pro-
vision that terminates any period of continuous residence or continuous
physical presence in the United States. Although section 240A(d)(1) treats
an alien’s continuous residence and an alien’s continuous physical presence
as ending when the alien is served with a notice to appear or when the alien
commits an offense that renders him inadmissible under section 212(a) or
removable under section 237(a)(2), whichever comes earliest,24 there is
some disagreement about the effect of the transitional provisions in the
IIRIRA.25 It is often a question of whether an alien is entitled to have his
case considered under the pre-IIRIRA provisions, which in most cases are
more beneficial to the alien,26 or whether it is permissible to apply the
IIRIRA retroactively to a proceeding that has some connection to the past.
Any discussion of section 240A(d)(1) must include the reference to the time
when an alien commits an offense referred to in section 212(a) that renders
him inadmissible under section 212(a) or removable under sections
237(a)(2) or 237(a)(4).27 Since this is an event that can terminate an alien’s


       23. Section 240A(b), which deals with cancellation of removal for certain nonper-
manent residents, was intended to replace INA § 244(a), which covered suspension of depor-
tation. See INA § 244(a), 8 U.S.C. § 1254(a) (1994). The language of section 244(a) that
immediately preceded enactment of section 240A(b) imposed a standard of “extreme hard-
ship to the alien or to his spouse, parent, or child” if the alien was deportable under any law
except the provisions covering serious offenses in section 244(a)(2). INA § 244(a)(1), 8
U.S.C. § 1254(a)(1) (1994). Aliens deportable because of such offenses could get relief only
if deportation would result in “exceptional and extremely unusual hardship.” INA §
244(a)(2), 8 U.S.C. § 1254(a)(2) (1994).
       24. INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2000).
       25. Section 309(c)(5) of the IIRIRA provided in pertinent part: “Paragraphs (1) and
(2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous resi-
dence or physical presence) shall apply to notices to appear issued before, on, or after the
date of enactment of this Act.” Pub. L. No. 104-208, Div. C § 309(c)(5), 110 Stat. 3009-546,
3009-627 (1996). That section raised questions because, before the IIRIRA, deportation
cases began with an order to show cause and not a notice to appear. See INA § 242B, 8
U.S.C. § 1229b (1994). It remained for Congress to clarify that the IIRIRA’s rule applied to
suspension of deportation cases pending on the IIRIRA’s enactment, which, in the ordinary
course of events, would have originated with an order to show cause. See Nicaraguan Ad-
justment and Central American Relief Act, Pub. L. No. 105-100, § 203(a)(1), 111 Stat. 2160,
2196 (1997).
       26. An alien would prefer to be covered by section 244 of the INA because he might
conceivably qualify under the seven-year physical presence provision, which required a
showing of extreme hardship. See INA § 244(a)(1), 8 U.S.C. § 1254(a)(1). The new post-
IIRIRA rules have now increased the physical presence requirement to ten years and require
a showing of “exceptional and extremely unusual hardship.” See INA § 240A(b)(1)(A), (D),
8 U.S.C. § 1229b(b)(1)(A), (D) (2000).
       27. Section 240A(d)(1) of the INA provides as follows:
984                            Michigan State Law Review                      [Vol. 2005:979

continuous residence or continuous physical presence, the courts have not
found it easy to explain how the alien’s commission of a crime will render
the alien inadmissible in those cases where conviction is required for inad-
missibility or removability. Furthermore, one looks in vain for a reference
to section 212(a)(2) in section 237(a)(4), and thus the courts have had a
difficult time with that issue.28 This Article will explore how they have tried
to find a satisfactory compromise that seeks some role for statutory lan-
guage that seems redundant or otherwise misplaced.
      Even if an alien’s continuous period does not end under subsection
(d)(1), an alien may still run into trouble if he stays out of the United States
for more than ninety days at one time, or for more than 180 days in the ag-
gregate.29 Such an absence breaks the continuity of physical presence re-
quired of a nonpermanent resident under subsection (b)(1),30 but an alien
will sometimes argue that his temporary absence for less than the statutory
period does not interrupt his physical presence when he departs voluntarily
under the threat of deportation.31 Although the Board of Immigration Ap-
peals (BIA) and the courts have not been sympathetic to the alien’s plight in
this situation,32 there is a genuine need for clarification of section
240A(d)(2). This Article suggests that the INA must deal with the effect of
an alien’s departure under threat of removal. It is not enough to leave the
matter to implication.




     For purposes of this section, any period of continuous residence or continuous
     physical presence in the United States shall be deemed to end . . . when the alien is
     served a notice to appear under section 1229 (a) [239(a)] . . . or . . . when the alien
     has committed an offense referred to in section 1182(a)(2) [212(a)(2)] . . . that ren-
     ders the alien inadmissible to the United States under section 1182(a)(2)
     [212(a)(2)] . . . or removable from the United States under section 1227(a)(2)
     [237(a)(2)] or 1227(a)(4) [237(a)(4)] . . . , whichever is earliest.
INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2000).
      28. Section 237(a)(4) covers security and related grounds and that section relates to
a similar category found in section 212(a)(3), not section 212(a)(2). There is no offense
mentioned in section 212(a)(2) that renders an alien removable under section 237(a)(4).
Compare INA § 237(a)(4), 8 U.S.C. §1227(a)(4) (2000 & Supp. II 2002), with INA §
212(a)(3), 8 U.S.C. § 1182(a)(3) (2000 & Supp. II 2002).
      29. See INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2) (2000).
      30. See id.
      31. The argument is that if the alien managed to return despite his previous depar-
ture under threat of deportation, he should still be regarded as falling within the statute if his
absence did not exceed the statutory limits.
      32. See, e.g., Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Mireles-Valdez v.
Ashcroft, 349 F.3d 213 (5th Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.
2003) (per curiam); In re Romalez, 23 I. & N. Dec. 423 (BIA 2002).
Winter]            INA Admission and Cancellation of Removal                            985

                 I. THE MEANING AND EFFECT OF “ADMISSION”

A. The Impact of the New Definition

      Prior to the amendment of the INA in 1996, the term “entry” received
significant attention in the immigration context.33 For example, an alien
who had violated the immigration law could not be placed in deportation
proceedings unless he had made an entry.34 If such an alien had not made
an entry, he would find himself in exclusion proceedings, where he would
enjoy fewer procedural rights.35 An alien=s entry also played an important
role in other respects. An alien could be deported for entering without in-
spection36 or committing a crime of moral turpitude within five years after
entry.37 After the IIRIRA, the focus is no longer on the term “entry,” but
rather on “admission.” Although the IIRIRA replaced the definition of “en-
try” with a definition of “admission,”38 the new language still contains the
word “entry,” and that has raised questions about the current relevance of
that term.39


       33. See, e.g., Rosenberg v. Fleuti, 374 U.S. 449 (1963); Zhang v. Slattery, 55 F.3d
732 (2d Cir. 1995); In re Pierre, 14 I. & N. Dec. 467 (BIA 1973); In re Ching and Chen, 19 I.
& N. Dec. 203 (BIA 1984).
       34. The pre-IIRIRA statute reflected this approach. For example, an alien could be
deported if he was excludable at the time of entry, or if he was convicted of a crime involv-
ing moral turpitude committed within five years after entry. See INA § 241(a)(1), (4), 8
U.S.C. § 1251(a)(1), (4) (1994). With certain exceptions, any coming of an alien into the
United States constituted an entry, INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994), and
thus an alien who evaded inspection and made his way into the United States fell within that
category. See In re Z, 20 I. & N. Dec. 707 (BIA 1993); In re Pierre, 14 I. & N. Dec. 467
(BIA 1973). Once an alien entered, he could be removed from the United States only
through deportation proceedings. See Correa v. Thornburgh, 901 F.2d 1166 (2d Cir. 1990); 5
CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE § 65.01 (2000); LEGOMSKY,
supra note 14, at 496.
       35. The U.S. Supreme Court made the following classic statement about the distinc-
tion:
      [O]ur immigration laws have long made a distinction between those aliens who
      have come to our shores seeking admission . . . and those who are within the
      United States after an entry, irrespective of its legality. In the latter instance the
      Court has recognized additional rights and privileges not extended to those in the
      former category who are merely “on the threshold of initial entry.”
Leng May Ma v. Barber, 357 U.S. 185, 187 (1958); see also 5 GORDON ET AL., supra note
34, § 65.02(1), § 72.04 [12](b); Brian G. Slocum, The Immigration Rule of Lenity and Chev-
ron Deference, 17 GEO. IMMIGR. L.J. 515, 523-25 (2003).
       36. See INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994).
       37. See INA § 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (1994).
       38. See IIRIRA § 301(a), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-555 (1996)
(codified at INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A) (2000)).
       39. See, e.g., Tapia v. Ashcroft, 351 F.3d 795 (7th Cir. 2003); Tineo v. Ashcroft,
350 F.3d 382 (3d Cir. 2003); In re Collado, 21 I. & N. Dec. 1061 (BIA 1997).
986                         Michigan State Law Review                   [Vol. 2005:979

      The definition of “admission” has occasionally caused problems in the
deportation context. An alien is deportable if he is convicted of an aggra-
vated felony at anytime after admission.40 In In re Rosas,41 an alien who
entered the United States without inspection in 1979 had her status adjusted
in 1989 to that of a lawful permanent resident.42 In 1997, the alien was con-
victed of an aggravated felony. The BIA then had to decide whether the
alien had accomplished an admission within the meaning of section
237(a)(2)(A)(iii) when she later adjusted her status after entering without
inspection.43
      An adjustment of status to lawful permanent resident does not seem to
fall within the literal language of the definition of “admission” because on
adjustment the alien does not make an entry into the United States after “in-
spection and authorization.”44 He is already in the United States when he
seeks to adjust his status. In In re Rosas, the alien originally entered with-
out inspection and therefore could not have made a lawful entry at that time
as contemplated by the definition of “admission.”45 The next step was to go
to the time of the alien’s adjustment to determine whether the alien’s admis-
sion occurred then.46 Section 101(a)20 was of some help. The definition of
“lawfully admitted for permanent residence” found there recognizes that the
alien secures thereunder the privilege of residing permanently in the United
States as an immigrant.47 This privilege arises either as a result of action
taken at the border or a port of entry, or when the alien adjusts his status
later within the United States.48 When the alien falls within the latter cate-
gory, section 101(a)(20) recognizes him as “lawfully admitted for perma-
nent residence.”49 Both section 245(b)50 and section 245A(b)(1)51 authorize

       40. See INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (2000).
       41. 22 I. & N. Dec. 616 (BIA 1999).
       42. See id. at 616.
       43. See id. at 617.
       44. The alien did not make a lawful entry after “inspection and authorization by an
immigration officer,” as required by section 101(a)(13)(A) of the INA. 8 U.S.C. §
1101(a)(13)(A) (2000). The alien in Rosas entered without inspection and then adjusted her
status under § 245A to that of a lawful permanent resident. See Rosas, 22 I. & N. Dec. at
616.
       45. See id. at 617.
       46. See id. at 619-20.
       47. Section 101(a)(20) provides: “The term ‘lawfully admitted for permanent resi-
dence’ means the status of having been lawfully accorded the privilege of residing perma-
nently in the United States as an immigrant in accordance with the immigration laws, such
status not having changed.” INA § 101(a)(20), 8 U.S.C. § 1101(a)(20) (2000).
       48. See Rosas, 22 I. & N. Dec. at 619; 1 GORDON ET AL., supra note 34, §
1.03[2][f][1].
       49. The alien in Rosas had her status adjusted under § 245A(b) to that of “an alien
lawfully admitted for permanent residence.” Rosas, 22 I. & N. Dec. at 616.
       50. INA § 245(b), 8 U.S.C. § 1255(b) (2000).
       51. INA § 245A(b)(1), 8 U.S.C. § 1255a(b)(1) (2000).
Winter]            INA Admission and Cancellation of Removal                              987

an alien to secure adjustment of his status once he meets the necessary re-
quirements. The status addressed in both sections is that of a lawful perma-
nent resident and the terms “admission” and “admitted” appear in that con-
text.52 Similar references appear elsewhere in the statute.53 The drafters had
a field day with the term “admission,” but they did not take the time to re-
late it to adjustment of status. Nevertheless, the BIA decided in Rosas that
the alien’s date of admission was the date of adjustment, and the alien was
therefore subject to deportation for being convicted of a crime after admis-
sion.
       The term “admission” appears again in section 101(a)(13)(C), where
the statute recognizes that “[a]n alien lawfully admitted for permanent resi-
dence” should not be regarded as seeking admission when returning to the
United States unless he falls within one of the six categories outlined in that
section.54 If such an alien is not to be treated as someone seeking admis-
sion, it must be because section 101(a)(13)(C) regards him as having al-
ready been admitted as a lawful permanent resident. Once an alien achieves
that status, he maintains it and does not make a new admission unless he
meets one of the identified conditions.55
       Another link between admission and adjustment may be gleaned from
section 237, which sets out the grounds for removing an alien who has been
admitted to the United States.56 The first ground covers an alien who was
inadmissible “at the time of entry or adjustment of status.”57 This paragraph
reflects the drafters’ concession that the decision about admissibility can be
made either on the alien’s entry into the United States or at the time of the
alien’s adjustment.58
       Since an alien is deportable if he was inadmissible at the time of ad-
justment, it means that he is admitted when he adjusts his status to lawful
permanent residence, if not there would be no issue of inadmissibility. With
the IIRIRA came the shift in emphasis from the concept of “entry” to that of

        52. Id.
        53. See INA § 209(b), 8 U.S.C. § 1159(b) (1994) (“refugee admissions . . . available
. . . to adjust to the status of an alien lawfully admitted for permanent residence”); INA §
210(a)(2), 8 U.S.C. § 1160(a)(2) (1994) (adjustment available to status of alien “lawfully
admitted for permanent residence” for alien admitted for temporary residence).
        54. INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (2000).
        55. This is consistent with the definition of “lawfully admitted for permanent resi-
dence,” which indicates that an alien who has that status maintains it unless it is changed for
some reason. INA § 101(a)(20), 8 U.S.C. § 1101(a)(20) (2000). In terms of section
101(a)(13)(C), an alien’s status would change if one of the conditions applied. INA §
101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).
        56. There are six classes of deportable aliens. See INA § 237(a)(1)-(6), 8 U.S.C. §
1227(a)(1)-(6) (2000 & Supp. II 2002).
        57. INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A) (2000).
        58. The alien’s qualifications for admission are therefore subject to scrutiny on
either one of the occasions covered in section 237(a)(1)(A), i.e., entry or adjustment. See id.
988                          Michigan State Law Review                   [Vol. 2005:979

“admission.”59 The pre-IIRIRA doctrine recognized that an alien who made
an entry without inspection would be entitled to a deportation hearing rather
than an exclusion hearing, because he had already entered the United
States.60 The post-IIRIRA approach makes it impossible for an alien to be
deemed admitted if he enters without inspection, and such an alien will be
subject to removal proceedings on the ground that he was inadmissible.61 It
is in this context that one sees the utility in accepting as “admitted” an alien
who obtains his lawful residence status through adjustment. If the INA did
not treat such an alien as being admitted, he would for all intents and pur-
poses be in the same category as an alien who enters without inspection, and
therefore be subject to removal.62 In a Rosas-type case, moreover, an alien

        59. IIRIRA § 301(a), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-555 (1996) (codi-
fied at INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A) (2000)). The term “admission” is
still defined in terms of a “lawful entry.” INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).
The presence of the word “entry” in the definition raises a question about the continuing
viability of the Fleuti principle. See In re Collado, 21 I. & N. Dec. 1061 (BIA 1997);
LEGOMSKY, supra note 14, at 524.
        60. The pre-IIRIRA law recognized that an alien was deportable if he entered “with-
out inspection.” INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994). The post-IIRIRA
law now changes the focus and makes an uninspected alien subject to section 212, dealing
with inadmissible aliens. See INA § 212, 8 U.S.C. § 1182 (2000). Thus, an alien who has
not been inspected is inadmissible. See INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i)
(2000). This concept is carried forward in the definition of the term “removable,” which
states that “an alien not admitted is inadmissible” while an admitted alien “is deportable.”
INA § 240(e)(2), 8 U.S.C. § 1229a(e)(2) (2000).
        61. The Conference Report on the IIRIRA made the point that “[t]he current cate-
gory of persons who are deportable because they have made an entry without inspection will,
under the amendments made by section 301(c) of this bill, instead be considered inadmissible
under revised paragraph (6)(A) of subsection 212(a).” H.R. REP. NO. 104-828, at 208 (1996)
(Conf. Rep.). There is no evidence that Congress intended to apply section 212 dealing with
inadmissibility to aliens who became lawful permanent residents through adjustment of
status. Another congressional report reflected in the following language the seriousness of
being in the United States without inspection:
      Currently, aliens who have entered without inspection are deportable under section
      241(a)(1)(B). Under the new “admission” doctrine, such aliens will not be consid-
      ered to have been admitted, and thus, must be subject to a ground of inadmissibil-
      ity, rather than a ground of deportation, based on their presence without admission.
      (Deportation grounds will be reserved for aliens who have been admitted to the
      United States.)
H.R. REP. NO. 104-469, pt. 1, at 226 (1996).
        62. Under a pre-IIRIRA scenario, the alien in Rosas would have been subject to
deportation, rather than exclusion, for being convicted of an aggravated felony after entry.
See In re Rosas, 22 I. & N. Dec. 616, 621 (BIA 1999); INA § 241(a)(2)(A)(iii), 8 U.S.C. §
1251(a)(2)(A)(iii) (1994). She would have made an entry under the definition of former
section 101(a)(13), which covered an entry without inspection. See Rosas, 22 I. & N. at 621.
The term “entry” covered “any coming of an alien into the United States.” INA §
101(a)(13), 8 U.S.C. § 1101(a)(13) (1994); see also H.R. Rep. No. 104-469, pt. 1, at 226
(1996). There is no evidence that Congress intended to bring within the unadmitted group
aliens who had gained their lawful permanent resident status through adjustment. It is one
Winter]            INA Admission and Cancellation of Removal                               989

could not be deported for being convicted of an aggravated felony anytime
after admission because there would be no admission if the adjustment was
not recognized as such,63 and an entry without inspection would not qualify
either.64 Furthermore, if adjustment of status is not recognized as an admis-
sion for lawful permanent residents who previously entered without inspec-
tion, such residents would be ineligible for any type of relief that is re-
stricted to aliens who have been admitted to the United States.65 Thus, the
Rosas court=s treatment of adjustment under section 245A as an admission
for permanent residence carries out the congressional objective not only in
this context, but also in other scenarios where an alien seeks relief from
deportation.
       Soon after Rosas, the “admission” question was raised again in Shiva-
raman v. Ashcroft.66 Unlike the alien in Rosas, the alien in Shivaraman
entered lawfully as a nonimmigrant student, later adjusted his status, and
then was convicted of a crime that he had committed within five years after
his adjustment.67 It was left to the Ninth Circuit to decide whether the alien
was deportable because he had committed a crime within five years after the
date of admission.68
       Having treated the alien’s adjustment in Rosas as an admission to the
United States, the BIA wanted to maintain an air of consistency in Shivara-
man by taking the same approach. It found no basis for distinguishing
Rosas on the basis of the alien’s entry without inspection; nor was it both-
ered by the possibility in Shivaraman of having to choose between two


thing to say that an alien who sneaks into the United States should be treated as being outside
the pale and thus subject to the inadmissibility provision (§ 212(a)), rather than the removal
provision (§ 237(a)). It is quite another to extend that approach to someone who has legally
adjusted his status to that of a lawful permanent resident.
       63. The INA provides that “[a]ny alien who is convicted of an aggravated felony at
any time after admission is deportable.”             INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii) (2000).
       64. “Entry without inspection” is no longer a ground for deportation. See INA §
237(a), 8 U.S.C. § 1227(a) (2000 & Supp. II 2002).
       65. One of the criteria for cancellation of removal is that the alien “has resided in the
United States continuously for 7 years after having been admitted in any status.” INA §
240A(a)(2), 8 U.S.C. § 1229b(a)(2) (2000). If an alien’s adjustment is not recognized as an
admission, a lawful permanent resident enjoying his status through adjustment would cer-
tainly be in a unique category, one that recognizes the importance of lawful permanent resi-
dence but that does not admit the relevance of the process by which that status is secured.
       66. 360 F.3d 1142 (9th Cir. 2004).
       67. See id. at 1143.
       68. The competing dates for determining when the five-year period began were the
date when the alien entered the United States as a nonimmigrant student and the date when
the alien adjusted his status to that of a lawful permanent resident. See id. The alien must
have committed the crime “within five years . . . after the date of admission.” INA §
237(a)(2)(A)(i)(I), 8 U.S.C. § 1227(a)(2)(A)(i)(I) (2000).
990                         Michigan State Law Review                   [Vol. 2005:979

dates of admission.69 After all, the alien had entered lawfully as a student
and had followed that admission by later adjusting to lawful permanent
residence.
      The Ninth Circuit did not give any deference to the BIA’s construction
of the “date of admission,” because it viewed the plain language of the stat-
ute as saying clearly that the date of admission under section 237(a)(2)(A)(i)
was the date of the alien’s lawful entry.70 The only problem was that in
Shivaraman the alien had made two lawful entries, and the court had to de-
cide which entry would control for determining the beginning of the five-
year period within which an alien had to commit a crime to be deportable.
The Ninth Circuit had confronted a similar situation in Ocampo-Duran v.
Ashcroft71 except that, like the alien in Rosas, the alien in Ocampo-Duran
had adjusted his status after his entry without inspection, and the court ac-
cepted the adjustment date as the date of admission.72 The court did not
want to create “a loophole in the removal laws for aliens who enter the
country without inspection, adjust their status, and then commit aggravated
felonies.”73 It therefore had to interpret the phrase “lawfully admitted for
permanent residence” in section 101(a)(20) as an admission for the purpose
of determining whether the alien should be removed because of his aggra-
vated felony conviction.74 If the court had recognized “admission” under
section 101(a)(13)(A) as the exclusive definition in all contexts, it would
have meant that an alien who followed up his unlawful entry with adjust-
ment of status to lawful permanent residence would not be subject to re-
moval under section 237(a)(2)(A)(iii) because he would not have been ad-
mitted.75 The court did not want to produce a result that protected the
unlawful entrant, while subjecting the lawful entrant to removal because he
had been deemed admitted for purposes of the removal statue.
      It was clear from the principles expressed in Rosas and Ocampo-
Duran that the court in Shivaraman now had two possible dates of admis-
sion: the alien had effected an admission as a nonimmigrant under section
101(a)(13)(A) and, if Rosas and Ocampo-Duran were any guide, he had
also secured another admission by adjusting his status.76 Now the court
seemed to have a choice of admission dates. Nevertheless, what seemed

      69. See Shivaraman, 360 F.3d at 1145.
      70. See id. at 1148.
      71. 254 F.3d 1133 (9th Cir. 2001).
      72. See id. at 1134-35.
      73. Id. at 1135.
      74. See id. at 1134-35.
      75. The court in Ocampo-Duran rejected the “overly-narrow interpretation of §
237(a)(2)(A)(iii).” Id. at 1135.
      76. The alien was first admitted in 1989 as a nonimmigrant student and then ad-
justed his status to that of lawful permanent resident in 1997. See Shivaraman, 360 F.3d at
1143. He maintained lawful status at all times. See id.
Winter]            INA Admission and Cancellation of Removal                             991

like a choice turned out to be no choice at all. The court recognized that
“[f]or aliens like Shivaraman, who, under the Board’s construction, would
have two or more possible dates of ‘admission’ from which time could ac-
crue, the Board’s decision allows for an [immigration judge’s] exercise of
unbounded discretion with disparate effects and drastic immigration conse-
quences.”77 The court wanted to avoid the “subjective, malleable construc-
tion of ‘the date of admission.’”78 It did not think that it could bypass the
alien’s lawful entry pursuant to section 101(a)(13)(A) in favor of his later
adjustment to lawful permanent residence.79 The alien was being considered
for removal because his conviction was for a crime that he had committed
within five years after the date of admission.80 In the court’s view, that date
was when the alien entered as a nonimmigrant after inspection and authori-
zation. Therefore, it was not necessary for the court to concentrate on the
date of the alien’s attainment of permanent residence, and the court chided
the BIA for construing the statute in a way that would allow an immigration
judge to select the date of admission from “a multiplicity of possible dates”
and “at his apparent whim.”81 This was the BIA’s undoing. The BIA could
offer no rationale for selecting the alien’s adjustment date as the prevailing
benchmark for admission. At least in Rosas there was really no other op-
tion, because the alien’s entry without inspection had preceded the alien’s
adjustment, and another admission could not be found in the alien’s re-
cord.82
      The problem of choosing which date of admission should control for
purposes of deportability under section 237(a)(2)(A)(1) arose again in In re


        77. Id. at 1147.
        78. Id.
        79. This accentuates the difference between Rosas and Ocampo-Duran, and Shiva-
raman. In the first two cases, the alien first came into the United States without inspection.
See In re Rosas, 22 I. & N. Dec. 616, 616 (BIA 1999); Ocampo-Duran, 254 F.3d at 1134.
The BIA and the Ninth Circuit could not find an admission under those circumstances and
thus they could logically proceed to the adjustment phase without having to worry about
choosing between two possible dates of admission. On the other hand, the BIA offered no
rationale for ignoring the alien’s position in Shivaraman, where the alien first made a lawful
entry as a nonimmigrant after inspection and authorization pursuant to section 101(a)(13)(A)
of the INA. See Shivaraman, 360 F.3d at 1143. It was the court’s view that the date of that
first lawful entry was the date of admission for purposes of section 237(a)(2)(A)(1). See id.
at 1149.
        80. The statute seems to be pointing toward a single date of admission, rather than
creating choices for the court. The relevant consideration is commission of the crime within
five years after the date of admission. See INA § 237(a)(2)(A)(i)(I); 8 U.S.C. §
1227(a)(2)(A)(i)(I) (2000).
        81. Shivaraman, 360 F.3d at 1147.
        82. The alien in Rosas had her status adjusted to that of “an alien lawfully admitted
for permanent residence.” Rosas, 22 I. & N. Dec. at 623; see also INA § 245A(b)(1), 8
U.S.C. § 1255a(b)(1).
992                          Michigan State Law Review                   [Vol. 2005:979

Shanu.83 The BIA acknowledged in that case that the alien had two dates of
admission.84 He had been admitted first as a nonimmigrant, and later as an
immigrant on the date of his adjustment to lawful permanent residence.85
Like the Ninth Circuit in Shivaraman, the BIA had to decide whether it
would accept the alien’s first admission as a nonimmigrant as the control-
ling marker for determining if the alien had committed his crime within five
years after “the date of admission.” The BIA concluded that an alien was
removable if the crime was committed within five years after the date of any
admission “whether it be the first, last, or any other admission.”86
      The BIA recognized that the decision in Shivaraman was in some ten-
sion with its own,87 but found ample precedent for its approach in the pre-
IIRIRA decisions that recognized that commission of a crime within five
years after any entry would serve as a basis for exclusion or deportation.88
The Ninth Circuit in Shivaraman had found some satisfaction in the plain
language of the statute referring to the date of admission.89 In the court’s
view, there could be only one such date and in Shivaraman it was when the
alien entered lawfully as a nonimmigrant, rather than when he adjusted his
status to that of a lawful permanent resident.90 In Shanu, the BIA was not
prepared to accept this “first admission” strategy because it would protect
an alien who had committed a crime within five years after admission as an
immigrant if that alien had been admitted previously as a nonimmigrant.91
The same thing could be said about an alien who became a lawful perma-
nent resident through adjustment after being previously admitted as a non-
immigrant.92

       83. 23 I. & N. Dec. 754 (BIA 2005).
       84. See id. at 759.
       85. See id.
       86. Id.
       87. In Shanu, the BIA distinguished Shivaraman on the ground that the alien in the
latter case had maintained lawful nonimmigrant status from 1989 until the date of his ad-
justment in 1997. See id. at 760 n.4. On the other hand, there was no evidence in Shanu that
the alien had received any extensions of his nonimmigrant status after his admission as a
visitor in June 1989. See id.
       88. See Munoz-Casarez v. INS, 511 F.2d 947 (9th Cir. 1975); In re Sanchez, 17 I. &
N. Dec. 218 (BIA 1980); In re Medina, 15 I. & N. Dec. 611 (BIA 1976). As far back as
1933, the Supreme Court had interpreted the term “entry” in section 19 of the Immigration
Act of 1917 as meaning any entry into the United States. See United States ex rel Volpe v.
Smith, 289 U.S. 422 (1933).
       89. See Shivaraman v. Ashcroft, 360 F.3d 1142, 1148-49 (9th Cir. 2004).
       90. See id. at 1146.
       91. See Shanu, 23 I. & N. Dec. at 761.
       92. The BIA explained as follows: “[A]n alien who commits a crime involving
moral turpitude within 5 years after adjusting status has betrayed the trust of his national
community and violated the immigration laws no less severely than an alien who committed
the same crime less than 5 years after being admitted as a lawful permanent resident at the
border.” Id.
Winter]           INA Admission and Cancellation of Removal                         993

      In Shivaraman, the court observed that the BIA did not give any rea-
son in that case for selecting the later of the two “purported” admission
dates.93 One can hardly say the same thing about the BIA’s decision in
Shanu. It gave good reasons for rejecting the “first admission” approach,
among them being that admission as a nonimmigrant conceivably could
protect an alien who committed his crime shortly after his adjustment to
permanent residence, whereas an alien who had never been in the United
States would face removal for committing a crime within five years after his
one and only admission.94 It is not a matter, therefore, of choosing haphaz-
ardly among the various admission dates available, or of exercising discre-
tion arbitrarily. Rather, it is the principle of carrying out the congressional
will that aliens who violate the immigration laws should be subject to the
removal provision every time they are “admitted,” and that the result should
not be any different for aliens who seek adjustment to lawful permanent
residence.

B. The Returning Permanent Resident

      Before the enactment of the IIRIRA, section 101(a)(13) of the INA
governed the status of lawful permanent residents who were returning to the
United States.95 That section defined the term “entry” as any coming of an
alien into the United States, but provided an exception for a lawful perma-
nent resident whose “departure to a foreign port . . . was not intended or
reasonably to be expected by him.”96 This intent exception found its way
into the statute because of congressional concerns over the harsh application
of the reentry doctrine.97 If a lawful permanent resident could show that his

       93. Shivaraman, 360 F.3d at 1145.
       94. See Shanu, 23 I. & N. Dec. at 761.
       95. INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994).
       96. Id.
       97. The congressional concern with the returning resident was reflected in a House
report analyzing the immigration bill:
     Section 101(a)(13) defines the term “entry.” Frequent reference is made to the
     term “entry” in the immigration laws, and many consequences relating to the entry
     and departure of aliens flow from its use, but the term is not precisely defined in
     the present law. Normally an entry occurs when the alien crosses the border of the
     United States and makes a physical entry, and the question of whether an entry has
     been made is susceptible of a precise determination. However, for the purposes of
     determining the effect of a subsequent entry upon the status of an alien who has
     previously entered the United States and resided therein, the preciseness of the
     term “entry” has not been found to be as apparent. Earlier judicial constructions of
     the term in the immigration laws, as set forth in Volpe v. Smith (289 U.S. 422
     (1933)) generally held that the term “entry” included any coming of an alien from a
     foreign country to the United States whether such coming be the first or a subse-
     quent one. More recently, the courts have departed from the rigidity of that rule
     and have recognized that an alien does not make an entry upon his return to the
994                           Michigan State Law Review                      [Vol. 2005:979

departure was not intended, the exception would apply and the alien would
be treated as if he had never left the United States.
       Before too long it became clear that there had to be some judicial
clarification of the term “not intended.” The United States Supreme Court
rose to the occasion in Rosenberg v. Fleuti. In that case, the alien, a perma-
nent resident, returned to the United States after only a few hours in Mex-
ico.98 The INS then tried to deport him on the ground that he was exclud-
able at entry because he had a psychopathic personality.99 The Court found
in the alien’s favor by treating the alien’s departure as “not intended” be-
cause it was innocent, casual, and brief.100 The Court expressed the view
that “the insignificance of a brief trip to Mexico or Canada bears little ra-
tional relation to the punitive consequence of subsequent excludability.”101
The Court=s introduction of the “innocent, casual, and brief” criteria was a
defining moment in explaining the congressional purpose of reducing the
harsh effects of the reentry doctrine.102
       The IIRIRA, forsaking the previous definition of “entry,” replaced the
old section 101(a)(13) with one that contained a new definition of “admis-




      United States from a foreign country where he had no intent to leave the United
      States (Di Pasquale v. Karnuth, 158 F.2d 878 (C.C.A.2d 1947)), or did not leave
      the country voluntarily (Delgadillo v. Carmichael, 332 U.S. 388 (1947)). The bill
      defines the term “entry” as precisely as practicable, giving due recognition to the
      judicial precedents. Thus any coming of an alien from a foreign port or place or an
      outlying possession into the United States is to be considered an entry, whether
      voluntary or otherwise, unless the Attorney General is satisfied that the departure
      of the alien, other than a deportee, from this country was intentional or was not
      voluntary.
H.R. REP. NO. 82-1365, at 32 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1683-84.
       98. See Rosenberg v. Fleuti, 374 U.S. 449, 450 (1953).
       99. The INS alleged that the alien was deportable because he “was within one or
more of the classes of aliens excludable by the law existing at the time of [the alien’s] entry.”
Id. (quoting INA of 1952, ch. 477, § 241(a)(1), 66 Stat. 163, 204). At the time of his entry,
the alien was excludable as an alien “afflicted with psychopathic personality.” Id. (quoting
INA § 212(a)(4), 66 Stat. at 184). In this case, the alien was included in this category be-
cause he was a homosexual. Although the statute did not specifically include homosexuality
in the definition of “psychopathic personality,” Congress gave some indication of its intent
when it placed someone with such personality within the class of excludable aliens. A report
indicated that “[t]he provision for the exclusion of aliens afflicted with psychopathic person-
ality or a mental defect . . . [was] sufficiently broad to provide for the exclusion of homo-
sexuals and sex perverts.” S. REP. NO. 82-1137, at 9 (1952). One court explained that
“[w]hatever the phrase ‘psychopathic personality’ may mean to the psychiatrist, to the Con-
gress it was intended to include homosexuals and sex perverts.” Quiroz v. Neelly, 291 F.2d
906, 907 (5th Cir. 1961).
      100. See Fleuti, 374 U.S. at 462.
      101. Id. at 461.
      102. See id. at 458-59.
Winter]            INA Admission and Cancellation of Removal                              995

sion” and “admitted.”103 Also missing from the new definition is any men-
tion of the term “intended,” which featured permanently in the Fleuti deci-
sion. The terms “admission” and “admitted” are now defined as “the lawful
entry of the alien into the United States after inspection and authorization by
an immigration officer.”104 Under the new approach, an alien lawfully ad-
mitted for permanent residence is not regarded as seeking admission unless
he falls within one of the six exceptions covered by section 101(a)(13)(C).105
The question that normally arises in this context is whether the section pro-
vides a firm rule for aliens falling within those exceptions, or whether a
court can consider the nature and circumstances of an alien’s departure and
return before deciding whether any of the exceptions applies.
       This issue arose in In re Collado,106 where the BIA decided that the
plain language of the definitional section 101(a)(13)(C)(v) compelled it to
find that a lawful permanent resident who had committed an offense cov-
ered in section 212(a)(2) must be regarded as seeking admission.107 The
BIA saw the section as defining which lawful permanent residents would be
regarded as seeking admission, thus accepting a bright line approach to the
section.108 On the other hand, Board Member Rosenberg concluded in her
dissent that the section merely specified those lawful permanent residents
who may not be regarded as seeking admission.109
       It is submitted that the majority of the BIA had the better argument
here, inasmuch as the section no longer defines the term “entry” and re-
moves the term “intended” therefrom, with a view to providing a more use-
ful and definitive guide to the resolution of the admission question.110 After
all, the Fleuti doctrine had indicated that an alien should not be treated as
seeking entry if his trip abroad was innocent, casual, and brief.111 This was
a way for the Court to determine whether the alien intended to make a
meaningful departure.112 This case-by-case adjudication was not easy. It is,

     103. See IIRIRA § 301(a), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-576 (1996)
(codified at 8 U.S.C. § 1101(a)(13) (2000)).
     104. See INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).
     105. See INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).
     106. 21 I. & N. Dec. 1061 (BIA 1998).
     107. Id.
     108. See id. at 1064.
     109. See id. at 1071 (Rosenberg, Bd. Member, dissenting).
     110. See id. at 1065.
     111. See Rosenberg v. Fleuti, 374 U.S. 449, 462 (1953).
     112. See id. at 459. The Court in Fleuti referred to the naturalization requirements
which allow an alien to be temporarily absent from the United States without causing a
meaningful interpretation of the alien’s five-year continuous residence. Id. (citing INA §
316, 8 U.S.C. § 1427 (2000)). The INA recognizes this concept elsewhere. For example, the
adjustment section provides that “[a]n alien shall not be considered to have failed to maintain
continuous physical presence . . . by virtue of brief, casual, and innocent absences from the
United States.” INA § 245A(a)(3)(B), 8 U.S.C. § 1255a(a)(3)(B).
996                           Michigan State Law Review                      [Vol. 2005:979

therefore, not surprising that Congress opted for a simple declaration of the
circumstances under which a returning permanent resident would be re-
garded as seeking admission. It seemed determined to remove the uncer-
tainty inherent in the Fleuti doctrine, and to replace it with some require-
ments that were more likely to promote clarity and precision.113 Thus, there
can no longer be any disagreement that a lawful permanent resident who has
been away for more than 180 days should be treated as seeking admission
upon his return.114 Under the old approach, a question might have been
raised as to whether this departure was brief. It seems a bit strange that
Congress would have prescribed this demarcation and then still allow the
BIA to use its discretion in determining whether such an alien is seeking
admission on his return from a trip of that duration.115 This would be a per-
petuation of the Fleuti doctrine in full measure, because a court would have

     113. The Conference Report gave some idea of the legislative purpose: “With certain
specified exceptions (including in the case of an individual who has been absent from the
United States for a period greater than 180 days or has committed an offense identified in
section 212(a)(2)), a returning lawful permanent resident alien . . . shall not be considered to
be seeking admission.” H.R. REP. NO. 104-828, at 207 (1996).
     114. The BIA in Collado left no doubt about its position. It said that “under section
101(a)(13)(C)(ii) of the Act any absence of a lawful permanent resident for a continuous
period in excess of 180 days is now determinative of whether the alien is to be deemed to be
seeking admission, but absences of shorter duration will not be of any consequence in this
regard.” Collado, 21 I. & N. Dec. at 1065. The Third Circuit added its voice to the Collado
approach: “Congress assumed the task of delineating six specific scenarios under which a
returning alien would be considered an alien seeking admission. . . . These changes amount
to a complete makeover of § 101(a)(13) of the INA, specifically intended to supplant the
subjective intent inquiry that was a feature of the old law.” Tineo v. Ashcroft, 350 F.3d 382,
393 (3d Cir. 2003).
     115. A congressional report on a prior version of the IIRIRA may leave the reader
confused about the purpose of the new section 101(a)(13)(C). The comment read as follows:
     [T]his section preserves a portion of the Fleuti doctrine by stating that a returning
     lawful permanent resident shall not be regarded as seeking admission unless the
     alien has relinquished lawful permanent resident status; has engaged in criminal
     activity after having left the U.S. . . . while under removal or extradition proceed-
     ings; or has been convicted of an aggravated felony, unless since such conviction
     the alien has been granted relief under new section 240A(a) (cancellation of re-
     moval for certain aliens lawfully admitted for permanent residence). However, this
     section intends to overturn certain interpretations of Fleuti by stating that a return-
     ing lawful permanent resident alien is seeking admission if the alien is attempting
     to enter or has entered the United States without inspection and authorization by an
     immigration officer.
H.R. REP. NO. 104-469, pt. 1, at 225-26 (1996). Perhaps the comment about preserving a
part of the Fleuti doctrine can lead to some ambiguity about the final version of the statute.
Fleuti set the stage with the characterization of the alien’s “innocent, casual, and brief” trip.
The new section 101(a)(13)(C) removes any doubts about the meaning of those elements.
Thus, the section treats all trips of 180 days or less as not affecting the status of a permanent
resident. See INA § 101(a)(13)(C)(ii), 8 U.S.C. § 1101(a)(13)(C)(ii) (2000). The Fleuti
factor relating to brevity is no longer subject to debate. See Tineo, 350 F.3d at 394; see also
Morales-Morales v. Ashcroft, 384 F.3d 418, 424 (7th Cir. 2004).
Winter]            INA Admission and Cancellation of Removal                               997

to decide about the alien’s admission on a case-by-case basis—something
that the new section was intended to avoid.
       The dissent put the other side of the question invitingly. It was that re-
turning permanent residents who did not fall within any of the six excep-
tions in section 101(a)(13)(C) may not be treated as seeking admission, but
that the statute left open for individual determination how aliens covered by
those exceptions should be treated.116 The dissent read the statute as permit-
ting, rather than mandating, a finding that a lawful permanent resident seeks
admission if he falls within any of six listed categories.117 The most persua-
sive part of the argument is that if any of the exceptions following the term
“unless” applies, it does not mean that the negative terminology “shall not
be regarded as an arriving alien” automatically is transformed into a positive
prescription that the alien subject to the “unless” clause should be recog-
nized as seeking admission.118 Although the “shall not . . . unless” construc-
tion may lead to the “permissible” approach in other contexts,119 it packs
less of a punch where, as in this context, the drafters wanted to take a defini-
tive stance on which permanent residents should be regarded as seeking
admission.120 Even when they identified such an alien as someone who has


      116. See Collado, 21 I. & N. Dec. at 1067 (Rosenberg, Bd. Member, dissenting).
      117. By taking this approach, Board Member Rosenberg sought to preserve the sub-
jective elements of Fleuti, for then the decisionmaker would still be able to assess the factors
of a particular case that fell within any of the six exceptions. See id.
      118. Id. at 1071. The argument here is that “if the conditions stated are met, what
follows the ‘shall not’ becomes permissible but not mandatory.” Id. at 1072.
      119. In Collado, Board Member Rosenberg gave several examples of the operation of
the “shall not . . . unless” language in other contexts. Collado, 21 I. & N. Dec. at 1072. The
argument was that the conditions following “unless” must be met, but the actor is not re-
quired to act even if they are. In the case of a writ of habeas corpus, the statute provides it
“shall not be granted unless . . . the applicant has exhausted the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(1)(A) (2000). The dissent’s position was that
“[e]xhausting state remedies [was] a necessary condition precedent to granting the writ in
federal court, but [was] obviously not sufficient to obligate the federal court to issue the
writ.” Collado, 21 I. & N. Dec. at 1072. This element of discretion, which survives in this
context despite fulfillment of the conditions, cannot apply in the case of section
101(a)(13)(C) because Congress bent over backwards to draw a bright line for determining
which returning residents would be regarded as seeking admission. See generally Michael
D. Patrick, The Diminution of the Fleuti Doctrine, 3 BENDER=S IMMIGR. BULL. 541 (1998).
The new approach was not intended to expand the Fleuti doctrine by prescribing certain
conditions for an alien to fall within the admission umbrella, but then still allow the deci-
sionmaker to exercise his discretion about the application of the condition to a particular
alien. See id. Section 101(a)(13) is a definitional section that removes doubt about which
trips are “innocent, casual, and brief.” See id.
      120. Congress wanted to set up a demarcation line. The Conference Report stated:
      With certain specified exceptions (including in the case of an individual who has
      been absent from the United States for a period of greater than 180 days or has
      committed an offense identified in section 212(a)(2)), a returning lawful permanent
      resident alien (LPR) shall not be considered to be seeking admission.
998                            Michigan State Law Review                      [Vol. 2005:979

committed an offense identified in section 212(a)(2),121 they did not stop
there. The drafters went further and introduced another “unless” clause that
removed such an offender from the exception if the alien has obtained relief
under section 212(h) (waiver) or section 240A(a) (cancellation of re-
moval).122 This does not look like an exercise that was designed to leave the
exception to further interpretation. If the drafters had omitted the reference
to sections 212(h) and 240A(a), it is doubtful that it could be implied in the
“unless” clause on the pretext of assessing additional factors to determine
whether the alien was seeking admission.123 In that context, one would have
to be satisfied with the sole reference to section 212(a)(2). So, while a case
can be made that the “shall not . . . unless” phraseology may allow some
permissiveness in another context, it seems most unlikely within the con-
fines of section 101(a)(13), where the drafters have not only defined the
term “admission,” but, leaving nothing to chance, have also removed the
element of discretion that otherwise obtained under the Fleuti doctrine.124
      Given the framework of the new language, it is not at all unreasonable
to suggest that the “intent” exception of section 101(a)(13) has been re-
pealed by implication.125 One must look carefully, however, at the indica-
tors of repeal before coming to any firm conclusion. The intent exception
carried with it the “innocent, casual, and brief” criteria, and, therefore, when
Congress removed the term “not intended” from the statute, it sent a mes-
sage that it was no longer interested in exploring loosely the nature and pur-




H.R. REP. NO. 104-828, at 207 (1996). The general rule is that a returning permanent resi-
dent does not fall within the admission category. See generally Collado, 21 I. & N. Dec. at
1065-66. If he falls within any of the exceptions, then he is regarded as seeking admission.
See id. It is no longer necessary to assess the innocence, brevity, or casualness of the alien’s
trip. See id. Section 101(a)(13)(C) defines the exceptions in precise terms. See id. at 1065.
      121. See INA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v) (2000).
      122. See id.
      123. The statute leaves nothing to chance by allowing an alien to benefit from a
waiver under section 212(h) and cancellation of removal under section 240A(a).
      124. The Fleuti court was concerned about whether the alien’s interruption of resi-
dence should be regarded as meaningful. See Rosenberg v. Fleuti, 374 U.S. 449, 459-60
(1953). The new § 101(a)(13)(C) clearly sets out the rules. See INA § 101(a)(13)(C), 8
U.S.C. § 1101(a)(13)(C) (2000).
      125. There is no doubt that section 301(a)(13) of the IIRIRA was intended to intro-
duce a new regime covering admission. No longer is there any reference to “not intended” or
“innocent, casual, and brief.” The definition now concentrates on “admission” and “admit-
ted.” See IIRIRA § 301(a), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-576 (1996) (codi-
fied at INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A) (2000)). There is ample evidence,
therefore, that the intent exception, an important feature of the old statute, no longer survives.
In a sense, section 301(a) of the IIRIRA brought about a repeal by implication of the “inno-
cent, casual, and brief” doctrine which had held sway since Fleuti. See 1A NORMAN A.
SINGER, STATUTES AND STATUTORY CONSTRUCTION § 23:2, at 437-38 (6th ed. 2002).
Winter]            INA Admission and Cancellation of Removal                             999

pose of an alien’s trip.126 Thus, there seemed to be a conflict between the
previous emphasis on the alien’s intent and the new approach which simply
stated a general rule for returning permanent residents, subject to clear ex-
ceptions. There is every indication, therefore, that Congress did not want to
continue its accommodation of the “not intended” phraseology.127 This new
tack provided some evidence that the IIRIRA had repealed by implication
the intent criterion of old. So sure was Congress that it wanted to turn over
a new leaf that it introduced the concept of “admission” and gave it a defini-
tion that was quite different from that of “entry” under the previous statute.
As if to emphasize the nature of the change in section 101(a)(13), Congress
retained a reference to the nature of an alien’s trip in other parts of the
INA.128 There is a compelling case, therefore, for recognizing a repeal to
the extent of the conflict between the two provisions.129
      The case for repeal need not rest on this conflict alone. One may look
to see whether Congress used the IIRIRA to overhaul the old section com-
prehensively, thus leaving no doubt about the direction it was taking. The
establishment of a presumption in favor of lawful permanent residents and
the clear expression of six specific exceptions provide ample evidence that
this was no piecemeal approach to the statutory formulation.130 No longer
would the alien’s intent hold sway. It was now a matter of determining
whether the alien had met any of the exceptions. If so, he would be re-
garded as seeking “admission.”131 This was now the important term, and


      126. Congress retained the same concept in other parts of the statute. See INA §
245A(a)(3)(B), 8 U.S.C. § 1255a(a)(3)(B) (2000) (an alien’s “brief, casual, and innocent
absences” do not amount to failing to maintain a continuous physical presence). By taking a
fresh approach in section 101(a)(13), while maintaining the formula in other sections, Con-
gress was willing to adopt different criteria for determining whether a returning lawful per-
manent resident was being admitted. See INS v. Cardoza-Fonseca, 480 U.S 421, 432 (1987)
(presuming that Congress acts intentionally when it includes certain language in one section
of a statute but omits it from another).
      127. See Tineo v. Ashcroft, 350 F.3d 382, 393 (3d Cir. 2003) (finding that the
changes in § 101(a)(13) were intended “to supplant the subjective intent inquiry that was a
feature of the old law”).
      128. See INA § 245A(a)(3)(B), 8 U.S.C. § 1255a(a)(3)(B) (“brief, casual, and inno-
cent absences”); INA § 245A(b)(3)(A), 8 U.S.C. § 1225a(b)(3)(A) (“brief and casual trips”).
      129. The court in Tineo explained it best: “[A]ll the verifiable signs of Congressional
intent point to the elimination of the innocent, casual, and brief departure doctrine from §
301(a)(13). To reincorporate that doctrine into the new statute, would require a feat of judi-
cial legislation.” Tineo, 350 F.3d at 395.
      130. The pre-IIRIRA approach was that any alien coming into the United States
would be regarded as making an entry, except a lawful permanent resident who fell within
the Fleuti doctrine. See INA § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994). The new ap-
proach reverses the presumption by recognizing a lawful permanent resident as not making
an entry unless a certain event occurs. See INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C)
(2000).
      131. See id.
1000                         Michigan State Law Review                   [Vol. 2005:979

with it came the elimination of any inquiry about the innocence, casualness,
and brevity of the alien’s departure.132 This is not to say that the lessons of
Fleuti have been entirely forgotten. But they have led us away from the
subjective determination of what an alien had in mind, toward objective
criteria that, among other things, provide safe harbor for trips that last 180
days or less.133
       It is comforting that in Tineo v. Ashcroft, the Third Circuit agreed in
principle with the approach taken by the BIA in Collado, while admitting
that section 101(a)(13)(C) was “not entirely free from ambiguity.”134 The
court was anxious to accord due deference to the BIA, in keeping with the
Chevron principles that a court should respect the reasonable interpretation
of the agency charged with the statute’s administration.135 Had Congress
given some firmer indication of the fate of the Fleuti doctrine, there would
be less room for administrative interpretation. The court found the BIA’s
interpretation reasonable, because it avoided the creation of an “undefined
second category of lawful permanent residents who may or may not be re-
garded as seeking an admission, depending on a wholly unspecified set of
criteria.”136

        II. CANCELLATION OF REMOVAL FOR PERMANENT RESIDENTS

A. Lawful Permanent Residence for at Least Five Years

      The IIRIRA came along none too soon. The INA’s old section 212(c)
offered relief to certain aliens who had been permanent residents for at least
five years.137 The section required an alien to be returning to a lawful unre-


     132. See Tineo, 350 F.3d at 397; In re Collado, 21 I. & N. Dec. 1061, 1065 (BIA
1998).
     133. See INA § 101(a)(13)(C)(ii), 8 U.S.C. § 1101(a)(13)(C)(ii) (2000).
     134. Tineo, 350 F.3d at 396.
     135. See id. The amended section 101(a)(13) does not expressly deal with the inno-
cence, brevity, or casualness of the alien’s trip. Nevertheless, in such a case, the Supreme
Court provided the following guidance:
     If . . . the court determines Congress has not directly addressed the precise question
     at issue, the court does not simply impose its own construction on the statute, as
     would be necessary in the absence of an administrative interpretation. Rather, if
     the statute is silent or ambiguous with respect to the specific issue, the question for
     the court is whether the agency’s answer is based on a permissible construction of
     the statute.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) (footnotes
omitted). This Chevron principle of deference also applies in the case of the BIA. See INS
v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).
     136. Tineo, 350 F.3d at 397 (quoting Collado, 21 I. & N. Dec. at 1064).
     137. Section 212(c) of the INA provided, with certain exceptions, that “[a]liens law-
fully admitted for permanent residence . . . who are returning to a lawful unrelinquished
Winter]            INA Admission and Cancellation of Removal                            1001

linquished domicile in order to be eligible for this discretionary form of
relief.138 This language produced a few problems. First, since the section
used the word “returning,” it seemed at first blush that it applied only if the
alien was reentering the United States from a trip abroad.139 This language
did not, therefore, literally include an alien who had never left the United
States. It was left to the Second Circuit in Francis v. INS140 to explain that
the Equal Protection Clause prevented the exclusion of such an alien from
relief under section 212(c).141 There was no rational basis for making a dis-
tinction between a returning alien and an alien who had never left the
United States.142 When the BIA agreed with the Francis approach in Matter
of Silva,143 it was clear then that section 212(c) would be available to aliens
both in exclusion and deportation proceedings.
       Another issue had to be settled, however. Now that section 212(c)
coverage had been expanded to deportation, aliens agitated for relief on the
basis of any deportation ground. The BIA did not see any good reason for
restricting relief to deportation grounds that had a counterpart in the exclu-
sion section.144 Nevertheless, the Attorney General overruled the BIA=s
decision in In re Hernandez145 and ruled that section 212(c) would waive
only those deportation grounds that also appeared in the exclusion section.146
Section 212(c) caused more confusion by requiring a lawful permanent

domicile of seven consecutive years, may be admitted in the discretion of the Attorney Gen-
eral.” INA § 212(c), 8 U.S.C. § 1182(c) (1994).
      138. See id.
      139. Section 212(c) originated in the Seventh Proviso to section 3 of the Immigration
Act of 1917, which provided in part that “aliens returning after a temporary absence to an
unrelinquished United States domicile of seven consecutive years may be admitted in the
discretion of the Secretary of Labor, and under such conditions as he may prescribe.” Immi-
gration Act of 1917, ch. 29, § 3, 39 Stat. 874, 878 (1917).
      140. 532 F.2d 268 (2d Cir. 1976).
      141. The court in Francis explained:
      Fundamental fairness dictates that permanent resident aliens who are in like cir-
      cumstances, but for irrelevant and fortuitous factors, be treated in a like manner.
      We do not dispute the power of the Congress to create different standards of ad-
      mission and deportation for different groups of aliens. However, once those
      choices are made, individuals within a particular group may not be subjected to
      disparate treatment on criteria wholly unrelated to any legitimate governmental in-
      terest. We find that the Board’s interpretation of Section 212(c) is unconstitutional
      as applied to this petitioner.
Id. at 273.
      142. The Francis court applied the minimal scrutiny test, which required that “dis-
tinctions between different classes of persons ‘must be reasonable, not arbitrary, and must
rest upon some ground of difference having a fair and substantial relation to the object of the
legislation . . . .’” Id. at 272 (quoting Stanton v. Stanton, 421 U.S. 7, 14 (1975)).
      143. 16 I. & N. Dec. 26 (BIA 1976).
      144. See In re Hernandez-Casillas, 20 I. & N. Dec. 262 (BIA 1990).
      145. 20 I. & N. Dec. 262 (BIA 1990).
      146. See id. at 287.
1002                         Michigan State Law Review                     [Vol. 2005:979

resident to be returning to a lawful unrelinquished domicile of seven con-
secutive years.147 It was open to question whether the drafters intended to
make the point that “domicile” was a special status that might not necessar-
ily have any relationship to admission as a permanent resident.148 If an alien
did not have to be a lawful permanent resident in order to establish domi-
cile, then it was arguable that the seven-year period was not related to the
alien’s status as a lawful permanent resident, and the alien would be eligible
for relief as long as he was a lawful permanent resident when he returned to
the United States. The courts and the BIA grappled with this problem and
some circuits rejected the BIA’s approach that an alien’s seven years of
domicile had to ensue from an alien’s admission to lawful permanent resi-
dence.149
       The IIRIRA introduced a new cancellation of removal section in re-
sponse to many congressional concerns about section 212(c). Section
240A(a) does not mention anything about domicile. The alien must now
have at least five years standing as a lawful permanent resident,150 although
he must have at least seven years of continuous residence in the United
States. An alien is no longer required to relate his status as a lawful perma-
nent resident to his status as a domiciliary.151 Although it was arguable un-

     147. It was not only a question of when domicile began and ended, but also what
constituted domicile. See Lok v. INS, 548 F.2d 37 (2d Cir. 1977); In re Lok, 18 I. & N. Dec.
101 (BIA 1981), aff’d, Lok v. INS, 681 F.2d 107 (2d Cir. 1982); In re S, 5 I. & N. Dec. 116
(BIA 1953).
     148. The INA does not define the term “domicile.” Nevertheless, in interpreting the
Indian Child Welfare Act, the U.S. Supreme Court explained that “domicile is established by
physical presence in a place in connection with a certain state of mind concerning one’s
intent to remain there.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48
(1989); see also Melian v. INS, 987 F.2d 1521, 1524 (11th Cir. 1993) (domicile is combina-
tion of lawful presence and lawful intent to remain indefinitely in the United States); 6
GORDON ET AL., supra note 34, § 74.04[2][c].
     149. Compare Michelson v. INS, 897 F.2d 465 (10th Cir. 1990), Chiravacharadhikul
v. INS, 645 F.2d 248 (4th Cir. 1981), Anwo v. INS, 607 F.2d 435 (D.C. Cir. 1979), and In re
S, 5 I. & N. Dec. at 116, with Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995), and
Lok, 548 F.2d at 37.
     150. INA § 240A(a) provides as follows:
     The Attorney General may cancel removal in the case of an alien who is inadmis-
     sible or deportable from the United States if the alien B
     (1) has been an alien lawfully admitted for permanent residence for not less than 5
     years,
     (2) has resided in the United States continuously for 7 years after having been ad-
     mitted in any status, and
     (3) has not been convicted of any aggravated felony.
INA § 240A(a), 8 U.S.C. § 1229b(a) (2000).
     151. It was possible for a diplomat to form an intent to remain indefinitely in the
United States because his classification did not require him to have a foreign residence which
he had no intention of abandoning.             See INA § 101(a)(15)(A)(i), 8 U.S.C. §
1101(a)(15)(A)(i) (1994). It would have been problematic to deny him domiciliary status
Winter]             INA Admission and Cancellation of Removal                             1003

der section 212(c) that a lawful permanent resident of less than five years
standing should be eligible for consideration as long as he had five years of
domicile, the new section 240A(a)(1) lays that argument to rest by clearly
requiring five years of lawful permanent residence.152
      The alien in In re Koloamatangi153 thought that he could retain his
status as a permanent resident despite his fraud, on the ground that his status
could be terminated only upon entry of a final administrative order.154 But
that part of the relevant regulation which mandates the termination of an
alien’s permanent residence upon entry of an order was intended to codify
the decision in In re Lok,155 which dealt with an alien’s lawful residence
status. It did not, therefore, apply to permanent residence which was ob-
tained by fraud. Since an alien must have at least five years’ standing as a
lawful permanent resident, he must comply with the substantive require-
ments for admission, and not merely with the procedural niceties.156 Once
an alien is ineligible for admission, that makes his status unlawful from the
beginning, and he cannot therefore qualify for any period of lawful resi-
dence to satisfy the statute. Thus, residence obtained by fraud will not sat-
isfy the statutory requirement.

B. Continuous Residence for Seven Years

      Another requirement for cancellation of removal is that a lawful per-
manent resident must reside continuously in the United States for seven
years after having been admitted in any status.157 The term “residence”
means the alien’s actual dwelling place in fact, without regard to the alien’s
intent.158 Therefore, an alien who is admitted to the United States as a non-
immigrant starts his period of residence at that point and does not interrupt


given the statutory language. See, e.g., Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir.
1995) (recognizing the time that an alien spent as a lawful temporary resident under § 245A);
Castellon-Contreras v. INS, 45 F.3d 149 (7th Cir. 1995) (holding that alien had lawful domi-
cile from time of his application for amnesty under Immigration Reform and Control Act).
      152. The alien must be lawfully admitted for permanent residence for at least five
years. See INA § 240A(a)(1), 8 U.S.C. § 1229b(a)(1) (2000).
      153. 23 I. & N. Dec. 548 (BIA 2003).
      154. See id. at 549. After defining the term “lawfully admitted for permanent resi-
dence,” the regulation states that “[s]uch status terminates upon entry of a final . . . order of
exclusion [or] deportation.” 8 C.F.R. § 1.1(p) (2005).
      155. 18 I. & N. Dec. 101 (BIA 1981), aff=d, Lok v. INS, 681 F.2d 107 (2d Cir. 1982).
The BIA held in Lok that the alien stopped accruing time for domicile when the deportation
order became administratively final. See id. at 105. The alien’s problems began after the
alien was legally admitted. See id. at 102.
      156. See Koloamatangi, 23 I. & N. Dec. at 550; see also Monet v. INS, 791 F.2d 752
(9th Cir. 1986).
      157. See INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2) (2000).
      158. See INA § 101(a)(33), 8 U.S.C. § 1101(a)(33) (2000).
1004                          Michigan State Law Review                     [Vol. 2005:979

it even if he subsequently falls out of status. The alien’s residence follows
the alien’s admission, and that admission ensues from the alien’s “lawful
entry . . . after inspection and authorization by an immigration officer.”159
The statute does not, however, require that the residence must continue to
be lawful once the alien has been admitted.
       In In re Blancas,160 the alien entered as a nonimmigrant in 1986, ad-
justed his status to that of a lawful permanent resident in 1991, and was
served with a notice to appear in 1998.161 The issue was whether the alien
had resided in the United States for at least seven years after his admission
in any status.162 The INS argued that the statute required the alien to be
admitted for lawful residence in any “immigrant” status, because otherwise
the literal interpretation of the statute would accommodate aliens who were
in breach of their status as nonimmigrants.163 The BIA rightly pointed out
that the INS’s interpretation of the statute would render section 240A(a)(2)
superfluous because section 240A(a)(1) already requires an alien to have at
least five years of lawful permanent residence.164 Furthermore, Congress
did not require an alien to maintain lawful status after admission in order to
qualify for cancellation under section 240A(a)(2).165 No doubt the INS was
perplexed by the possibility that the alien could qualify for cancellation un-
der section 240A(a), because the predecessor statute—section 212(c)—
required seven years of lawful domicile, and thus an alien could not benefit
from his illegal status.166 The alien’s ability to form an intent about perma-
nent residence was important under the prior statute.167 The matter of domi-
cile does not arise under cancellation of removal. In Blancas, the BIA
therefore found that the alien had satisfied the seven-year residence re-
quirement because he had resided continuously in the United States since
1986.168


       159. See INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A) (2000).
       160. 23 I. & N. Dec. 458 (BIA 2002).
       161. See id. at 459.
       162. See id. at 458.
       163. See id. at 460.
       164. See id.
       165. The court gave a logical explanation: “Congress could easily have written sec-
tion 240A(a)(2) to include maintenance of status as a prerequisite for relief, but it chose only
to require 7 years of continuous residence after admission to the United States.” Id. at 461.
       166. The new section 240A(a) was “intended to replace and modify the form of relief
. . . granted under section 212(c) of the INA.” H.R. REP. NO. 104-828, at 213 (1996).
       167. See Melian v. INS, 987 F.2d 1521, 1525 (11th Cir. 1993) (visitor could not form
lawful intent to establish domicile); In re Ponce de Leon, 21 I. & N. Dec. 154, 159 (BIA
1996) (alien adjusting status to lawful permanent resident under the Immigration Reform and
Control Act is deemed to do so when he files application for permanent residence, or when
he becomes eligible, whichever is later).
       168. See Blancas, 23 I. & N. Dec. at 461.
Winter]            INA Admission and Cancellation of Removal                           1005

C. No Conviction for Aggravated Felony

      An alien is not eligible for relief under section 240A(a) if he has been
convicted of an aggravated felony.169 Although the term “aggravated fel-
ony” is amply defined in section 101(c)(43),170 some of the definitions have
led to disagreements about whether certain offenses are covered. One of-
fense that has received critical attention is a crime of violence for which the
term of imprisonment is at least one year.171
      Section 101(a)(43) refers to a crime of violence as defined in 18
U.S.C. § 16, and so, for the crime to be one of violence and thus be an ag-
gravated felony, it must be an offense that falls within that definition.172 The
challenge lies in applying the definition to a state statute to determine
whether the alien has committed an aggravated felony. A good example of
the problem can be found in Flores v. Ashcroft,173 where the alien pleaded
guilty to a misdemeanor battery under an Indiana statute for causing bodily
injury to another person by intentionally touching that person in a “rude,
insolent, or angry manner.”174 The court found that there was no crime of
violence here because the local statute did not make intent to injure an ele-
ment of the offense.175 The statute required an intent to touch—not neces-
sarily an intent to injure—in order for a person to be guilty of the offense.176
Furthermore, since the conviction was for a misdemeanor, physical force
had to be shown as an element of the offense under § 16(a) for the alien’s
offense to be categorized as a crime of violence.177

     169. See INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3) (2000).
     170. There are twenty-one classifications of the term “aggravated felony.” See INA §
101(a)(43), 8 U.S.C. § 1101(a)(43) (2000).
     171. The specific category covered by the statute is “a crime of violence (as defined
in section 16 of title 18, but not including a purely political offense) for which the term of
imprisonment at least one year [sic].” INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).
     172. The definition in 18 U.S.C. § 16 is as follows:
     The term “crime of violence” meansB
     (a) an offense that has as an element the use, attempted use, or threatened use of
     physical force against the person or property of another, or
     (b) any other offense that is a felony and that, by its nature, involves a substantial
     risk that physical force against the person or property of another may be used in the
     course of committing the offense.
18 U.S.C. § 16 (2000).
     173. 350 F.3d 666 (7th Cir. 2003).
     174. Id. at 669 (citing IND. CODE § 35-42-2-1).
     175. See id. at 671.
     176. Since the alien was convicted of a misdemeanor rather than a felony, physical
force had to be an element of the crime, as required by § 16(a), in order for the crime to be
categorized as an aggravated felony under § 101(a)(43)(F) of the INA. See id. at 672.
     177. Section 16(b) covers only felonies, and thus the misdemeanor offense could be
accommodated only under § 16(a), which incorporates the element of physical force. See id.
at 671-72.
1006                          Michigan State Law Review                     [Vol. 2005:979

      But this did not settle the matter. The court still had to answer the
question whether the alien’s mere touching constituted the use of physical
force so that the alien’s conviction could be recognized as being for a crime
of violence under the federal definition. The difficulty here is that it is im-
possible to touch someone, an essential ingredient of a battery, without ap-
plying some force, but it is still questionable whether the force would be
sufficient to constitute “physical force.” The Flores court supported a dis-
tinction between violent and nonviolent offenses.178 It observed that the
word “‘force’ [must] . . . hav[e] a meaning in the legal community that dif-
fers from its meaning in the physics community.”179 So it was not the mere
exertion of energy that brought the alien’s offense within the statute.180 The
force contemplated there is violent in nature, and thus likely to cause injury.
It was necessary, therefore, to distinguish between violent and nonviolent
offenses; if not, physical force against a person would end up on a parallel
with physical contact with a person, and the statute contemplated a differ-
ence between the two.181
      One must concentrate on the elements of a crime in order to determine
whether the crime can be classified as a crime of violence under 18 U.S.C. §
16(a). In the case of a misdemeanor, it is § 16(a) that matters, and the only
relevant element there is “the use, attempted use or threatened use of physi-
cal force against the person or property of another.”182 If physical force is
not part of the equation, then there is no crime of violence even if injury
occurs as a result of the alien’s action.183
      The Second Circuit had a chance to look at § 16(a) in Chrzanoski v.
Ashcroft,184 when an alien was convicted of third-degree assault under a
Connecticut statute.185 The court concluded that the use of force had to be

      178. See id. at 672.
      179. Id.
      180. The court stated:
      Section 16(a) refers to the “use of physical force.” Every battery entails a touch,
      and it is impossible to touch someone without applying some force, if only a smid-
      geon. Does it follow that every battery comes within § 16a? No, it does not.
      Every battery involves “force” in the sense of physics or engineering, where
      “force” means the acceleration of mass. A dyne is the amount of force needed to
      accelerate one gram of mass by one centimeter per second. . . . Perhaps one could
      read the word “force” in § 16(a) to mean one dyne or more, but that would make
      hash of the effort to distinguish ordinary crimes from violent ones.
Id.
     181. The Indiana statute involved did not make an intent to injure an element of the
offense. An intent to touch was necessary. See id. at 671.
     182. 18 U.S.C. § 16(a) (2000).
     183. See Flores, 350 U.S. at 671; United States v. Nason, 269 F.3d 10 (1st Cir. 2001).
     184. 327 F.3d 188 (2d Cir. 2003).
     185. The statute in contention read that a person would be guilty of assault if, “[w]ith
intent to cause physical injury to another person, he causes such injury to such person or to a
third person.” CONN. GEN. STAT. § 53a-61(a)(1) (2000).
Winter]            INA Admission and Cancellation of Removal                            1007

an element of the offense in order for the court to find that the alien had
committed a crime of violence.186 Although the statute required an intent to
cause physical injury, it did not require the use of force for there to be a
conviction.187 The court in Chrzanoski was careful to point out that a person
could intentionally cause an injury without using force, and that the Con-
necticut statute under discussion would support an alien’s conviction even if
the injury was caused by guile or deception.188 The salient point here was
that the plain language of the statute did not make the use of force either an
“explicit or implicit element of the crime.”189 The statutory language was
broad enough to cover many intentional acts that would produce injury,
even in the absence of physical force.190
      The court would not accept the government’s invitation to avoid the
plain language of the statute by resorting to legislative history.191 The BIA
had followed that route in In re Martin,192 but without good reason. There is
no ambiguity in the statutory requirement that use of force must be an ele-
ment of the crime, and thus the BIA in Martin was only asking for trouble
when it resorted to legislative history to bolster its position.193 The congres-
sional rationale for enacting § 16 was to broaden the description of an ag-
gravated felony so that more alien criminals would be subject to removal.194
It did so with a definitive scheme that covered felonies in § 16(b) and mis-
demeanors in § 16(a). In order to bring misdemeanors within the definition
of a crime of violence, and thus treat them as aggravated felonies, Congress


     186. See Chrzanoski, 327 F.3d at 196.
     187. See id. at 195.
     188. See id.
     189. Id. at 196.
     190. See id.
     191. See id. If a statute is not ambiguous, it is unnecessary to refer to its legislative
history. See Dep’t. of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002); 2A NORMAN A.
SINGER, STATUTES AND STATUTORY CONSTRUCTION, § 46:01 (6th ed. 2000).
     192. 23 I. & N. Dec. 491 (2002). The Connecticut statute involved provided that a
person would be guilty of assault if “[w]ith intent to cause physical injury to another person,
he causes such injury to such person or to a third person.” CONN. GEN. STAT. § 53a-61(a)(1)
(2000). The BIA relied on the legislative history of the crime of violence to support its con-
clusion that the infliction of physical injury had as an element the use of physical force as
required by 18 U.S.C. § 16(a), and thus the assault was an aggravated felony under §
101(a)(43)(F) of the INA. See Martin, 23 I. & N. Dec. at 499.
     193. Board Member Rosenberg said it best in Martin: “[R]esort to legislative pro-
nouncements in the face of language that has an ordinary, commonly understood meaning is
only appropriate in narrow circumstances in which the legislative history contains a ‘clearly
expressed intention’ contrary to the plain meaning of the statutory language.” Id. at 506
(Rosenberg, Bd. Member, dissenting).
     194. The court in Chrzanoski conceded that the government was correct in its argu-
ment that “Congress’s intent in drafting § 16 was to expand the list of crimes that constitute
aggravated felonies and thus subject alien defendants to removal.” Chrzanoski, 327 F.3d at
196.
1008                         Michigan State Law Review                    [Vol. 2005:979

required that such misdemeanors must have the use of force as an element
of the offense.195 However, under § 16(b), felonies must by their nature
involve a substantial risk that physical force may be used.196 In this way,
Congress drafted a less restrictive definition for felonies, for it did not man-
date that the use of force be an element of the offense.197
      There is a tendency in some of these cases for the courts to confuse the
use of physical force with the causation of injury. Simply because § 16(a)
imposes the use of physical force as an element of the offense does not
mean that every event that results in harm to someone is such a crime of
violence.198 The statute in Martin had two basic elements: intent to cause
physical injury and causation of that injury.199 It did not require any show-
ing of actual or threatened physical force, and since the offense was a mis-
demeanor under state law, there was nothing linking the offense to §
(16)(a)’s requirement that the use of physical force must somehow be in-
volved.200 The Martin majority seemed persuaded by the fact that all the

     195. The court in Chrzanoski emphasized the distinction between § 16(a) and § 16(b)
as follows:
     Through § 16(b), Congress sought to classify as crimes of violence felonies that,
     by their nature, involve a substantial risk that physical force against the person or
     property of another may be used. It did not require that felonies have as an ele-
     ment of the offense the use of force. But when Congress considered which mis-
     demeanors should be deemed crimes of violence, and thus aggravated felonies un-
     der the INA, it chose a materially different definition.
Id.
     196. See 18 U.S.C. § 16(b) (2000).
     197. In § 16(b), the offense must be a felony that “involves a substantial risk that
physical force . . . may be used in the course of committing the offense.” 18 U.S.C. § 16(b)
(emphasis added).
     198. See Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir. 2001); In re Sweetser, 22 I.
& N. Dec. 709, 716 (BIA 1999).
     199. The Connecticut statute provided that “[w]ith intent to cause physical injury . . .
[the person] causes such injury . . . . ” CONN. GEN. STAT. § 53a-61(a)(1) (2000).
     200. In Martin, Board Member Rosenberg made the point:
     [T]he reference in 18 U.S.C. § 16(a) to a crime that has as an element the use of
     physical force does not encompass every offense in which an injury is caused, even
     if the injury could have been caused by force or there is a risk that the offender
     might have resorted to force.
In re Martin, 23 I. & N. Dec. 491, 504 (BIA 2002) (Rosenberg, Bd. Member, dissenting).
The Third Circuit drew a distinction in another context between physical injury and the use
of physical force. It stated as follows:
     [A] parent who leaves a young child unattended near a pool may risk serious injury
     to the child, but the action does not involve an intent to use force or otherwise
     harm the child. Similarly, a drunk driver risks causing severe injury to others on
     the road or in the car, but in most cases he or she does not intend to use force to
     harm others. In this case, the crime of reckless endangering necessarily involves a
     serious risk of physical injury to another person, but not necessarily an intent to use
     force against other persons.
United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992).
Winter]            INA Admission and Cancellation of Removal                            1009

Connecticut cases decided under the assault statute involved some sort of
physical injury produced by the defendant’s intentional or threatened use of
physical force.201 Even if this turns out to be a remarkable coincidence, it
does not ipso facto convert the use of force into an element of the crime. A
physical injury resulting from a person’s conduct need not be based on the
use of physical force.202
       The phrase “physical force” appears in both prongs of the definition
of “crime of violence.” Section 16(a) requires the offense to have as an
element “the use, attempted use, or threatened use of physical force,”203
whereas § 16(b) includes any other offense that is a felony and that, by its
nature, involves “a substantial risk that physical force . . . may be used in
the course of committing the offense.” 204 The United States Supreme Court
had a chance to spell out the difference in Leocal v. Ashcroft.205
       In Leocal, an alien was convicted under a Florida statute which made
it a felony for causing serious bodily injury to another while driving under
the influence of alcohol.206 The Supreme Court decided that the alien was
not convicted of a crime of violence within the meaning of § 16 and thus he
could not be deported for committing an aggravated felony.207 The Florida
statute did not require proof of any specific mental element for there to be a
violation.208 In light of this, the Court observed that a person could hardly
use physical force by accident so as to bring the Florida statute within the
coverage of § 16.209 The Court was intent on giving the word “use” its ordi-
nary or natural meaning within the context of § 16 (a), and thus the use of

     201. See Martin, 23 I. & N. Dec. at 498 (citing State v. Palozie, 334 A.2d 468 (Conn.
1973) (slap in the face); State v. Rodriguez, 796 A.2d 611 (Conn. App. Ct. 2002) (punch in
the face); State v. Henderson, 658 A.2d 585 (Conn. App. Ct. 1995) (victim hit and threatened
with knife); State v. Egan, 514 A.2d 394 (Conn. App. Ct. 1986) (victim slapped and kicked);
State v. Atkinson, 741 A.2d 991 (Conn. Super. Ct. 1999) (victim choked)).
     202. In Dalton, the Second Circuit recognized “the logical fallacy inherent in reason-
ing that simply because all conduct involving a risk of the use of physical force also involves
a risk of injury then the converse must also be true.” Dalton, 257 F.3d at 206; see also
United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001); Parson, 955 F.2d at 866.
     203. 18 U.S.C. § 16(a) (2000).
     204. 18 U.S.C. § 16(b).
     205. 125 S. Ct. 377 (2004).
     206. See FLA. STAT. § 316.193(3)(c)(2) (2003).
     207. See Leocal, 125 S. Ct. at 383-84.
     208. The statute makes it a felony if a person operates a vehicle while under the in-
fluence of alcohol and “by reason of such operation, causes . . . [s]erious bodily injury to
another.” FLA. STAT. § 316.193(3)(c)(2) (2003).
     209. See Leocal, 125 S. Ct. at 383. Even though physical force may be lacking, con-
viction may still be obtained under some state statutes. For example, in New York a person
may be guilty of driving while intoxicated even though the car’s engine was not running and
the person was asleep at the wheel. People v. Marriott, 325 N.Y.S.2d 177 (N.Y. App. Div.
1971); see also People v. Prescott, 745 N.E.2d 1000 (N.Y. 2001) (person trying to start vehi-
cle can be guilty of operating vehicle while intoxicated).
1010                           Michigan State Law Review                       [Vol. 2005:979

physical force suggested “a higher mens rea than merely accidental or neg-
ligent conduct.”210
      The same result follows under § 16(b), which requires that there
should be a substantial risk that a person will use physical force in commit-
ting the offense. Resorting again to the ordinary or natural use of the lan-
guage, the Court found that a person does not risk having to use physical
force against somebody else while driving in an intoxicated condition.211
There is a difference between the risk of injury and the risk that physical
force may be used in the course of committing the offense. There are many
offenses that involve a substantial risk of injury without the use of physical
force.212 This is not to say that substantial harm may not flow from intoxi-
cated driving, but the statute calls for a substantial risk that physical force
may be used in committing the offense and the offense is complete when the
driver operates the vehicle, not when an accident occurs.213 In any event,
the physical force demanded by the statute is not readily apparent. It could
hardly be the driver’s use of the accelerator or the crashing of the automo-
bile, because neither of these actions amounts to the use of physical force in
committing the driving offense.214 In sum, although the use of physical


     210. Leocal, 125 S. Ct. at 382 (citing United States v. Trinidad-Aquino, 259 F.3d
1140, 1145 (9th Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 609 (7th Cir. 2001)).
     211. See id. at 383. The Court explained: “The reckless disregard in § 16 relates not
to the general conduct or to the possibility that harm will result from a person’s conduct, but
to the risk that the use of physical force against another might be required in committing a
crime.” Id. The Seventh Circuit took its turn in United States v. Rutherford and concluded
there was a serious potential risk of physical injury in drunk driving, but that drunk driving
did not involve use of physical force under the sentencing guidelines. United States v. Ruth-
erford, 54 F.3d 370, 374-76 (7th Cir. 1995).
     212. See United States v. Lucio-Lucio, 347 F.3d 1202, 1206 (10th Cir. 2003); United
States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001); United States v. Parson, 955 F.2d
858, 866 (3d Cir. 1992).
     213. As the court explained in Dalton, “the language of § 16(b) fails to capture the
nature of the risk inherent in drunk driving. This risk is, notoriously, the risk of an ensuing
accident; it is not the risk that the driver will ‘use physical force’ in the course of driving the
vehicle.” Dalton v. Ashcroft, 257 F.3d 200, 206 (2d Cir. 2001). In United States v. Lucio-
Lucio, the Tenth Circuit explained the difference between burglary, which falls under §
16(b), and drunk driving, which does not:
     A burglar is reckless of the risk of committing an intentional act of violence; a
     drunk driver is reckless of the risk that he will accidentally cause harm. Whatever
     the precise degree of intent necessary to separate violent conduct from conduct that
     leads to harmful consequences, it seems plain that DWI resulting in an accident—
     which, when it happens, is a purely unintended result—falls into the latter cate-
     gory. Hence, DWI is not within the ambit of § 16(b).
Lucio-Lucio, 347 F.3d at 1206.
     214. See Dalton, 257 F.3d at 206 (“The physical force used cannot reasonably be
interpreted as a foot on the accelerator or a hand on the steering wheel.”); Bazen-Reyes v.
INS, 256 F.3d 600, 611 (7th Cir. 2001) (opening car door or pressing accelerator is not the
equivalent of using force as required by § 16(b)); Sareang Ye v. INS, 214 F.3d 1128, 1133-
Winter]            INA Admission and Cancellation of Removal                          1011

force involves a risk of injury, it does not follow that all crimes involving a
risk of injury will involve a use of physical force. A person’s use of physi-
cal force must relate to the predicate offense (driving under the influence),
and it has nothing to do with the consequences of his negligent conduct.
Therefore, a statute like Florida’s does not make the offense a crime of vio-
lence, and thus an aggravated felony, because a person does not have to use
force, and there need not be a substantial risk that he will use such force, in
order to be guilty of the offense.215
      Leaving nothing to chance, the Supreme Court in Leocal reinforced its
interpretation of 18 U.S.C. § 16 by recognizing Congress’s separate treat-
ment in section 101(h) of the INA of the crime of violence and the crime of
driving under the influence of alcohol.216 It was a fitting conclusion to the
Court=s explanation of the troublesome § 16. If Congress made its point in
section 101(h)217 by separating the two crimes, the Court really had no
choice but to reject the inclusion of the driving offense in § 16.
      Section 16(b) comes into play in the context of other crimes. In Job-
son v. Ashcroft,218 the alien was convicted of manslaughter in the second
degree because he recklessly caused the death of another person.219 In find-
ing no crime of violence under § 16(b), the court was careful to point out
the difference between the use of physical force in the commission of a
crime and the risk that the commission of the crime will result in physical
injury.220 The scope of the New York statute at issue in Jobson was broad in


34 (9th Cir. 2000) (vehicle burglary not a crime of violence under § 16(b) because entry into
locked vehicle can be obtained short of using violent physical force).
     215. See Leocal, 125 S. Ct. at 383-84; see also Chapa-Garza, 243 F.3d at 926; Ba-
zan-Reyes, 256 F.3d at 607; Dalton, 257 F.3d at 206; Lucio-Lucio, 347 F.3d at 1202; In Re
Ramos, 23 I. & N. Dec. 336, 347 (BIA 2002).
     216. See Leocal, 125 S. Ct. at 384 (quoting INA § 101(h), 8 U.S.C. § 1101(h)
(2000)).
     217. Section 101(h) defines the term “serious criminal offense” as
     (1) any felony;
     (2) any crime of violence, as defined in section 16 of title 18; or
     (3) any crime of reckless driving or of driving while intoxicated or under the influ-
     ence of alcohol or of prohibited substances if such crime involves personal injury
     to another.
INA § 101(h), 8 U.S.C. § 1101(h) (2000).
     218. 326 F.3d 367 (2d Cir. 2003).
     219. Since the alien was convicted of manslaughter in the second degree under §
125.15(1) of the New York Penal Law, the issue was whether he was therefore deportable
under section 237(a)(2)(A)(iii) for having been convicted of an aggravated felony under
section 101(a)(43) of the INA. See id. at 369. In turn, that depended on whether the alien
had committed a crime of violence as that term is defined in 18 U.S.C. § 16. See id.
     220. See id. at 373 (“The risk of serious physical injury concerns the likely effect of
the defendant’s conduct, but the risk in section 16(b) concerns the defendant’s likely use of
violent force as a means to an end.”); see also Dalton, 257 F.3d at 207-08; Bazan-Reyes, 256
F.3d at 609-10; Chapa-Garza, 243 F.3d at 925.
1012                            Michigan State Law Review                       [Vol. 2005:979

the sense that a person could be convicted for passive conduct, and there
was no substantial risk that the person would use physical force against
somebody else.221
      It is true that the recklessness contemplated by the New York statute
might lead to physical injury, but that might occur as a result of an accident,
and not as a result of any intentional use of physical force by the actor.222
The generic elements in the statute are the person’s recklessness and the
resulting death.223 But the recklessness contemplated does not relate to the
substantial risk that a person will use physical force,224 and so the New York
statute does not contain the essential ingredients of § 16(b). There is no
crime of violence unless there is a substantial risk of the use of physical
force and that use must be intentional.225 A second-degree conviction for
manslaughter is predicated on recklessness and this removes the element of
intent that § 16(b) requires. The kind of risk involved in a § 16(b) offense is
the risk that the alien will apply physical force, and not the risk that an acci-
dent will occur.226
      It is understandable that there is potential for confusion about treating
second-degree manslaughter as a crime of violence simply because a death
is always involved. But one must be careful to avoid that confusion because
§ 16(b) requires that there be a risk of the use of force, and not that there be
a risk of injury.227 The death that results in a charge of manslaughter does
not change the nature of the risk covered by § 16(b). Manslaughter is in-
deed a serious offense, but § 16(b)’s definition of a crime of violence does
not purport to include all serious offenses.228 Thus, it is no answer to say

     221. See Jobson, 326 F.3d at 373; People v. Hart, 698 N.Y.S.2d 357 (N.Y. App. Div.
1999) (driving all-terrain vehicle with child in it without protective head gear); People v.
Salley, 544 N.Y.S.2d 680 (N.Y. App. Div. 1989) (failure to provide medical care) (citing
People v. Stubbs, 504 N.Y.S.2d 235 (N.Y. App. Div. 1986) (failure to feed a child)).
     222. See Jobson, 326 F.3d at 373; see also Bazan-Reyes, 256 F.3d at 610-11.
     223. See Jobson, 326 F.3d at 373. The felony offense in Jobson required only “reck-
lessness—conscious disregard—with respect to a substantial risk of death, but not with re-
spect to a substantial risk of use of force.” Id. at 374; see also Oyebanji v. Gonzales, 418
F.3d 260 (3d Cir. 2005) (recklessness required for conviction of vehicular homicide not
enough to make it a crime of violence); Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir.
2005) (reckless disregard for human life not enough to make offense a crime of violence).
     224. The statute provides that a person is guilty of manslaughter in the second degree
when “he recklessly causes the death of another person.” N.Y. PENAL LAW § 125.15(1)
(McKinney 2004).
     225. The definition that was relevant in Jobson with respect to a crime of violence
was “a felony . . . that, by its nature, involves a substantial risk that physical force . . . may be
used in the course of committing the offense.” 18 U.S.C. § 16(b) (2000).
     226. See Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001); United States v.
Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001).
     227. See Jobson, 326 F.3d at 374.
     228. See Bazan-Reyes v. INS, 256 F.3d 600, 610 (7th Cir. 2001); Chapa-Garza, 243
F.3d at 925.
Winter]            INA Admission and Cancellation of Removal                          1013

that because the alien’s conduct has resulted in the death of another, it is
serious enough to constitute a crime of violence.
      Nevertheless, the result should be different for a first-degree man-
slaughter conviction, which requires the intent to cause either serious injury
or death to another person.229 The intent under these circumstances can be
distinguished from the kind of passive conduct recognized in Jobson that,
although resulting in injury, does not involve the application of physical
force by the defendant.230 First-degree manslaughter is a crime that, by its
nature, involves a substantial risk that the person involved may intentionally
use physical force in committing the crime. It is not necessary to show that
a person will use physical force in all circumstances, for a categorical ap-
proach to the statute merely inquires about the substantial risk inherent in
the offense.231

    III. CANCELLATION OF REMOVAL FOR NONPERMANENT RESIDENTS

A. Conviction of an Offense

      Section 240A(b)(1) sets forth the general rule for a nonpermanent
resident to be eligible for cancellation of removal.232 One requirement is
that the alien has not been convicted of an offense under section
212(a)(2).233 Although an alien who has been convicted of a crime involv-
ing moral turpitude is still admissible because of the petty offense exception
in section 212(a)(2)(A)(ii),234 the question is whether that exception should
also apply to cancellation of removal.


     229. See Jobson, 326 F.3d at 375.
     230. See In re Vargas, 23 I. & N. Dec. 651 (BIA 2004). The statute under which the
alien was convicted in Vargas required proof of intent to cause death or physical injury. See
N.Y. PENAL LAW § 125.20(1), (2) (McKinney 2004). The BIA took the view that “when a
defendant who intends to cause death or serious physical injury to another person deliber-
ately engages in conduct that results in death, the inherent nature of the crime is such that
there is a substantial risk that the defendant may intentionally use force in committing the
crime.” In re Vargas, 23 I. & N. Dec. at 654. Cf. Dickson v. Ashcroft, 346 F.3d 44, 51 (2d
Cir. 2003) (explaining that the “unlawful imprisonment of a competent adult under New
York law always involves either the use or risk of force, and will always be a crime of vio-
lence pursuant to § 16”).
     231. The New York statute in Jobson provided that a person would be guilty of sec-
ond-degree manslaughter if he recklessly caused the death of another person. See Jobson,
326 F.3d at 372 (quoting N.Y. PENAL LAW § 125.15(1)). The court noted that “the offense
requires only recklessness—conscious disregard—with respect to a substantial risk of death,
but not with respect to a substantial risk of use of force.” Id. at 374.
     232. See INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1) (2000).
     233. See INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).
     234. The exception provides as follows:
     Clause (i)(I) shall not apply to an alien who committed only one crime ifC
1014                         Michigan State Law Review                    [Vol. 2005:979

       In In re Garcia-Hernandez,235 the BIA had an opportunity to answer
this question. It agreed that an alien who has been convicted of a crime
involving moral turpitude that falls within the petty offense exception, is
eligible for cancellation of removal under section 240A(b)(1)(C).236 The
BIA apparently interpreted the exception as wiping out the conviction to
sustain the alien’s eligibility.237 There is another possible interpretation in
this context. An alien who benefits from the exception does not have his
slate wiped clean, but instead has his inadmissibility waived because of his
age or the penalty attached to the crime. The introductory language to the
exception recognizes that the section covers an alien who has committed
only one crime.238 It does not purport to remove the crime itself. Therefore,
when section 240A(b)(1)(C) requires that the alien must not be convicted of
an offense under section 212(a)(2), it does not deal with the alien’s inadmis-
sibility, but rather with the alien’s conviction.239 If Congress wanted to in-
volve the exception in a determination of the alien’s eligibility for cancella-
tion, it would have required the alien to show that he was not convicted of a
crime under section 212(a)(2) which rendered him inadmissible. As it
stands, section 240A(b)(1)(C) refers only to a conviction, and even if sec-




      (I) the crime was committed when the alien was under 18 years of age, and the
      crime was committed (and the alien released from any confinement to a prison or
      correctional institution imposed for the crime) more than 5 years before the date of
      application for a visa or other documentation and the date of application for admis-
      sion to the United States, or
      (II) the maximum penalty possible for the crime of which the alien was convicted
      (or which the alien admits having committed or of which the acts that the alien
      admits having committed constituted the essential elements) did not exceed im-
      prisonment for one year and, if the alien was convicted of such crime, the alien was
      not sentenced to a term of imprisonment in excess of 6 months (regardless of the
      extent to which the sentence was ultimately executed).
INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii) (2000).
      235. 23 I. & N. Dec. 590 (2003).
      236. See id. at 593.
      237. See id.
      238. The exception provides that “[c]lause (i)(I) shall not apply to an alien who com-
mitted only one crime.” INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).
      239. It is noteworthy that the special rule for a battered spouse or child allows the
Attorney General to cancel removal of an alien if “the alien is not inadmissible under para-
graph (2) or (3) of section 1182(a) [212(a)].” INA § 240A(b)(2)(A)(iv), 8 U.S.C. §
1229b(b)(2)(A)(iv) (2000). This subsection deals with admissibility, so that the mere convic-
tion would not disqualify an alien who is covered by the petty offense exception. The con-
viction must make the alien inadmissible. On the other hand, section 240A(b)(1)(C) deals
with conviction, and does not require a determination of inadmissibility. See INA §
240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C). One wonders why Congress made this distinc-
tion in the same section dealing with cancellation of removal.
Winter]            INA Admission and Cancellation of Removal                            1015

tion 212(a)(2)(A)(ii) removes the disability flowing from the conviction, it
does nothing to forgive the conviction itself.240
       When the INA wants to forgive the conviction itself, it does so in plain
terms. For example, an alien who has been convicted of domestic violence
still qualifies for consideration under the cancellation of removal section if
the Attorney General grants a waiver under section 237(a)(7).241 If Con-
gress did not include the language in section 240A(b)(1)(C) that relates to a
waiver in section 237(a)(7) for victims of domestic violence, then the mere
conviction for domestic violence would disqualify the alien from considera-
tion.242 If Congress went to the trouble of keeping the convicted alien’s
hopes alive with the waiver language applicable to domestic violence, one
must be curious about the reasons for not expressly including in section
240A(b)(1)(C) a reference to the exception in section 212(a)(2) that protects
an alien convicted for a crime involving moral turpitude. There is no justi-
fication for the waiver language unless Congress wanted to ensure that an
alien with a domestic violence conviction would still be eligible under the

     240. Section 212(a)(2)(A) of the INA has two grounds of inadmissibility: one cover-
ing crimes involving moral turpitude and the other covering drug offenses. See INA §
212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i). The exception relates to crimes of moral turpi-
tude, and not to drug offenses. When the statute says that “[c]lause (i)(I) shall not apply to
an alien who committed only one crime,” it means that an alien convicted of only one crime
involving moral turpitude will still be admissible despite such a conviction (assuming he is
otherwise admissible). See INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i). Both he and
the drug offender under clause (i)(II) will still be regarded as having been convicted, but the
exception in clause (ii) forgives the conviction for crimes involving moral turpitude for pur-
poses of determining whether the alien is admissible or not. See INA § 212(a)(2)(A)(ii), 8
U.S.C. § 1182(a)(2)(A)(ii).
     241. The Attorney General may cancel removal if the alien “has not been convicted
of an offense under section 1182(a)(2) [212(a)], 1227(a)(2) [237(a)(2)], or section 1227(a)(3)
[237(a)(3)], (except in a case described in section 1227(a)(7) [237(a)(7)], where the Attorney
General exercises discretion to grant a waiver).” INA § 240A(b)(1)(C), 8 U.S.C. §
1229b(b)(1)(C).
     242. The waiver provision reads as follows:
     The Attorney General is not limited by the criminal court record and may waive
     the application of paragraph (2)(E)(i) (with respect to crimes of domestic violence
     and crimes of stalking) and (ii) in the case of an alien who has been battered or
     subjected to extreme cruelty and who is not and was not the primary perpetrator of
     violence in the relationship B
     (i) Upon a determination that B
     (I) the alien was acting is [sic] self-defense;
     (II) the alien was found to have violated a protection order intended to protect the
     alien; or
     (III) the alien committed, was arrested for, was convicted of, or pled guilty to
     committing a crime B
     (aa) that did not result in serious bodily injury; and
     (bb) where there was a connection between the crime and the alien’s having been
     battered or subjected to extreme cruelty.
INA § 237(a)(7)(A), 8 U.S.C. § 1227(a)(7)(A) (2000).
1016                          Michigan State Law Review                     [Vol. 2005:979

cancellation provision once he obtains the necessary waiver under section
237(a)(7). One must notice the difference in language between section
240A(b)(1)(C), which denies cancellation of removal to an alien who has
been convicted of an offense under section 212(a)(2), and section
240A(b)(2)(A)(iv), which denies relief if the alien is inadmissible under
section 212(a)(2).243 The shift from “convicted” to “inadmissible” in the
same section sends the message that Congress required something more
than mere conviction to deny relief to an alien qualified under the special
cancellation rule for battered spouses and children.244 It seems reasonable
that Congress was trying to make a distinction by providing a different for-
mulation for the two situations.

B. Good Moral Character

      An alien who is not of good moral character cannot qualify for cancel-
lation of removal under section 240A(b)(1)(B).245 It is open to question
whether an alien who is convicted of a crime falling within the petty offense
exception of section 212(a)(2)(A)(ii) is an alien described in section
212(a)(2)(A) for purposes of the definition of good moral character. Under
section 101(f)(3), a person cannot be of good moral character if he is “a
member of one or more of the classes of persons, whether inadmissible or
not, described in . . . subparagraphs (A) and (B) of section [212(a)(2)].”246
The Garcia-Hernandez approach gave full recognition to the petty offense
exception.247 The BIA did not place much stock in the fact that the petty
offense exception merely removes the alien’s inadmissibility.248 Section
101(f)(3) itself recognizes that a person described in section 212(a)(2)(A)

      243. Compare INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C) (denying relief if the
alien has been convicted of a § 212(a)(2) offense), with INA § 240A(b)(2)(iv), 8 U.S.C. §
1229b(b)(2)(iv) (denying relief if the alien is inadmissible under § 212(a)(2)).
      244. By using the term “inadmissible” in section 240A(b)(2)(A)(iv), Congress has
sent the message that the petty offense exception in section 212(a)(2)(A)(ii) would rescue an
alien who would be otherwise inadmissible because of his conviction of a crime involving
moral turpitude. The alien’s conviction is still a matter of record but the exception renders
the alien’s conviction moot in this case. See INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A).
      245. A nonpermanent resident seeking relief must, among other requirements, show
that he has been physically present in the United States for a continuous period of at least ten
years immediately preceding his application and that he has been of good moral character
during that period. INA § 240A(b)(1)(A), (B), 8 U.S.C. § 1229b(b)(1)(A), (B).
      246. INA § 101(f)(3), 8 U.S.C. § 1101(f)(3) (2000).
      247. See In re Garcia-Hernandez, 23 I. & N. Dec. 590, 593 (BIA 2003).
      248. At least the BIA was consistent in interpreting the term “convicted” in section
240A(b)(1)(C) and the term “described” in section 101(f)(3). See id. It was the BIA’s view
that the petty offense exception took the alien out of the statute both for purposes of deter-
mining under section 240A(b)(1)(C) whether the alien was “convicted” or whether the alien
was “described” in section 212(a)(2) for purposes of determining good moral character. See
id.
Winter]            INA Admission and Cancellation of Removal                            1017

cannot qualify as a person of good moral character, “whether inadmissible
or not.”249 It seems, therefore, that section 101(f)(3) separates the fact of
conviction from the issue of inadmissibility.250
      In Garcia-Hernandez, the BIA was not unmindful of the phrase
“whether inadmissible or not.”251 It explained that the language did not
show that the petty offense exception was inapplicable, but rather that it
should properly be interpreted as merely describing an alien covered under
section 212(a)(2)(A), whether the alien is inadmissible or removable.252 It is
understandable that the BIA would take this position because it had already
decided under the former statute that the language “whether excludable or
not” was intended to cover aliens in both exclusion and deportation pro-
ceedings.253 The substitution of “inadmissible” for “excludable” merely
reflected the IIRIRA’s elimination of exclusion proceedings.254 It is open to
question, however, whether Congress would have gone out of its way to
complicate matters when it could simply have clarified that it intended to
cover aliens who were either inadmissible or removable. It is possible that
Congress did not have an alien’s deportability in mind when it used the
phrase “whether inadmissible or not” in section 101(f)(3).255 It is reasonable
to read the section as covering an alien who is convicted regardless of
whether the alien benefits from some waiver or exception.256 Section
101(f)(3) covers only aliens described in particular paragraphs of section
212(a), which all relate to inadmissibility. Thus, the mere conviction of the
alien seems to disqualify the alien from being designated as a person of
good moral character. The decision about the alien’s admissibility should
not affect the alien’s inclusion in section 101(f)(3).

     249. INA § 101(f)(3), 8 U.S.C. § 1101(f)(3).
     250. This is the purpose of the phrase “inadmissible or not.” The statute highlights
the type of alien covered by section 212(a)(2)(A) without worrying about inadmissibility on
the basis of the alien’s conduct. It is usually presumed that every word in a statute has mean-
ing. See 2A SINGER, supra note 191, at § 46:6.
     251. See Garcia-Hernandez, 23 I. & N. Dec. at 592 (quoting INA § 101(f)(3), 8
U.S.C. § 1101(f)(3)).
     252. See id. at 593.
     253. See In re M, 7 I. & N. Dec. 147, 150-51 (BIA 1956).
     254. See IIRIRA § 308(d)(3)(A), Pub. L. No. 104-209, Div. C, 110 Stat. 3009-546
(1996) (codified at INA § 101(f)(3), 8 U.S.C. § 1101(f)(3)).
     255. All the persons referred to in section 101(f)(3) are aliens described in certain
paragraphs of section 212(a), which deals with inadmissibility only. See INA § 212(a), 8
U.S.C. § 1182(a) (2000). Therefore, the description concerns aliens so identified, whether
they were inadmissible or not. It is not necessary to go outside section 212 to make sense of
the statute. Congress must have wanted to identify certain conduct that would prevent an
alien from qualifying as a person of good moral character.
     256. This interpretation gives meaning to the term “inadmissible or not.” See INA §
101(f)(3), 8 U.S.C. § 1101(f)(3). If the “described in” reference includes the exception in
section 212(a)(2)(A)(ii) so that an alien convicted of a petty offense would fall outside the
statute, it seems that the reference to inadmissibility in section 101(f) is redundant.
1018                          Michigan State Law Review                     [Vol. 2005:979

C. Development of the Hardship Criteria

      The degree of hardship required for relief has changed over the years.
Before 1940, the Attorney General had no power to suspend an alien’s de-
portation,257 and an alien had to seek his remedy through a private bill in
Congress.258 In 1940, Congress made it a little easier for aliens by authoriz-
ing the Attorney General to suspend deportation for those aliens whose re-
moval from the United States would result in serious economic detriment to
them or their close relatives.259 Congress was not yet ready to extend the
grounds of relief to extreme hardship, but it was a step in the right direction
as far as aliens were concerned. At least the change provided aliens an op-
portunity to make their case against deportation, and made it possible to
draw a sharp contrast between the economic opportunities available in the
United States and those available abroad. The longer an alien remained
here, the better off he was in building his case for relief.
      It was not until 1952 that an alien had to prove “exceptional and ex-
tremely unusual hardship” if he wanted his deportation to be suspended.260
This new standard, originating in section 244 of the INA,261 was intended to
restrict the remedy to a limited category of aliens. While not opening the
floodgates to aliens at large, Congress nevertheless wanted to ensure that
meritorious aliens would get the protection they deserved.262 It was under-
stood that no alien would be deported if it would be unconscionable to do




     257. The Immigration Act of 1924 contained but one proviso:
     Any alien who at any time after entering the United States is found to have been at
     the time of entry not entitled under this Act to enter the United States, or to have
     remained therein for a longer time than permitted under this Act or regulations
     made thereunder, shall be taken into custody and deported in the same manner as
     provided for in sections 19 and 20 of the Immigration Act of 1917: Provided, That
     the Secretary of Labor may, under such conditions and restrictions as to support
     and care as he may deem necessary, permit permanently to remain in the United
     States, any alien child who, when under sixteen years of age was heretofore tempo-
     rarily admitted to the United States and who is now within the United States and
     either of whose parents is a citizen of the United States.
Immigration Act of 1924, ch. 190, § 14, 43 Stat. 162.
     258. See INS v. Chadha, 462 U.S. 919, 934 (1983); 6 GORDON ET AL., supra note 34,
§ 74.07[2][a].
     259. The statute gave the Attorney General the authority to suspend an alien’s depor-
tation if it would result in “serious economic detriment to a citizen or legally resident alien
who [was] the spouse, parent, or minor child of such deportable alien.” Alien Registration
Act of 1940, ch. 439, § 20, 54 Stat. 672.
     260. Immigration and Nationality Act of 1952, ch. 47, § 244(a)(1), 66 Stat. 163, 214.
     261. Id.
     262. See H.R. REP. NO. 82-1365, at 68 (1952), as reprinted in 1952 U.S.C.C.A.N.
1653, 1718.
Winter]            INA Admission and Cancellation of Removal                            1019

so.263 But this standard was applied inconsistently, and there was no guaran-
tee relief would be granted only in exceptional circumstances.264 The BIA
tried to give an even-handed interpretation to the new terminology, but,
even so, some aliens obtained relief under circumstances that would not
generate much sympathy today. It was not unusual for the BIA to concen-
trate on the length of the alien’s residence in the United States.265
       The immediate post-1952 cases applied the hardship standard to all
applicants for suspension of deportation, and many of them concentrated on
hardship to the alien himself,266 a consideration which is no longer accom-
modated under section 240A.267 Congress tinkered with the suspension stat-
ute again in 1962, when it collapsed the five subsections into two by retain-
ing the exceptional and extremely unusual hardship standard for aliens who
had committed certain offenses, and crafting a new “extreme hardship”
standard for all other aliens.268 The BIA and the courts had to deal with a

     263. A congressional committee gave some idea of the meaning of “exceptional and
extremely unusual hardship” when it was considering Senate Bill 2550. It said that the sus-
pension remedy “should be available only in the very limited category of cases in which the
deportation of the alien would be unconscionable.” S. REP. NO. 82-1137, at 25 (1952);
Asikese v. Brownell, 230 F.2d 34, 36 (D.C. Cir. 1956); see also In re C, 7 I. & N. Dec. 608,
610 (BIA 1957); In re M, 5 I. & N. Dec. 261, 270 (BIA 1953).
     264. See In re M, 7 I. & N. Dec. at 147, In re S, 5 I. & N. Dec. 409 (BIA 1953); In re
H, 5 I. & N. Dec. 416 (BIA 1953); In re W, 5 I. & N. Dec. 586 (BIA 1953).
     265. See, e.g., In re S, 5 I. & N. Dec. at 409 (alien resident in the United States for
twenty-eight years); In re Z, 7 I. &. N. Dec. 253 (BIA 1956) (alien resident in the United
States for forty-seven years); In re H, 5 I. & N. Dec. at 416 (alien had lived in the United
States for twenty-four years); In re Z, 5 I. & N. Dec. 419 (BIA 1953) (alien resident in the
United States for twenty-nine years).
     266. See In re C-T-H-, 8 I. & N. Dec. 105 (BIA 1958); In re H, 5 I. & N. Dec. at 416;
In re Z, 5 I. & N. Dec. at 419; In re J, 5 I. & N. Dec. 509 (BIA 1953).
     267. The current statutory language requires the nonpermanent resident alien to prove
that his removal would result in exceptional and extremely unusual hardship to “the alien=s
spouse, parent, or child.” INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D) (2000).
     268. Section 244(a) was amended in 1962 to read as follows:
     As hereinafter prescribed in this section, the Attorney General may, in his discre-
     tion, suspend deportation and adjust the status to that of an alien lawfully admitted
     for permanent residence, in the case of an alien who applies to the Attorney Gen-
     eral for suspension of deportation andC
     (1) is deportable under any law of the United States except the provisions specified
     in paragraph (2) of this subsection; has been physically present in the United States
     for a continuous period of not less than seven years immediately preceding the date
     of such application, and proves that during all of such period he was and is a per-
     son of good moral character; and is a person whose deportation would, in the opin-
     ion of the Attorney General, result in extreme hardship to the alien or to his spouse,
     parent, or child, who is a citizen of the United States or an alien lawfully admitted
     for permanent residence; or
     (2) is deportable under paragraphs (4), (5), (6), (7), (11), (12), (14), (15), (16), (17),
     or (18) of section 241(a); has been physically present in the United States for a
     continuous period of not less than ten years immediately following the commission
1020                         Michigan State Law Review                     [Vol. 2005:979

single standard between 1952 and 1962, and therefore found a different
challenge in the post-1962 period when they had to make a distinction be-
tween extreme hardship and exceptional and extremely unusual hardship.269
This choice between two different standards nevertheless gave the BIA and
the courts an opportunity to be more generous towards aliens. It was only a
question of time before Congress became concerned about this judicial ap-
proach to suspension of deportation, and thus, in 1996, it opted again for a
single standard of exceptional and extremely unusual hardship and restricted
such hardship to an alien’s close relatives.270
      There has been a marked shift over the last fifty years in the way that
aliens have been treated in their quest for relief. In the early days of the
application of the standard of exceptional and extremely unusual hardship to
the alien, or to his spouse, parent, or child, the BIA looked at the alien’s
length of residence in the United States, his family ties, the possibility of the
alien’s getting a visa abroad, the financial burden of having to go abroad for
a visa, and the health and age of the alien. The BIA did not require that all
these factors be present in every case, but looked favorably at any case con-
taining several of them.
      In In re S,271 the alien entered illegally from Canada and stayed on for
twenty-eight years.272 She was single and had no close family ties in the
United States.273 The quota for the dependent colony of St. Kitts was over-
subscribed, and the alien had to wait a long time for a visa.274 The alien had


     of an act, or the assumption of a status, constituting a ground for deportation, and
     proves that during all of such period he has been and is a person of good moral
     character; and is a person whose deportation would, in the opinion of the Attorney
     General, result in exceptional and extremely unusual hardship to the alien or to his
     spouse, parent, or child, who is a citizen of the United States or an alien lawfully
     admitted for permanent residence.
Act of Oct. 24, 1962, Pub. L. No. 87-885, § 4, § 244(a), 76 Stat. 1247, 1247-48 (amending §
244(a) of the INA).
     269. The BIA pointed out that “[p]rior to the [1962] amendment the degree of hard-
ship was described in all five paragraphs of § 244(a) as ‘exceptional and extremely unusual.’
This degree of hardship was retained in paragraph (2) of the amended version of section
244(a) which relates to suspending the deportation of aliens deportable as undesirables, sub-
versives and criminals.” In re Hwang, 10 I. & N. Dec. 448, 449 (BIA 1964). While admit-
ting that Congress intended to reduce the kind of hardship necessary for relief with the
amendment of paragraph (1) of section 244(a), the BIA in Hwang nevertheless conceded that
“[t]he term ‘extreme hardship’ . . . admits of varying degrees of severity.” Id. at 451. There
was no definitive rule for establishing the limits of “personal deprivation and economic det-
riment” necessary to fit the bill. Id.
     270. See IIRIRA, Pub. L. No. 104-208, Div. C, § 304(a)(3), 110 Stat. 3009-594
(1996) (codified at INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D) (2000)).
     271. 5 I. & N. Dec. 409 (BIA 1953).
     272. See id. at 410.
     273. See id. at 411.
     274. See id.
Winter]             INA Admission and Cancellation of Removal                               1021

limited assets and worked at a nursery for $48 per week.275 She had never
worked in St. Kitts and she believed that she would find it difficult to obtain
employment there.276 There was no problem with her health or her age.277
Here was a case where the alien satisfied three of the five criteria, and the
BIA seemed entirely satisfied that the alien had met the high statutory stan-
dard. The most compelling aspect of the alien’s plea for relief was her long
period of residence within the United States.278 It might fairly be said that
the other two criteria that she satisfied were not truly exceptional and un-
usual, because most aliens experience some kind of financial burden in re-
locating to their native country.279 The BIA was convinced that the alien
would have had a difficult time in charting a new path after her long resi-
dence in the United States, despite not having any dependents. The alien
had a dependable job, but there was no assurance that she could obtain em-
ployment in St. Kitts. Thus, the BIA did not see this as a mere reduction in
the alien’s standard of living, but rather as a lack of opportunity to make a
living.280 In another case, decided one year later,281 the BIA was not as
charitable to the aliens. This time the aliens had no dependents and only
eight years’ residence in the United States.282 The other notable feature was
that the aliens would have had approximately the same income once they
returned to their own countries.283
      When all was said and done, the early emphasis was on the financial
aspects of the alien’s relocation and the attendant hardship on the alien’s
dependents. But even after the introduction of the extreme hardship stan-
dard in 1962, the BIA and the courts essentially concentrated on the same

     275. See id.
     276. See id.
     277. See id.
     278. The BIA seemed impressed by the fact that the alien had not entered surrepti-
tously and had no intention to avoid the rules until she could make use of the suspension
provision. See id. at 410-11.
     279. The BIA found exceptional and extremely unusual hardship “because of the
length of time [the alien] . . . lived in the United States, . . . the length of time it would take
her to obtain a visa in her native country, and because of her limited assets.” Id. at 411.
Since St. Kitts was, at that time, a British Colony, it had a quota of 100 visas. See INA, ch.
477, § 202(a), 66 Stat. 163, 176 (1952); see also WALTER M. BESTERMAN, COMMENTARY ON
THE IMMIGRATION AND NATIONALITY ACT, 1953 U.S.C.C.A.N. 2799, 2833. The alien would
have had to wait a long time for a visa if she had gone back to St. Kitts. Nevertheless, allow-
ing her to jump the queue did not necessarily square with the degree of hardship that the
statute demanded at that time.
     280. The alien argued that it would be difficult for her to obtain employment in St.
Kitts. See In re S, 5 I. & N. Dec. at 411. The alien had only $1,400 to her name, and thus
these limited assets plus the alien’s inability to get employment abroad tipped the scales in
the alien’s favor. See id.
     281. In re S, 5 I. & N. Dec. 695 (BIA 1954).
     282. See id. at 697.
     283. See id. at 696.
1022                          Michigan State Law Review                      [Vol. 2005:979

factors as before, and any differences in the cases depended on the degree to
which the decisionmakers emphasized certain elements. In In re Ander-
son,284 the BIA gave some guidance about the relevant factors for proving
extreme hardship. In doing so, it made no bones about the fact that an alien
could not have his deportation suspended simply because he would be un-
able to maintain a standard of living abroad to which he had grown accus-
tomed in the United States.285 Thus, the BIA would not accept financial
hardship or economic detriment as the overriding consideration for the
alien’s eligibility.286 In the BIA’s view, it was only when other factors
“such as advanced age, severe illness, family ties, etc. combine[d] with eco-
nomic detriment to make deportation extremely hard on the alien or the
citizen or permanent resident members of his family that Congress has au-
thorized suspension of the deportation order.”287 The BIA looked in vain for
adverse factors besides the desolate economy in the alien’s homeland, but
could find little to complete the picture of extreme hardship. The alien
could have resumed his career in the Dominican Republic without much
difficulty, and he had no family ties in the United States that would have
impeded his return.288
      The Anderson criteria provided an efficient framework for the deter-
mination of “extreme hardship.” It did not mean, however, that the BIA and
the courts were consistent all the time or that they emphasized all criteria
equally. In In re Kao and Lin,289 the BIA seemed impressed that the aliens’
children were “completely integrated into their American lifestyles.”290 The
aliens had five children who were born in the United States, and the BIA
held that the eldest daughter would suffer extreme hardship if her parents
were deported to Taiwan.291 The daughter was born and raised in the United
States, and the BIA believed that it would be difficult for her to survive in a


      284. 16 I. & N. Dec. 596 (BIA 1978).
      285. The BIA made the following observation:
      It is obvious . . . that laying critical emphasis on the economic and political situa-
      tion would mandate a grant of relief in most cases for it is a demonstrable fact that
      despite the beleaguered state of our own economy, the United States enjoys a stan-
      dard of living higher than that in most of the other countries of the world. For this
      reason, most deported aliens will likely suffer some degree of financial hardship.
      Nonetheless, we do not believe that Congress intended to remedy this situation by
      suspending the deportation of all those who will be unable to maintain the standard
      of living at home which they have managed to achieve in this country.
Id. at 598.
      286. See id.
      287. Id.
      288. See id.
      289. 23 I. & N. Dec. 45 (BIA 2001).
      290. Id. at 50.
      291. See id. at 51.
Winter]            INA Admission and Cancellation of Removal                         1023

Chinese-only environment.292 The emphasis in this case was on the social
and educational development of the aliens’ daughter. The BIA took full
account of the significant disruption that would result from the child’s relo-
cation to Taiwan. This time the BIA was caught up with one aspect of the
aliens’ petition, and it seemed that the other criteria receded into the back-
ground as the BIA observed that the child had lived her whole life in the
United States and knew little about the Chinese language or lifestyle.293
      The BIA was not of the same mind in In re Pilch,294 where the aliens
had six children, the eldest of whom was only six years old. Their tender
ages provided ample evidence that they were not completely integrated into
the American lifestyle.295 There was no indication that they would be de-
prived of educational opportunities if they went to Poland with their par-
ents.296 Furthermore, they had a strong support system of family members
back in Poland, which would allow them to settle down without much diffi-
culty.297 Although the Anderson factors suggested a framework for deter-
mining extreme hardship, it was evident that the BIA and the courts en-
gaged in a case-by-case assessment to decide whether the alien had met the
criteria for suspension of deportation.298 They had to consider the whole
range of factors to ascertain whether the alien’s situation exceeded the usual
deprivation ordinarily associated with deportation. It was the nature of the
alien’s suffering that commanded attention, but it was not necessary for
such suffering to be unique or unusual, if not there would be no discernible
difference between “extreme hardship” and “exceptional and extremely
unusual hardship.”
      This continuing struggle with the concept of “extreme hardship”
reached its climax in In re O-J-O.299 In that case, the twenty-four-year-old
alien had been living in the United States for over ten years.300 The BIA
was convinced that he had developed such strong ties in the United States
that his deportation to Nicaragua would cause “significant hardship on a
social and psychological level.”301 His significant church and community
ties had produced his assimilation into American culture and society.302 The


     292. See id. at 50.
     293. See id.
     294. 21 I. & N. Dec. 627 (BIA 1996).
     295. See id. at 632.
     296. See id.
     297. See id.
     298. See Jara-Navarrete v. INS, 813 F.2d 1340 (9th Cir. 1987); Ramos v. INS, 695
F.2d 181 (5th Cir. 1983); In re Ige, 20 I. & N. Dec. 880 (BIA 1994); In re Chumpitazi, 16 I.
& N. Dec. 629 (BIA 1978); In re Kim, 15 I. & N. Dec. 88 (BIA 1974).
     299. 21 I. & N. Dec. 381 (BIA 1996).
     300. See id.
     301. Id. at 385.
     302. See id. at 387.
1024                        Michigan State Law Review                   [Vol. 2005:979

BIA was also mindful of the “depressed economic conditions and volatile
political situation throughout Nicaragua.@303 Although the BIA conceded
that economic detriment alone was not enough to constitute extreme hard-
ship, the BIA still deemed it important to recognize such detriment as a fac-
tor in assessing the alien’s eligibility for relief.304 In this respect, the possi-
bility of losing a trucking business supported the alien’s case, since it was
the alien’s position that he could not establish the same kind of business in
Nicaragua because of the unfavorable economic and political conditions.305
      The majority in O-J-O conceded that this was a close case, and the
dissent was keen to point out the majority’s cavalier attitude toward the
application of the Anderson criteria.306 The dissent was surprised about the
majority’s emphasis on the alien’s community ties, when all along the BIA
had consistently paid more attention to an alien’s length of residence and
family ties in the United States.307 It was not unreasonable to ask why the
majority had emphasized the alien’s assimilation into American culture,
when one alien had come to the United States at age thirteen after spending
his formative years in Nicaragua.308
      Although, in all fairness, it must be said that the O-J-O majority took a
number of factors into account in deciding for the alien,309 its predominant

      303. Id. at 385.
      304. See id.
      305. See id.
      306. See id. at 404-05 (Filppu, Bd. Member, dissenting). The BIA articulated the
criteria in In re Anderson:
      [A]ge of the subject; family ties in the United States and abroad; length of resi-
      dence in the United States; condition of health; conditions in the country to which
      the alien is returnable—economic and political; financial status—business and oc-
      cupation; the possibility of other means of adjustment of status; whether of special
      assistance to the United States or community; immigration history; position in the
      community.
In re Anderson, 16 I. & N. Dec. 596, 597 (BIA 1978).
      307. See In re O-J-O, 21 I. & N. Dec. at 409 (Filppu, Bd. Member, dissenting).
      308. Board Member Filppu observed as follows:
      He was nearly 14 when he arrived here. His family came at about the same time,
      and he thus continued to be raised in a family with a Nicaraguan heritage at the
      same time that both he and other members of his family were adjusting to life here.
      He is as proficient in written and spoken Spanish as he is in English. The fact that
      he is “fully assimilated into American culture and society” does not mean that he
      would have any difficulty quickly assimilating once again into Nicaraguan culture
      and society.
Id.
      309. The majority captured the combination of factors supporting the alien’s relief
with the following language:
      The respondent has lived in the United States during his critical formative years.
      He has significant church and community ties in the United States. He is fully as-
      similated into American culture and society. This assimilation makes the prospect
      of readjustment to life in Nicaragua much harder than would ordinarily be the case.
Winter]            INA Admission and Cancellation of Removal                            1025

concern with the assimilation factor led to the observation in a congres-
sional report on IIRIRA that something had to be done about the rules af-
fecting suspension of deportation.310 The report claimed that recent BIA
decisions had weakened the “extreme hardship” standard by holding that the
removal of an alien who had become acclimated to the United States would
constitute sufficient hardship to justify suspension of deportation.311 It was
then that Congress decided to change the required standard from “extreme
hardship” to “extremely unusual hardship,” in order to emphasize that it was
necessary henceforth for the alien to show some evidence of hardship “to
his spouse, parent, or child substantially beyond that which ordinarily would
be expected to result from the alien’s deportation.”312
      One could not have predicted such a strong congressional reaction to
the O-J-O decision. Despite consideration of a combination of factors in
assessing the alien’s hardship, the BIA led off with an extensive discussion
of the alien’s assimilation into American life and culture that might have led
Congress into thinking that the additional hardship factors mentioned in O-
J-O were at the bottom of the totem pole.313 For example, the BIA consid-
ered the depressed economic conditions in Nicaragua as an additional fac-
tor, but then conceded that they were “somewhat speculative.”314 There was
no hint of speculation about “assimilation.” Nevertheless, the BIA also
considered economic detriment to the alien and the political conditions in
Nicaragua, and, taking all the factors together, found that the alien had ex-
ceeded the normal economic and social disruption in deportation.315 Thus,
even if there were grounds for questioning the BIA’s priority in treating the
various factors, there was no evidence that the BIA failed to appreciate their
cumulative effect.316
      Although Congress must have been dissatisfied with the liberal inter-
pretation of the BIA’s term “extreme hardship” in O-J-O, from time to time

      He would also face difficult economic and political circumstances in his native
      country, including the possible loss of an ongoing business concern.
Id. at 387.
      310. See H.R. REP. NO. 104-828, at 213 (1996) (Conf. Rep.).
      311. The report referred to In re O-J-O and observed that the ruling in that case
“would be inconsistent with the standard set forth in new section 240A(b)(1).” Id.
      312. Id.
      313. The BIA stressed that the alien “has assimilated into American life and culture.”
In re O-J-O, 21 I. & N. Dec. at 384. It considered “the degree of integration into American
society,” the alien’s immersion in the “social and cultural life of the United States,” and the
“strong ties” that the alien had formed. Id. at 384-85.
      314. Id.
      315. See id. at 385-86.
      316. The BIA has found itself subject to criticism on other occasions for failing to
consider all factors relating to an alien’s allegations of extreme hardship. See Turri v. INS,
997 F.2d 1306, 1311 (10th Cir. 1993); Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir.
1984).
1026                          Michigan State Law Review                     [Vol. 2005:979

courts have occasionally criticized the same BIA for ignoring some factors
in assessing an alien’s hardship. In Santana-Figueroa v. INS,317 it was the
BIA’s failure to recognize “the combined effect of depriving the [alien] of
his livelihood and uprooting him from a community to which he had be-
longed and contributed for more than a decade.”318 On another occasion, it
was the failure to consider the noneconomic hardships flowing from the
alien’s removal.319 The BIA has had to toe a fine line, trying to give proper
emphasis to the various components of an alien’s claim of extreme hard-
ship, while resisting the temptation to cling too closely to a narrow interpre-
tation of the term. It is true that the United States Supreme Court indicated
in INS v. Wang320 that it was permissible for the BIA to interpret “extreme
hardship” narrowly, but Wang involved a motion to reopen,321 and the alien
had only to make out a prima facie case before the BIA would grant the
motion.322

D. The 1996 Return to Exceptional and Extremely Unusual Hardship

      When Congress replaced suspension of deportation with cancellation
of removal in 1996, it intended to tighten the reins of relief.323 No longer is
it sufficient for an alien to show mere extreme hardship, for the new statu-
tory standard calls for a showing of exceptional and extremely unusual
hardship.324 Furthermore, an alien must prove that such hardship affects the



      317. 644 F.2d 1354 (9th Cir. 1981).
      318. Id. at 1357.
      319. See Mejia-Carrillo v. United States, 656 F.2d 520 (9th Cir. 1981).
      320. 450 U.S. 139 (1981).
      321. See id. at 145. The regulation governing motions to reopen states that “[a] mo-
tion to reopen proceedings shall state the new facts that will be proven at a hearing to be held
if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8
C.F.R. § 1003.2(c) (2005).
      322. See Wang, 450 U.S. at 141 (citing In re Lam, 14 I. & N. Dec. 98 (BIA 1972)).
The Court has noted that the regulation “requires that under certain circumstances a motion
to reopen be denied, but does not specify the conditions under which it shall be granted.”
INS v. Doherty, 502 U.S. 314, 322 (1992). There are at least three grounds on which the
BIA may deny a motion to reopen. They are (1) failure to comply with the regulation; (2)
failure to establish a prima facie case for the underlying remedy; and (3) denial on discre-
tionary grounds alone. See In re L-O-G, 21 I. & N. Dec. 413, 414 (BIA 1996).
      323. The Conference Report made the point that “[s]ection 240A(b)(1) replaces the
relief now available under INA § 244(a) (‘suspension of deportation’), but limits the catego-
ries of illegal aliens eligible for such relief and the circumstances under which it may be
granted.” H.R. REP. NO. 104-828, at 213 (1996) (Conf. Rep.).
      324. The Conference Report explained this change in language. The drafters wanted
to emphasize that “the alien must provide evidence of harm to his spouse, parent, or child
substantially beyond that which ordinarily would be expected to result from the alien’s de-
portation.” Id.
Winter]            INA Admission and Cancellation of Removal                             1027

alien’s spouse, parent or child, rather than the alien himself.325 When a
similar standard first appeared in the 1952 Act governing suspension of
deportation,326 Congress intended that relief should be available only in
those cases where it would be unconscionable to deport the alien.327 One
could not be sure how the post-1996 cases would be guided by the approach
of the early cases that followed this congressional mandate.
      The first opportunity came in In re Monreal,328 where a thirty-four-
year-old alien who had been living in the United States for twenty years
applied for cancellation of removal. The alien lived in the United States
with his two citizen children, aged twelve and eight respectively, while his
wife returned to Mexico with their infant child.329 The alien was the sole
support of his family.330 The BIA saw this case as a “good example of the
difference between the ‘extreme hardship’ and the ‘exceptional and ex-
tremely unusual hardship’” standards.331 It conceded that the alien’s
chances for relief would have been much greater if the “extreme hardship”
standard was applicable in this case, particularly since the BIA could con-
sider under that standard hardship to the alien himself.332 But here the BIA
had to look at the kind of hardship that would be visited on the alien’s chil-
dren or the alien’s parents if the alien was deported. The kind of hardship
that the BIA would consider under the heightened standard had to be “sub-
stantially different from, or beyond, that which would normally be expected
from the deportation of an alien with close family members here.”333 But
the BIA was unwilling to say in Monreal how it would find substantially
different hardship. It did not want to accept the “unconscionable” approach,
although it conceded that the standard must be high.334


      325. This represents a change from the previous language. Compare INA §
244(a)(1), 8 U.S.C. § 1254(a)(1) (1994) (extreme hardship to the alien or to his spouse, par-
ent, or child), and INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (exceptional and extremely un-
usual hardship to the alien, or to his spouse, parent, or child), with INA § 240A(b)(1)(D), 8
U.S.C. § 1229b(b)(1)(D) (2000) (exceptional and extremely unusual hardship to the alien=s
spouse, parent, or child).
      326. Immigration and Nationality Act of 1952, ch. 477, § 244(a)(1), Pub. L. No. 82-
414, 66 Stat. 163, 214.
      327. The Senate Report accompanying S.2550 left no doubt that “[h]ardship or even
unusual hardship to the alien or to his spouse, parent, or child [was] not sufficient to justify
suspension of deportation.” S. REP. NO. 82-1137, at 25 (1952).
      328. 23 I. & N. Dec. 56 (BIA 2001).
      329. See id. at 57.
      330. See id.
      331. Id. at 64.
      332. Had the statute permitted the BIA to consider extreme hardship to the alien, the
alien had the equities in his favor. He had twenty years’ residence in the United States, had
lost his job, and faced the prospect of separation from his parents and children. See id.
      333. Id. at 65.
      334. See id. at 60.
1028                         Michigan State Law Review                     [Vol. 2005:979

      Thus, the BIA searched for something between those two norms. Per-
haps the search might have been more fruitful if the BIA had not overlooked
the precedent bearing on the same “exceptional and extremely unusual hard-
ship” standard.335 It is true that many of the early cases concerned hardship
to the alien himself, and thus involved a slightly different focus. But not all
of them were of that vintage. Nevertheless, the BIA did not want to rely on
the fifty years of case law that dealt intermittently with one standard or the
other.336 It wanted to make a fresh start in a sense and, in so doing, it still
clung to the hardship that would normally be expected in suspension of de-
portation. So, in Monreal the alien’s two children would experience some
discomfort in going to Mexico, but their mother was already in Mexico with
their infant sibling.337 One might even justify the alien’s deportation as a
sort of reunion with the other half of his family, bearing in mind that the
alien could be regarded as merely taking on another assignment, in Mexico,
rather than continuing his work in the United States.338 The alien could not
convince the BIA that his hardship was substantially different from that
anticipated by any other alien subject to deportation. There was no evi-
dence that the alien would not find comparable employment back in Mex-
ico, and the children were at an age when they would easily adjust to life
abroad.339 The alien’s parents were living permanently in the United States
and were in good health.340 Therefore, the alien could not even depend on
them to buttress his hardship claim.

      335. See, e.g., Cortez-Castillo v. INS, 997 F.2d 1199 (7th Cir. 1993); In re Pena-Diaz,
20 I. & N. Dec. 841 (BIA 1994); In re S, 5 I. & N. Dec. 409 (BIA 1953); In re W, 5 I. & N.
Dec. 586 (BIA 1953).
      336. The cases that were decided under the original language of the 1952 statute
requiring exceptional and extremely unusual hardship adopted a standard of unconscionabil-
ity. See In re S, 5 I. & N. Dec. 695 (BIA 1954); In re H, 5 I. & N. Dec. 416 (BIA 1953).
The 1962 amendment to the INA introduced the extreme hardship standard and left the ex-
ceptional and extremely unusual hardship standard to deal with aliens who had committed
certain serious offenses. See Act of Oct. 24, 1962, Pub. L. No. 87-885, 4, 76 Stat. 1247,
1247-48 (repealed 1996). This shift in standards created problems in application of the law,
and the BIA in Monreal felt it had to create its own path to a solution. See Monreal, 23 I. &
N. Dec. at 58-63.
      337. One child was eight years of age and the other twelve. See Monreal, 23 I. & N.
Dec. at 57. They were both United States citizens. Id. at 57.
      338. The alien’s wife had already returned to Mexico with her infant, who was a
United States citizen. See id.
      339. See id. at 64. The BIA was not particularly impressed by the alien’s predica-
ment, since both the alien and his wife were originally from Mexico, and in some sense this
seemed to be an uneventful return to their native land. See id. But the children were all
United States citizens and the alien could have done a better job of evidencing the extraordi-
nary problems that the children would have in leaving their own country. Even Board Mem-
ber Rosenberg’s concurring and dissenting opinion acknowledged that the mother’s supposi-
tions about the children’s reaction to their father’s situation were “not substantiated in the
record.” Id. at 72 (Rosenberg, Bd. Member, dissenting).
      340. See id. at 65.
Winter]            INA Admission and Cancellation of Removal                           1029

       In Monreal the alien failed in his petition for relief. The alien in In re
Andazola341 obviously had hoped for a different result, but there was not
much cause for optimism in light of the similarity between the two cases.
The alien, a single woman, was a Mexican citizen who entered the United
States without inspection.342 Her two children, aged eleven and six, were
born in the United States.343 The alien had no relatives in Mexico who could
help the alien look after the children.344 The BIA realized that it could not
consider the children’s hardship in a vacuum, but had to compare it with
that of others in similar circumstances.345
       The alien could not depend upon an argument based on the economic
conditions in Mexico. The alien had tried it without success in Monreal,346
and the alien in Andazola was destined to return to the same place. 347 It was
not sufficient that the economic conditions in Mexico were not as favorable
for the alien as those in the United States.348 The BIA made the same obser-
vation about the educational opportunities in Mexico: although the alien’s
children would not get the same quality of education in Mexico, they would
still get an education.349 Nevertheless, the children in Andazola depended
for support upon their single mother and did not have any relatives in Mex-
ico who could look after them while their mother worked.350 At least in
Monreal there was a family unit in place for the children’s benefit. But in
Andazola, the alien had no real job skills and she could count on no assis-


     341. 23 I. & N. Dec. 319 (BIA 2002).
     342. See id. at 320.
     343. See id.
     344. See id.
     345. See id.
     346. See Monreal, 23 I. & N. Dec. at 63-64.
     347. See Andazola, 23 I. & N. Dec. at 320.
     348. See id. at 323. Even under the extreme hardship test, economic factors alone
could not make the case for an alien’s relief. There had to be other equities in the alien’s
favor. See, e.g., Palmer v. INS, 4 F.3d 482 (7th Cir. 1993); Santana-Figueroa v. INS, 644
F.2d 1354 (9th Cir. 1981); In re Pilch, 21 I. & N. Dec. 627 (BIA 1996); In re Anderson, 16 I.
& N. Dec. 596 (BIA 1978).
     349. See Andazola, 23 I. & N. Dec. at 323. The majority viewed the children as
having “diminished educational opportunities” in Mexico, but this did not equate to “excep-
tional and extremely unusual hardship.” Id. at 323 n.1; see also Gonzalez-Oropeza v. U.S.
Attorney General, 321 F.3d 1331, 1334 (11th Cir. 2003) (holding that the BIA properly
affirmed without opinion denial of relief where alien’s only basis for claim of exceptional
and extremely unusual hardship was quality of education in Mexico). On the other hand,
Board Member Espenoza, in her dissenting opinion, viewed the education in Mexico as
substandard and believed that the children would not obtain the necessary skills to hold their
own in the political system. See Andazola, 23 I. & N. Dec. at 327 (Espenoza, Bd. Member,
dissenting) (quoting Wisconsin v. Yoder, 406 U.S. 205, 221 (1972)). The dissent was im-
pressed by the benefits that would accrue to the children if they experienced the United
States educational system. Id. (citing Plyler v. Doe, 457 U.S. 202, 221-22 (1982)).
     350. See Andazola, 23 I. & N. Dec. at 321-22.
1030                         Michigan State Law Review                    [Vol. 2005:979

tance in Mexico to keep the family together.351 The alien hurt her case by
accumulating some assets, including the purchase of her own home.352 It
was the BIA’s view in Andazola that the alien had enough of a financial
cushion to ease the family=s transition to Mexico.353 There was nothing ex-
ceptional or unusual here, and the BIA once again denied relief because it
could find little difference between Monreal and Andazola. 354
      It seemed that, after 1996, an alien would have a very difficult time
meeting the high standard required for cancellation of removal. The BIA
had another chance in In re Recinas355 to show how tough it would be in its
assessment of “exceptional, and extremely unusual hardship.” This time it
was dealing with a divorcée with six children, four of whom were United
States citizens.356 The alien had her own business, modest assets, and de-
pended on her mother to look after the children when she was working.357
The four citizen children had never been outside the United States and had
difficulty communicating in Spanish.358 Was this enough for the alien to
avoid deportation to Mexico?
      The BIA found it significant that the four citizen children were totally
dependent for support on their divorced mother, which meant that she
would have had to find adequate employment and housing.359 Furthermore,
the alien had no relatives in Mexico and her deportation to that country
would have deprived her of any assistance that her mother could offer in
caring for the children.360 All of the alien’s relatives were lawful residents


      351. Board Member Osuna made the point in his dissent:
      [T]he respondent is a single mother who was forced to leave school when she was
      13 years of age, and who consequently has only been able to work in relatively
      low-paying jobs. Such jobs in the United States may provide enough income and
      benefits to support a family of three. In Mexico, it is much harder or even impos-
      sible to do so. It is not a stretch to find that a family placed in that position would
      face “exceptional and extremely unusual hardship,” especially when there is no
      evidence that they could rely on a family structure already in place in Mexico.
Id. at 331-32. (Osuna, Bd. Member, dissenting).
      352. See id. at 324 (explaining that “[t]he money she [did] have would surely help her
in establishing a new life in Mexico”).
      353. The BIA observed that “the respondent and her children would not be penniless
upon her return to Mexico.” Id. It was clear that the alien’s diligence came back to haunt
her. Whatever success she enjoyed as a result of her hard work could be used to show that
her transition to a new life back in Mexico would not be that difficult.
      354. See id. The BIA’s view was that “the hardships the [alien] . . . outlined [were]
simply not substantially different from those that would normally be expected upon removal
to a less developed country.” Id.
      355. 23 I. & N. Dec. 467 (BIA 2002).
      356. See id.
      357. See id. at 470.
      358. See id.
      359. See id. at 471.
      360. See id.
Winter]            INA Admission and Cancellation of Removal                            1031

of the United States361 and, unlike the situation in Monreal362 and Anda-
zola,363 the alien could therefore count on long-term family cohesion to sup-
port the rearing of her children. There was no comparable framework
available to the family unit in Mexico, and considerable hardship awaited
the alien’s children there if the alien was deported.
      The BIA acknowledged that the factors present in Recinas were “more
different in degree than in kind from those present in Monreal and Anda-
zola,”364 and therefore saw no need to depart from the analysis followed in
those cases. Nevertheless, the BIA considered the factors cumulatively and
found them to be unusual and atypical.365 That made the difference in Reci-
nas that guaranteed the alien’s success.

E. Continuous Physical Presence

      The continuous physical presence requirement which appears in sec-
tion 240A(b)(1)(A) was also present in the predecessor statute dealing with
suspension of deportation.366 Before the IIRIRA replaced suspension of
deportation with cancellation of removal in 1996,367 the courts faced signifi-
cant challenges in interpreting the term “continuous physical presence.”
Many courts took comfort in the standard espoused by the Supreme Court in
Fleuti in the context of a meaningful absence, and asked whether the alien’s
departure was innocent, casual, and brief.368 There was a feeling in some


     361. See id. at 472.
     362. In Monreal, the alien’s wife had already returned to Mexico with her infant
child. See In re Monreal, 23 I. & N. Dec. 56, 64 (BIA 2001).
     363. In Andazola, the alien’s siblings were all undocumented aliens living in the
United States. See In re Andazola, 23 I. & N. Dec. 321, 323 (BIA 2002). The BIA agreed
that “[i]n assessing hardship, [it] should not consider the fact that the respondent=s extended
family [was] here illegally, rather than in Mexico, as a factor that weigh[ed] in her favor.”
Id.
     364. Recinas, 23 I. & N. Dec. at 472.
     365. The BIA summarized the factors that led it to its conclusion:
     [T]he heavy financial and familial burden on the adult respondent, the lack of sup-
     port from the children’s father, the United States citizen children’s unfamiliarity
     with the Spanish language, the lawful residence in this country of all the respon-
     dent=s immediate family, and the concomitant lack of family in Mexico combine to
     render the hardship in this case well beyond that which is normally experienced in
     most cases of removal.
Id.
     366. Compare INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1994), with INA §
240A(b)(1)(A), 8 U.S.C. § 1229b(b)(1)(A) (2000).
     367. IIIRIRA of 1996, Pub. L. No. 104-208, Div. C, § 304(a)(3), 110 Stat. 3009,
3009-594.
     368. See, e.g., McColvin v. INS, 648 F.2d 935 (4th Cir. 1981); Heitland v. INS, 551
F.2d 495 (2d Cir. 1977); Wadman v. INS, 329 F.2d 812 (9th Cir. 1964); In re Wong, 12 I. &
N. Dec. 271 (BIA 1967).
1032                         Michigan State Law Review                    [Vol. 2005:979

quarters that it would be harsh to deny relief if an alien’s absence was not
meaningful.369 Such an absence meant that a court could treat the alien as
having a continuous physical presence, and thus the alien would be eligible
for statutory relief once the alien met the other requirements. One could
hardly blame the courts for this liberal construction, because the Fleuti
Court had offered some guidelines in the context of deciding what consti-
tuted an entry, and the courts were keen to give aliens the benefit of the
doubt in determining whether a brief sojourn abroad had interrupted their
continuous physical presence.370 After all, it seemed that a strict and literal
interpretation of the statute would deprive an otherwise worthy alien of re-
lief on the basis of a casual excursion outside the United States.
      Nevertheless, when the section 244 language was challenged in INS v.
Phinpathya,371 the Supreme Court interpreted the “physical presence” re-
quirement literally and would not forgive an alien’s slightest absence from
the United States.372 It did not matter, therefore, whether the absence was
innocent, casual, and brief. This was a tough approach, given the Court’s
disposition in Fleuti on the meaning of the term “entry.”373 Congress re-
acted to this severe judicial construction by enacting an exception for brief,
casual, and innocent departures in section 244(b).374 It was an attempt to
right some judicial wrongs. Congress was sympathetic to the alien’s plight.
If there were meritorious cases for relief from deportation, it seemed harsh
to deny relief if an alien stepped across the border for a fleeting moment.375


     369. See Heitland v. INS, 551 F.2d 495, 501 (2d Cir. 1977); Git Foo Wong v. INS,
358 F.2d 151, 153 (9th Cir. 1966); cf. Fidalgo-Velez v. INS, 697 F.2d 1026, 1029 (11th Cir.
1983).
     370. See LEGOMSKY, supra note 14, at 520; 6 GORDON ET AL., supra note 34, §
74.07[5][c].
     371. 464 U.S. 183 (1984).
     372. See id. at 192.
     373. The Court in Fleuti recognized that a lawful permanent resident should not be
regarded as making an entry into the United States if his departure was not “intended.” See
Rosenberg v. Fleuti, 374 U.S. 449, 463 (1953). It explained the term “intended” as “an intent
to depart in a manner which can be regarded as meaningfully interruptive of the alien’s per-
manent residence.” Id. at 462. This was where the “innocent, casual, and brief” criteria
came into play. Id. at 461.
     374. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 315(b),
100 Stat. 3359, 3439-40 (amending INA § 244(b), 66 Stat. at 217) (repealed 1996).
     375. Soon after the Supreme Court decided INS v. Phinpathya, the House passed an
amendment to section 244, which, although not acted upon by the Senate in that 1984 ses-
sion, eventually led in 1986 to the section 244(b) language that accommodated the “brief,
casual, and innocent” criteria. Some of the congressional concerns can be gleaned from the
following remarks:
     Mr. Chairman, this amendment amends the provisions of the Immigration and Na-
     tionalization Act dealing with suspensions of deportation. To be eligible for sus-
     pension of deportation an individual must prove continuous physical presence in
     the United States for a period of 7 years. This amendment would clarify that the
Winter]            INA Admission and Cancellation of Removal                          1033

      Because Congress did not set precise time limits for an alien’s ab-
sence, the courts had some leeway with the “brief, casual, and innocent”
standard.376 When the IIRIRA introduced the cancellation of removal sec-
tion in 1996, it also included special rules relating to continuous physical
presence. Thereafter, section 240A(d)(2) of the INA recognized that an
alien would break his continuous physical presence if he departed from the
United States for any one period of more than ninety days, or aggregate
periods exceeding 180 days.377 Nothing was said about a single absence of
ninety days or less or aggregate absences of 180 days or less. It was to be
expected that sooner or later the courts would have to deal with the effect of
absences on the continuous physical presence requirement.
      The BIA took its turn in In re Romalez378 at interpreting an alien’s ab-
sences of a few days. The alien thought that he was on safe ground in not
exceeding either the single absence limit of ninety days or the aggregate
limit of 180 days.379 He did not for one moment expect that the statutory
limits in section 240A(d)(2) could be extended to other absences. It was
reasonable to view the statute as an exclusive rule covering all departures.380
The alien in Romalez was in a peculiar situation. His absences resulted
from his departure from the United States under threat of deportation.381
When he returned to the United States and was subsequently served with a
notice to appear for removal proceedings, he applied for cancellation of
removal.382 The alien had left the country for only a few days at a time, and


     requirements allow brief absences during this 7-year period; that is, absences that
     do not meaningfully interrupt the continuous physical presence.
        Now, the reason for that is to express the intent of Congress that the requirement
     not be literally or strictly construed in light of the recent Supreme Court opinion
     that did so. The practical result of the Supreme Court=s opinion is to nullify the
     suspension of deportation provision, a result that the Congress could not have in-
     tended.
130 CONG. REC. 16,348 (1984) (remarks of Rep. Roybal); see also H.R. REP. NO. 99-3810, at
78, reprinted in 1986 U.S.C.C.A.N. 5649, 5682.
     376. See Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995); Rubio-Rubio v. INS,
23 F.3d 273 (10th Cir. 1994); In re Cervantes-Torres, 21 I. & N. Dec. 351 (BIA 1996).
     377. See INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2) (2000).
     378. 23 I. & N. Dec. 423 (BIA 2002).
     379. See id. at 424.
     380. See id. at 440 (Rosenberg, Bd. Member, dissenting).
     381. See id. at 424. The alien entered the United States in 1984. See id. at 423-24. In
1993 and 1994, he left the United States under threat of deportation because he had on each
occasion returned illegally after spending a few days in Mexico. See id. at 424. The alien
returned to the United States, and a notice to appear was served on him in 1997 alleging that
he was removable under section 212(a)(6)(A)(i) for entering in 1992 without being admitted.
See id. The issue confronting the BIA was whether the alien had compiled ten years of con-
tinuous physical presence in order to be eligible for cancellation of removal. See id.
     382. See id. at 424. One of the criteria for cancellation of removal is that the alien
must be “physically present in the United States for a continuous period of not less than 10
1034                        Michigan State Law Review                   [Vol. 2005:979

so it seemed that he was not in any danger of breaking his continuous
physical presence, given the statutory treatment of certain breaks in pres-
ence.383 The BIA had to decide whether the alien’s departure under threat of
removal proceedings constituted a break in physical presence.
      The BIA referred to the caption of section 240A(a)(2), which purports
to cover “certain breaks” in an alien’s physical presence.384 In the BIA’s
view, this was ample evidence that the statute did not therefore cover all
breaks, and that there could be other breaks that interrupted an alien’s physi-
cal presence.385 The section 240A(d)(2) limitations seem rather specific and
they relate only to aliens covered under section 240A(b)(1) and section
240A(b)(2), the cancellation of removal provisions.386 If Congress had other
breaks in mind when it crafted section 240A(d)(2), one might query why it
left those possibilities up in the air when it was dealing with “certain
breaks” in physical presence.387 The BIA did not think it necessary for
Congress to articulate specific exceptions to the rule stipulated in section
240A(d)(2), and rested its decision to treat the alien’s departure as a break
in physical presence on the nature of the threat faced by the alien.388 Had he
been removed, it would have been clear that his physical presence in the
United States would not continue. But the alien in Romalez was not re-



years immediately preceding the date of [the] application.” INA § 240A(b)(1)(A), 8 U.S.C.
§ 1229b(b)(1)(A).
     383. INA § 240A(d)(2) provides as follows:
     An alien shall be considered to have failed to maintain continuous physical pres-
     ence in the United States under subsection (b)(1) and (b)(2) if the alien has de-
     parted from the United States for any period in excess of 90 days or for any periods
     in the aggregate exceeding 180 days.
INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2).
     384. See Romalez, 23 I. & N. Dec. at 425.
     385. See id.
     386. See INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2) (The statute deals only with
physical presence covered under “subsections (b)(1) and (b)(2)” of § 240A.).
     387. As Board Member Pauley indicated in his concurring opinion:
     [N]othing can be read into the title of the IIRIRA break-in-presence provision, i.e.,
     “Treatment of Certain Breaks in Presence.” . . . Use of the adjective “certain” does
     not imply, in context, that other breaks in presence may interrupt continuous
     physical presence, as the majority assert, but only that other breaks in presence,
     e.g., of shorter length, exist.
Romalez, 23 I. & N. Dec. at 436 n.10 (Pauley, Bd. Member, concurring).
     388. The BIA relied on judicial precedent to the effect that, under the previous sus-
pension of deportation statute (§ 244), a “voluntary departure under threat of deportation”
would break an alien’s continuous physical presence. Id. at 428 (citing Hernandez-Luis v.
INS, 869 F.2d 496, 498 (9th Cir. 1989); McColvin v. INS, 648 F.2d 935 (4th Cir. 1981);
Vargas-Gonzalez v. INS, 647 F.2d 457, 458 (5th Cir. 1981); Segura-Viachi v. INS, 538 F.2d
91 (5th Cir. 1976); In re Barragan, 13 I. & N. Dec. 759 (BIA 1971), aff=d, Barragan-Sanchez
v. Rosenberg, 471 F.2d 758 (9th Cir. 1972)).
Winter]            INA Admission and Cancellation of Removal                             1035

moved. He left on his own, albeit under the threat of removal.389 The ques-
tion then became whether such a departure had the same effect as an out-
right removal by the government.
      The BIA treated the alien’s predicament as one not covered by section
240A(d)(2), but looked to section 241(a)(5), which forbids an alien from
applying for any relief under the INA if the alien left the United States un-
der an order of removal and then reentered illegally.390 At first blush, this
seemed to make the alien in Romalez ineligible for any relief. But it must
be emphasized here that the alien did not leave under an order of removal,
and still the BIA treated the alien as if there was such an order in place
when the alien departed.391 Thus, the BIA equated the alien’s voluntary
departure to a removal order. Congress was surely aware of the difference.
Section 241(a)(5) uses specific language requiring an order of removal to be
in existence for the statute to apply.392 But the BIA used section 241(a)(5)
to exclude the alien from any kind of relief, and, in doing so, it paid no at-
tention to the nature of the departure required under that section. There
must be an existing order of removal for that section to apply.393 It is true
that an order of removal is intended to end an alien’s presence in the United
States, but if there is no such order, the alien has never been served with a
notice to appear, and the alien has not run afoul of the limits in section
240A(d)(2) dealing with continuous physical presence, one must find some
other basis for evaluating the alien’s departure from the United States.
      The majority in Romalez looked to previous cases to satisfy itself that
a voluntary departure under threat of deportation constituted a break in con-
tinuous physical presence.394 But those pre-IIRIRA cases were decided un-
der the “brief, casual, and innocent” standard, and the casualness and inno-

     389. This scenario introduces the question whether the alien’s departure was truly
“voluntary.” The argument in support of the BIA’s position in Romalez would be that the so-
called voluntary departures resulted from an agreement between the alien and the govern-
ment that the alien would not return. See Barragan-Sanchez v. Rosenberg, 471 F.2d 758, 760
(9th Cir. 1972).
     390. It is to be noted that section 241(a)(5) applies if an alien “has reentered the
United States illegally after having been removed or having departed voluntarily, under an
order of removal.” INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (2000).
     391. It is questionable whether a departure under threat of removal and a voluntary
departure under an order of removal should be treated the same way. See INA § 240B, 8
U.S.C. § 1229(c) (2000).
     392. One cannot escape the language “under an order of removal.” See INA §
241(a)(5), 8 U.S.C. § 1231(a)(5).
     393. See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). As Board Member Rosenberg
pointed out so forcefully, “[s]ection 241(a)(5) of the Act is not applicable to voluntary depar-
tures made prior to the institution of formal removal proceedings, even if such departures are
made by a respondent who would otherwise face a removal proceeding.” In re Romalez, 23
I. & N. Dec. 423, 442 (BIA 2002) (Rosenberg, Bd. Member, dissenting); see also id. at 433
(Pauley, Bd. Member, concurring).
     394. See Romalez, 23 I. & N. Dec. at 428.
1036                         Michigan State Law Review                    [Vol. 2005:979

cence of the alien’s departure are no longer relevant considerations under
section 240A(d)(2).395 If Congress wanted to continue the previous test
identified in section 244(b)(2), it could have done so even under the new
cancellation of removal provision. Despite the new scheme introduced by
section 240A(d)(2), the Fifth, Eighth, and Ninth Circuits have agreed with
the BIA’s approach.396 They have been reluctant to accept an alien’s volun-
tary departure under the old scheme as indicative of a lack of casualness and
innocence only, thus contributing to the view that the substitution of a new
test under cancellation of removal required the same result. The Ninth Cir-
cuit said it best in Vasquez-Lopez v. Ashcroft,397 when it denied an alien’s
continuous physical presence because the alien’s absence was not “inadver-
tent, casual, or otherwise lacking in significance.”398 One would not have
expected to see those terms if the court was evaluating an alien’s request for
cancellation of removal. They were reminiscent of the old standard.399
      When the court in Hernandez-Luis v. INS400 dealt with an alien’s vol-
untary, pre-hearing departure under the predecessor statute providing for
suspension of deportation, it concluded confidently that such a departure
under threat of deportation was not a “brief, casual, and innocent ab-
sence.”401 The post-IIRIRA cases have not forgotten the language of old,
despite admitting that such language has disappeared from the IIRIRA un-
der a new formulation that sets a prescribed limitation on the time that can
save an alien’s continuous physical presence. They cannot have it both
ways. If section 240A has changed the criteria, then it seems that the courts
can no longer seek a solution under the old guidelines that arose from the
Fleuti scenario.
      It is said that an alien’s voluntary departure under these circumstances
indicates an implied agreement not to return to the United States.402 This
formulation suggests that such a departure and an alien’s removal should
have the same effect on an alien’s status. The INA itself makes some occa-
sional distinctions between aliens who are removed and aliens who depart

     395. The BIA agreed that “[t]he statute has since changed, and the ‘brief, casual, and
innocent’ test of prior law no longer applies in ordinary cancellation of removal cases.” Id.
at 429.
     396. See Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Mireles-Valdez v.
Ashcroft, 349 F.3d 213 (5th Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir.
2003).
     397. 343 F.3d 961 (9th Cir. 2003).
     398. Id. at 974.
     399. See, e.g., Tapia v. Ashcroft, 351 F.3d 795 (7th Cir. 2003); Hernandez-Luis v.
INS, 869 F.2d 496 (9th Cir. 1989); Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995).
     400. 869 F.2d 496 (9th Cir. 1989).
     401. See id. at 498.
     402. See Mireles-Valdez v. Ashcroft, 349 F.3d 213, 218 (5th Cir. 2003); Barragan-
Sanchez v. Rosenberg, 471 F.2d 758, 760 (9th Cir. 1972); In re Romalez, 23 I. & N. Dec.
423, 429 (BIA 2002).
Winter]            INA Admission and Cancellation of Removal                            1037

voluntarily.403 Therefore, it is not reasonable to suggest that an alien who
departs voluntarily has made any implied agreement not to return. In Bar-
ragan-Sanchez v. Rosenberg,404 the alien was allowed to leave instead of
being deported, but the authorities allowed him to keep his border-crossing
card.405 One could hardly find a clear intent by the alien to leave the United
States forever, and the INS surely did not make its point that it was leading
the alien on a one-way exit to Mexico. The alien could have returned law-
fully for any period allowed by the authorities.
      This is not the only place where the IIRIRA has changed the old stan-
dard. The BIA explained in In re Collado that the “brief, casual, and inno-
cent” standard that the Supreme Court used in Fleuti to determine whether
an alien had made an entry did not survive the enactment of the amend-
ments.406 Therefore, a lawful permanent resident is not regarded as seeking
admission unless he has been away for more than 180 days.407 If the BIA
forsook the element of brevity in Collado for the firm time period in the
new statute, it is difficult to understand its unwillingness to make a similar
concession in the context of continuous physical presence.
      The courts have found it difficult to accept the proposition that Con-
gress intended to facilitate an alien’s maintenance of physical presence,
particularly when the regulations408 promulgated for a special group of
aliens under the Nicaraguan Adjustment and Central American Relief Act
(NACARA)409 do take account of the casualness and innocence of the
alien’s absence. 410 It looks as if the courts are grasping at straws in trying to
link the special NACARA regulations to aliens who are subject to normal
cancellation of removal under section 240A. They are keen to adopt the
NACARA regulations for application to non-NACARA events just because
there seems to be some relation between the two. The Attorney General
issued regulations for cancellation under the NACARA,411 but one looks in

     403. It is interesting that section 241(a)(5) denies relief under the INA to any alien
who reenters the United States “after having been removed or having departed voluntarily,
under an order of removal.” INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (2000). Congress did
not go all the way to deny relief to an alien who departed voluntarily under threat of removal.
This was an ideal place for it to make the point that departing voluntarily under a removal
order would have the same consequences as departing voluntarily under threat of removal.
See id.
     404. 471 F.2d 758 (9th Cir. 1972).
     405. See id. at 759.
     406. See In re Collado, 21 I. & N. Dec. 1061, 1066 (BIA 1998).
     407. See INA § 101(a)(13)(C)(ii), 8 U.S.C. § 1101(a)(13)(C)(ii) (2000).
     408. See 8 C.F.R. § 240.64(b)(2), (b)(3) (2005).
     409. Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L.
No. 105-100, 111 Stat. 2193 (1997), as amended by Pub. L. No. 105-139, 111 Stat. 2644
(1997).
     410. See id.
     411. See 8 C.F.R. § 240.64(b) (2005)
1038                         Michigan State Law Review                    [Vol. 2005:979

vain for any regulations covering regular cancellation of removal. It is true
that the NACARA regulations terminate an alien’s physical presence when
the alien departs voluntarily under the threat of deportation.412 The
NACARA was introduced to deal with a specific situation affecting a cer-
tain group of aliens and that group is subject to special limitations.413 It is
unfortunate that the courts and the BIA seem distressed by the possibility of
reaching a conclusion in a section 240A cancellation that does not follow
the NACARA regulation. An explicit regulation that implements the
NACARA scheme should not be imported into a section 240A cancellation
simply because the courts and the BIA want to fill a vacuum. The special
cancellation provision under the NACARA requires an alien who is subject
to that scheme to show that any absence of less than ninety days was casual
and innocent.414 The IIRIRA dropped the elements of casualness and inno-
cence that characterized the section 244(b)(2) language following Phinpa-
thya.415 So, even on this small point, the NACARA regulation forged its
own remedy. There was no consistency here. The departure under threat of
deportation produced a break in continuous presence under the pre-IIRIRA
scheme because the courts analyzed it under the themes of brevity, casual-
ness, and innocence.416 If the IIRIRA removed these components as a part
of the cancellation remedy, but the Attorney General resurrected them as a
part of the NACARA, it is no surprise that there would be different results
under the two scenarios.
      In Vasquez-Lopez v. Ashcroft,417 the Ninth Circuit buttressed its case
by relying on the principle of administrative deference advocated in Chev-
ron U.S.A., Inc. v. NRDC.418 The Ninth Circuit obviously believed that the
statute under consideration was subject to more than one interpretation and
that therefore the court was justified in looking to the agency responsible for
the statute’s administration. It is arguable, however, that there is no ambi-
guity in section 240A(d)(2), and therefore it is not necessary to invoke that
deference to Chevron principles by following Romalez. If Congress has

     412. See id. § 240.64(b)(3).
     413. As the dissenting Board Member Rosenberg indicated, “[t]here is no regulation
comparable to 8 C.F.R. § 240.64(b) that implements section 240(d)(2) of the Act and applies
to an applicant for regular cancellation of removal.” In re Romalez, 23 I. & N. Dec. 423, 444
(BIA 2002).
     414. The regulation stipulates that “[t]he applicant must establish that any period of
absence less than 90 days was casual and innocent and did not meaningfully interrupt the
period of continuous physical presence in the United States.” 8 C.F.R. § 240.64(b)(2)
(2005).
     415. See Pub. L. No. 104-208, § 304(a)(3), 110 Stat. 3009-576 (1996) (codified at 8
U.S.C. § 1229b(d)(2) (2000)).
     416. See Tapia v. Ashcroft, 351 F.3d 795 (7th Cir. 2003); Castrejon-Garcia v. INS, 60
F.3d 1359 (9th Cir. 1995); Hernandez-Luis v. INS, 869 F.2d 496 (9th Cir. 1989).
     417. 343 F.3d 961, 969-70 (9th Cir. 2003).
     418. 467 U.S. 837 (1984); see Vasquez-Lopez, 343 F.3d at 969-70.
Winter]            INA Admission and Cancellation of Removal                            1039

dealt with the matter at issue, there is really no room for the agency to insist
on its own view of things. The agency’s responsibility lies in promulgating
regulations to carry out the will of Congress, and if those regulations are
inconsistent with the statute, they do not deserve any deference. Even if,
perchance, one can find some ambiguity in section 240A(d)(2), the agency’s
interpretation should not prevail when it adds something to the statute that is
not there.419
      What is the ambiguity in section 240A(d)(2)? If one believes that the
section does not dilute the strict requirement for continuous physical pres-
ence, then one must view the section as having no explicit limitation on the
kind of absence, however brief, that affects such continuity. Since the Su-
preme Court forbade any implied limitation in Phinpathya,420 it is difficult
therefore to see how section 240A(d)(2) does its work if there can be no
explicit or implicit limitation flowing from the section. If Congress did not
intend to provide such a limitation for brief departures, it is not clear why it
wanted to specify that absences of a certain duration would interrupt an
alien’s continuous physical presence. The court in Vasquez-Lopez wanted
to accommodate an exception in section 240A(d)(2), even in the face of the
mandatory nature of the statutory language.421 It sought some wiggle room
through section 240A(d)(1) dealing with the termination of continuous
physical presence.422 This so-called stop-time rule terminates such presence
when an alien is served with a notice to appear or when an alien commits
certain offenses.423 But that rule applies only to aliens who are in removal
proceedings and not to those who apply for voluntary departure prior to the
institution of such proceedings.424 If the authorities decide not to issue a
notice to appear, the alien does not fall within section 240A(d)(1).425 It is


     419. Board Member Pauley said it best in his concurring opinion in Romalez. He
observed that, “as it is undeniable that former section 244(b) was not carried forward by the
IIRIRA but was allowed to lapse, it seems an unavoidable conclusion that that statute is
inapplicable . . . and should not have been effectively restored, as to its ‘casual’ and ‘inno-
cent’ branches, by the regulations.” In re Romalez, 23 I. & N. Dec. 423, 434 (BIA 2002)
(Pauley, Bd. Member, concurring); see also Vasquez-Lopez, 343 F.3d at 965 (Berzon, J.,
dissenting).
     420. In interpreting the seven-year physical presence requirement in section
244(a)(1), the Supreme Court explained: “Congress meant what it said: otherwise deportable
aliens must show that they have been physically present in the United States for a continuous
period of seven years before they are eligible for suspension of deportation.” INS v. Phinpa-
thya, 464 U.S. 183, 196 (1984).
     421. Section 240A(d)(2) recognizes that, because of certain absences, an alien “shall
be considered to have failed to maintain continuous physical presence.” INA § 240A(d)(2),
8 U.S.C. § 1229b(d)(2) (2000).
     422. See Vasquez-Lopez, 343 F.3d at 974 (quoting 8 U.S.C. § 1229b(d)(1)).
     423. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
     424. See INA § 240B(a)(1), 8 U.S.C. § 1229b(a)(1).
     425. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
1040                         Michigan State Law Review                    [Vol. 2005:979

not clear why the same section would cover someone who has not been
served. It is possible, indeed, that Congress intended to leave room for an
alien who accepts voluntary departure and then is able to resume lawful
residence in the United States. If the alien’s agreement to depart voluntarily
carries the same consequence as an alien under removal proceedings, the
statute could easily have covered both possibilities.426 It is not enough to
force that coverage for an alien’s voluntary departure just because such a
departure results from a substitute arrangement between the alien and the
Attorney General.
       The courts and the BIA have left no doubt that an alien’s voluntary
departure under threat of removal breaks an alien’s continuous physical
presence in the United States. What happens, though, when the government
does not threaten removal, but merely sends the alien back across the bor-
der? In Morales-Morales v. Ashcroft,427 the Seventh Circuit drew a distinc-
tion between the latter situation and a voluntary departure under threat of
deportation. The court accepted the Romalez formulation of a voluntary
departure as akin to a plea bargain in which “[t]here is no legitimate expec-
tation by either of the parties that an alien could illegally reenter and resume
a period of continuous physical presence.”428 On the other hand, the court
treated the alien’s mere return across the border as devoid of any agreement
between the parties that the alien had departed voluntarily to avoid deporta-
tion or removal.429 It was advantageous to the alien to be turned back at the
border without much fanfare, because such an event did not have the mak-
ings of a plea bargain that would signal an understanding between the par-
ties that the alien would not reenter illegally.430
       The court in Morales-Morales did not see any break in continuous
physical presence, simply because the alien did not depart under threat of


      426. See Vasquez-Lopez, 343 F.3d at 967 (Berzon, J., dissenting). Section 240A(d)(1)
does not cover aliens who take voluntary departure instead of being served with a notice to
appear. See id. It would have been quite easy for Congress to insert appropriate language to
cover that situation.
      427. 384 F.3d 418 (7th Cir. 2004).
      428. Id. at 426 (quoting In re Romalez, 23 I. & N. Dec. 423, 429 (BIA 2002)).
      429. The court in Morales-Morales made the point: “We simply cannot equate being
turned back at the border with a formal voluntary departure or departure under an order of
removal or deportation. While the latter necessarily breaks continuous physical presence, the
former does not.” Id. at 428.
      430. The so-called plea bargain identified in Romalez, but missing in Morales-
Morales, led the court in Morales-Morales to conclude that it could not say with confidence
that there was “no legitimate expectation by either of the parties that [Morales] could ille-
gally reenter and resume a period of continuous physical presence.” Id. at 428 (quoting Ro-
malez, 23 I. & N. Dec. at 429). So it was the alien’s promise to depart voluntarily that made
the difference. But the promise is in exchange for the government’s passing up the removal
proceedings.
Winter]            INA Admission and Cancellation of Removal                         1041

removal.431 But he did depart whether or not there was such a threat, and the
alien no doubt would have entertained serious thoughts of trying again to
make it across the border. The court looked for a way to settle the matter
without disturbing Romalez, and the absence of a threat to the alien allowed
the court to draw the distinction between the two cases.432 Nevertheless, the
alien left when he had no right to be here, and one therefore wonders
whether he had a different view of his position when escorted to an informal
exit at the border than he would have had if a threat of deportation had pre-
ceded his exit. Since Romalez, the BIA433 and the Eighth Circuit434 have
joined the Seventh Circuit in holding that an alien who is merely turned
back at the border does not break his continuous physical presence. There
must be something more akin to the Romalez formulation that approximates
an enforced departure.435

IV. TERMINATION OF CONTINUOUS RESIDENCE OR CONTINUOUS PHYSICAL
                           PRESENCE

      In In re Perez,436 the alien was rendered deportable under section
237(a)(2)(B)(1)437 because of his conviction of an offense covered by sec-
tion 212(a)(2)(A)(i)(II).438 The alien argued that his continuous residence
terminated not on the date that he committed the offense, but rather on the
date of conviction.439 The BIA viewed the “renders” clause as a restrictive
one that defined the type of offense that brings the alien’s continuous resi-
dence to an end.440 That limiting clause merely modifies the term “offense,”

      431. See id. at 428.
      432. The court explained that “[t]here [was] a significant difference between
Morales’s account of the Border Patrol simply turning her back at the border and voluntary
departure under threat of removal proceedings.” Id. at 427.
      433. See In re Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005). The alien had entered
illegally in 1986 and had returned to Mexico on January 3, 1993. See id. at 800. When she
tried to reenter two weeks later, the immigration authorities stopped her and sent her back
across the border. See id. She then reentered illegally two days later. See id. The BIA held
that her continuous physical presence continued to accrue for purposes of section
240A(b)(1)(A) following her departure unless she was “formally excluded or made subject to
an order of expedited removal, was offered and accepted the opportunity to withdraw [an]
application for admission, or was subjected to any other formal, documented process pursu-
ant to which [she] was determined to be inadmissible to the United States.” Id. at 805-06.
      434. See Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005).
      435. See id. at 909; Avilez-Nava, 23 I. & N. Dec. at 805-06.
      436. 22 I. & N. Dec. 689 (BIA 1999).
      437. An alien convicted of a controlled substance violation is deportable. INA §
237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (2000).
      438. An alien is inadmissible if he is convicted of a controlled substance violation.
INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1227(a)(2)(A)(i)(II).
      439. See Perez, 22 I. & N. Dec. at 689.
      440. See id. at 693.
1042                         Michigan State Law Review                     [Vol. 2005:979

but it does not change the time “when ‘the alien has committed (the) of-
fense.’”441
       Even if one perceives some ambiguity in the phrase “has committed”
in section 240A(d)(1), such ambiguity disappears readily when one views
the phrase in the context of section 240A. Congress used both “committed”
and “convicted” in section 240A,442 and so there is a presumption that the
terms were not intended to be synonymous. This is not the only place
where the terms appear. An alien is deportable under section 237 if he is
convicted of a crime involving moral turpitude that is committed within a
certain period after admission.443 There is no doubt that in this deportation
context the BIA looks to see whether the alien committed his crimes within
five years following his admission.444 Conviction must, of course, follow
commission of the crime, but there is no pretense that the five-year period
must be counted back from the time of conviction.
       It is noteworthy that former section 244(a) dealing with suspension of
deportation contained similar language that required an alien to be physi-
cally present for at least ten years following the “commission of an act, or
the assumption of a status, constituting a ground for deportation.”445 When
confronted with this language in In re P,446 the BIA took the position that the
ten-year period of physical presence began to run from the time of the
alien’s conviction and sentence.447 The BIA’s position seemed misleading
because it suggested that the ten-year period should follow “‘the commis-
sion of the act’ (including conviction and sentence).”448 No doubt the BIA
was defining here the event that triggered the beginning of the period that
would quality the alien for relief. It is questionable whether the BIA was
justified in translating the commission of the act to include conviction and
sentence when it should have utilized the “assumption of status” language to
support its position.449 In In re P, the result would have been the same, but

     441. Id.
     442. Compare INA § 240A(a)3, (b)(1)(C), 8 U.S.C. § 1229b(a)(3), (b)(1)(C) (2000),
with INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2000).
     443. See INA § 237(a)(2)(A)(1), 8 U.S.C. § 1227(a)(2)(A)(1).
     444. The crime must be committed within ten years in the case of an alien granted
lawful permanent residence under § 245(j) dealing with S visa nonimmigrants. See INA §
237(a)(2)(A)(1), 8 U.S.C. § 1227(a)(2)(A)(1).
     445. INA § 244(a)(2), 8 U.S.C. § 1254(a)(2) (1994).
     446. 6 I. & N. Dec. 788 (BIA 1955).
     447. See id. at 790.
     448. Id.
     449. It is sensible to draw a distinction between “commission of an act” and “assump-
tion of a status” in the context of section 244. There were some acts that by themselves
constituted grounds for deportation without any conviction. See INA § 241(a)(1)(A)-(G),
(a)(2)(B)(ii), (a)(3)(A), 8 U.S.C. § 1251(a)(1)(A)-(G), (a)(2)(B)(ii), (a)(3)(A) (1994). It is
reasonable to treat the alien’s continuous physical presence as beginning on the commission
of such acts without waiting for any conviction, since none is required under the statute. On
Winter]             INA Admission and Cancellation of Removal                             1043

the BIA would not have given the impression that it was interpreting the
“commission” of an act to include “conviction” for purposes of the stat-
ute.450 The mere commission of some acts would have rendered an alien
deportable under former section 241 and thus the ten-year period of con-
tinuous physical presence would have commenced with the commission of
the offense.451 It is unfortunate, therefore, that the BIA rested its decision on
the “commission” prong rather than the “assumption of status” prong, be-
cause the alien had to be convicted of manslaughter before he could be
found deportable under section 241. It was then that he assumed a status
that constituted a ground for deportation. This interpretation of “assumption
of status” still allows the phrase “commission of the act” to do its work,
because the ten-year period can still begin to run when the alien commits an
act that subjects him to deportation without any subsequent conviction.
       The BIA’s impression in In re P led to the BIA’s confident restate-
ment in In re Lozada452 of the proposition that “[t]he 10-year period is meas-
ured from the date of conviction, not the date the offense was committed,
since it is the conviction, not the commission of the offense, that renders the
alien deportable.”453 Here again the BIA did not heed the “assumption of
status” language and thus it was reasonable to interpret the BIA’s decision
in Lozada as including a conviction within the “commission of an act” ter-
minology. The BIA’s confidence in Lozada encouraged the dissent in Perez
to make the point that, if it was the conviction in Lozada that rendered the
alien deportable, then it was quite reasonable to read the conviction in Perez
the same way because section 240A(d)(1) ended the alien’s continuous resi-
dence when the alien committed the offense that rendered him deportable.454
The dissent in Perez was attracted by the similarity in language. In In re
Lozada, the BIA concluded that it was the conviction that rendered alien


the other hand, when a conviction is necessary for an alien to be deportable, the commission
of the act, followed by conviction, puts the alien in a status that starts the period running for
an alien’s continuous physical presence.
     450. The language in In re P left the impression that the BIA was explaining the
phrase “commission of the act.” It said that “the alien cannot show ten years of ‘physical
presence’ . . . following ‘the commission of the act’ (including conviction and sentence).” In
re P, 6 I. & N. Dec. at 790.
     451. See INA § 241(a)(1)(A)-(G), (a)(2)(B)(ii), (a)(3)(A), 8 U.S.C. § 1251(a)(1)(A)-
(G), (a)(2)(B)(ii), (a)(3)(A).
     452. 19 I. & N. Dec. 637 (BIA 1988).
     453. Id. at 640.
     454. It is to be noted that in Lozada the BIA held that it was the conviction that ren-
dered the alien deportable. Id. Section 244 did not use the “rendered” language. It dealt
with “an act . . . constituting a ground for deportation.” INA § 244(a)(2), 8 U.S.C. §
1254(a)(2) (1982). The Perez dissent was heartened by the fact that the drafters used in
section 240A(d)(1) the same language “renders the alien deportable” that the BIA had used
in Lozada. In re Perez, 22 I. & N. Dec. 689, 705 (BIA 1999) (Guendelsberger, Bd. Member,
dissenting).
1044                          Michigan State Law Review                     [Vol. 2005:979

deportable,455 and in section 240A(d) the period of continuous residence or
continuous physical presence terminates when the alien commits an offense
that renders the alien inadmissible or removable.456 This fascination with
the “renders” language led the dissent in Perez to attribute to the drafters of
section 240A(d) an intent to remain consistent with the BIA’s explanation
of the termination provision in prior section 244(a).
      One cannot fault the dissent for its optimism. There was, in In re P
and Lozada, a misunderstanding of the section 244(a) formula. The BIA
should not have held on to the “commission of an act” phrase as the focal
point on the alien’s road to eligibility unless it was prepared to find some
meaning for the “assumption of a status” phrase. The Perez dissent must
have seen some hope in the Lozada approach, for if it was reasonable to
require a conviction to follow the commission of an act before the ten-year
period began under section 244(a), then there was nothing amiss in requir-
ing the commission of an offense to lead to a conviction before cutting off
the period of continuous residence in section 240A(d)(1).457 When all is
said and done, the language of section 244(a) and that of section
240A(d)(1), though similar, are not the same, and the dissent’s approach,
following the BIA’s lead in In re P, led to the redundancy of the “has com-
mitted” language in section 240A(d)(1). The statutory period stops when
the alien commits the offense, not when the offense renders the alien inad-
missible or removable. If it were otherwise, there would be no need for the
“committed” language, for all attention would then be focused on the time
when the alien becomes inadmissible or removable. As the BIA pointed out
in Perez, the “renders” clause “implicitly requires that the steps necessary to
‘render’ an alien inadmissible or removable shall have occurred before the
offense qualifies for section 240A(d)(1) purposes.”458

A. The Reference to Section 212(a)

      Section 240A(d)(1) stipulates that the offense which the alien commits
to render him inadmissible under section 212(a) or removable under sec-
tions 237(a)(2) or 237(a)(4) must itself be covered in section 212(a)(2) for
the alien’s continuous residence or continuous physical presence to termi-
nate.459 In In re Campos-Torres,460 the alien committed a firearms offense

     455. See Lozada, 19 I. & N. Dec. at 640.
     456. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2000).
     457. Referring to the language “renders the alien deportable,” the dissent in Perez
noted that “[t]his choice of language strongly suggests that the drafters’ intentions as to the
workings of the termination provision in section 240A(d) were consistent with the Board’s
explanation in Lozada of the operation of the termination provision in section 244(a).”
Perez, 22 I. & N. Dec. at 705 (Guendelsberger, Bd. Member, dissenting).
     458. Id. at 693.
     459. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
Winter]          INA Admission and Cancellation of Removal                   1045

that rendered him deportable under section 237(a)(2)(C), but there is no
mention of such an offense in section 212(a).461 The BIA applied the plain
meaning of the statute to protect the alien on this occasion, inasmuch as
section 212(a)(2) does not cover firearms offenses.462 This seemed reason-
able enough. But then one looks at section 237(a)(4) and sees that none of
the offenses there is covered in section 212(a)(2), although section
240A(d)(1) recognizes that there can be no more physical presence or con-
tinuous residence if the alien commits an offense referred to in section
212(a)(2) that renders him removable under section 237(a)(4).463
       The BIA explained in Campos-Torres that no damage was done by in-
cluding a reference to section 237(a)(4), even though no offenses in that
section found their way into section 212(a).464 An alien who is deportable
under section 237(a)(4) is automatically ineligible under section 240A(c)(4)
for cancellation of removal,465 and therefore it was not necessary to grapple
with any issue relating to the termination of the alien’s continuous physical
presence or continuous residence.466 Despite this, the obvious question re-
mains whether the drafters simply made a mistake in including the reference
to section 237(a)(4). The legislative history provides little help in the mat-
ter. A congressional report explained that section 240A(d) terminates an
alien’s continuous residence or physical presence “when the alien is con-
victed of an offense that renders the alien deportable from the United
States.”467 There is no reference in that report to inadmissibility under sec-
tion 212(a), or to the language “referred to in § 212(a)(2).”468 The commit-
tee’s explanatory statement hardly did anything to settle the argument about
the meaning of section 240A(d)(1). If the legislative history was supposed
to shed light on the meaning of the statute by revealing the drafters’ intent,
it failed miserably on this occasion because it says nothing about inadmissi-
bility. The dissent in Campos-Torres latched on to the absence of such lan-
guage and felt justified therefore in ignoring the reference to section
212(a)(2) that eventually became a part of section 240A(d)(1).469 The BIA
majority did not see how the legislative history overcame the strong pre-




    460. 22 I. & N. Dec. 1289 (BIA 2000).
    461. See INA § 212(a), 8 U.S.C. § 1182(a) (2000).
    462. See Campos-Torres, 22 I. & N. Dec. at 1293.
    463. Compare INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), with INA § 237(a)(4), 8
U.S.C. § 1227(a)(4) (2000).
    464. See Campos-Torres, 22 I. & N. Dec. at 1295.
    465. See INA § 240A(c)(4), 8 U.S.C. § 1229b(c)(4) (2000).
    466. See Campos-Torres, 22 I. & N. Dec. at 1295.
    467. H.R. REP. NO. 104-828, at 214 (1996) (Conf. Rep.).
    468. Id.
    469. See Campos-Torres, 22 I. & N. Dec. at 1299 (Cole, Bd. Member, dissenting).
1046                        Michigan State Law Review                   [Vol. 2005:979

sumption about the plain meaning of the “referred” language.470 As the ma-
jority pointed out, the drafters could easily have left out the troublesome
phrase, so that any offense relating to inadmissibility under section 212(a)
or removability under section 237(a)(2) or 237(a)(4) would have put an end
to an alien’s continuous residence or continuous physical presence.471 Un-
der either the majority’s or the dissent’s position, some part of the statute
had to be ignored. For the majority, it was acceptable to ignore the refer-
ence to section 237(a)(4), because there was no counterpart in section
212(a)(2).472 The dissent saw fit, on the other hand, to ignore the reference
to section 212(a)(2) because it wanted to stop the continuous residence or
continuous physical presence on the basis of inadmissibility or deportabil-
ity, and not merely on the basis of offenses found in section 212(a)(2).473
      When all is said and done, it seems that the drafters made a mistake in
drafting this section. The “referred to” language cannot coexist with section
237(a)(4). There is no doubt that ignoring the reference to section 212(a)(2)
materially changes the meaning of section 240A(d)(1).474 On the other
hand, ignoring “section 237(a)(4)” does no real damage, particularly if one
recognizes that the drafters may have forgotten to include section 212(a)(3)
in the “referred to” phrase.475 If the drafters had included section 212(a)(3)
in that phrase, section 240A(d)(1) would make sense because the accrual of
time would stop when the alien commits an offense referred to in section
212(a)(2) or section 212(a)(3) that renders the alien inadmissible under sec-
tion 212(a)(2) or section 212(a)(3), or removable under section 237(a)(2) or
section 237(a)(4). There would then be a correlation between section
212(a)(3) and section 237(a)(4), which both deal with security grounds.476
Even this attempt to create a correlation between the two sections still can-
not explain the need to have any reference at all to section 237(a)(4) in sec-
tion 240A(d)(1). Any alien who is deportable under section 237(a)(4) is
automatically ineligible for cancellation of removal under section
240A(c)(4),477 so that any discussion about the termination of continuous

     470. See id. at 1293 (quoting Richards v. United States, 369 U.S. 1, 10 (1962) (Courts
“are bound to operate within the framework of the words chosen by Congress and not to
question the wisdom of the latter in the process of construction.”)); see also 2A SINGER,
supra note 191, at § 46:01.
     471. See Campos-Torres, 22 I. & N. Dec. at 1293.
     472. See id. at 1295.
     473. See id. at 1300 (Cole, Bd. Member, dissenting).
     474. See id. at 1295.
     475. Section 212(a)(3) deals with inadmissibility on security and related grounds.
See INA § 212(a)(3), 8 U.S.C. § 1182(a)(3) (2000 & Supp. II 2002).
     476. Compare INA § 212(a)(3), 8 U.S.C. § 1182(a)(3) (security and related grounds),
with INA § 237(a)(4), 8 U.S.C. § 1227(a)(4) (2000) (security and related grounds).
     477. Section 240A(c)(4) provides that “[a]n alien who is inadmissible under section
212(a)(3) . . . or deportable under section 237(a)(4)” is deportable. INA § 240A(c)(4), 8
U.S.C. § 1229b(c)(4) (2000).
Winter]            INA Admission and Cancellation of Removal                          1047

residence or continuous physical presence becomes moot. If the alien is
ineligible for cancellation, it is not necessary to inquire into the continuity
of his residence or of his presence.
       The alien’s ineligibility for section 240A relief leads to the conclusion
that the reference to section 237(a)(4) is a genuine drafting error.478 It does
no good either to ignore the reference to section 212(a)(2) and make the
stop-time rule applicable when an alien commits an offense that renders him
inadmissible under section 212(a)(2) or deportable under section 237(a)(2)
or section 237(a)(4). There is no room for application of the rule if the alien
is already ineligible.
       Cancellation of removal for permanent residents was intended to re-
place former section 212(c), which granted certain aliens relief from exclu-
sion or deportation.479 Under the old system, an alien could continue to ac-
crue continuous residence while being sanctioned for the act that subjected
him to deportation proceedings in the first place.480 Congress was anxious
to stop this lenient approach, and this was one of the reasons for the enact-
ment of section 240A(d)(1),481 which stops the accrual of time when an alien
commits an offense that renders him inadmissible or deportable. One looks
in vain for the drafters’ rationale for making the deportable offenses corre-
late to a section 212(a)(2) ground. Although the legislative history throws
no light on the matter, there is no reason to suppose that the drafters did not
know what they were doing when they restricted section 240A(d)(1) to the
commission of an offense referred to in section 212(a)(2).
       Prior to its amendment in 1996, section 212(c) applied to aliens in
both exclusion and deportation proceedings and barred relief for aliens who
were convicted of certain crimes.482 The 1996 amendment did not make any
reference to excludability or inadmissibility,483 and the BIA therefore held in


      478. The BIA thought that “the inclusion of this ground of deportability within sec-
tion 240A(d)(1) is merely an additional reference.” Campos-Torres, 22 I. & N. Dec. at 1295.
But that still does not answer the question about the purpose served by the reference to sec-
tion 237(a)(4).
      479. See H.R. REP. NO. 104-469, pt. 1, at 232 (1996).
      480. See S. REP. NO. 104-48, at 28 (1995).
      481. See H.R. REP. NO. 104-469, pt. 1, at 122 (1996). The House Committee on the
Judiciary reported that aliens abused the system under sections 244 and 212(c) because some
federal courts permitted aliens “to continue to accrue time toward the seven year threshold
even after they [had] been placed in deportation proceedings.” Id.
      482. Although the language of former section 212(c) covered only “[a]liens lawfully
admitted for permanent residence who temporarily proceeded abroad . . . and who [were]
returning to a lawful unrelinquished domicile of seven consecutive years,” INA § 212(c), 8
U.S.C. §1182(c), the court in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), held that the sec-
tion should apply to an alien who had never left the United States.
      483. The Antiterrorism and Effective Death Penalty Act of 1996 amended section
212(c) by making it inapplicable to an alien who was deportable because he had committed a
1048                         Michigan State Law Review                     [Vol. 2005:979

In re Fuentes-Campos484 that inadmissible aliens would still benefit from the
amended section 212(c). The amended section denied relief only to an alien
who was in deportation proceedings for committing certain crimes.485 The
BIA resisted the urging of the INS to interpret the term “deportable” to in-
clude “excludable,” although there was never any confusion about the
meaning of the two terms.486 The BIA must be congratulated for not import-
ing into the statute a term that was left out when the amendment took hold.
The BIA must also recognize the significance of the “referred” language in
section 240A(d)(1), while acknowledging that the reference to section
237(a)(4) serves no purpose. It is not sufficient to regard it as “merely an
additional reference.”487 An alien who finds himself covered by section
237(a)(4) simply is not eligible for cancellation of removal, and there is no
need therefore to discuss his inability to accrue additional time toward con-
tinuous residence or continuous physical presence.

B. Commission and Conviction

      The termination language of section 240A(d)(1) can come into play in
another context. If an alien commits an offense before he accrues his seven
years of continuous residence and then commits another offense, a question
may be raised about his satisfaction of the seven-year requirement. That
was the situation in In re Deanda-Romo,488 where the alien committed a
crime involving moral turpitude before, and another such crime after, the
expiration of the seven-year period.489 The question that had to be settled
was whether section 240A(d)(1) prevented the alien from qualifying for
relief because he had committed two crimes involving moral turpitude, one
of which was a petty offense committed within the seven-year period of




specified criminal offense. See Antiterrorism and Effective Death Penalty Act, Pub. L. No.
104-132, § 440(d), 110 Stat. 1214, 1277 (1996).
      484. 21 I. & N. Dec. 905, 913 (BIA 1997).
      485. See id. at 907. The BIA explained as follows: “We find that the plain language
of the amendment to section 212(c), as construed within the context of the well-established
statutory distinctions between deportation and exclusion, provides that the bar to eligibility
for relief applies only to specified criminal aliens who are in deportation proceedings.” Id.
      486. See id. at 908 (citing In re Ching, 12 I. & N. Dec. 710, 712 (BIA 1968); In re T,
5 I. & N. Dec. 459 (BIA 1953); In re Melo, 21 I. & N. 883 (BIA 1997)).
      487. It would be reasonable to designate the coverage of section 237(a)(4) in section
240A(d)(1) as “an additional reference” if that reference served some purpose and was tied
into some other section. An alien’s ineligibility for relief under section 240A(a)(b)(1) be-
cause of his deportability under section 237(a)(4) makes it harder to justify the inclusion of
the section 237(a)(4) reference.
      488. 23 I. & N. Dec. 597 (BIA 2003).
      489. See id. at 597-98.
Winter]             INA Admission and Cancellation of Removal                             1049

continuous residence and the other a crime committed after the alien had
been here more than seven years.490
      The alien’s first crime fell within the petty offense exception because
the court did not impose a sentence in excess of six months.491 As a result,
the alien was not inadmissible under section 212(a) because he had only
committed one crime.492 The alien’s continuous residence did not terminate
when the alien committed that offense because the offense did not render
the alien inadmissible.493 The alien was able, therefore, to reach the seven-
year mark before committing his second offense, which terminated his con-
tinuous residence. By then, he had already met the seven-year requirement
and was eligible to apply for cancellation of removal.494
      One cannot help but notice the difference in language between section
240A(b)(1)(C) and section 240A(d)(1)(B). To be eligible for consideration
for cancellation under section 240A(b)(1)(C), a nonpermanent resident must
not have been convicted of an offense under section 212(a).495 In contrast,
the language dealing with termination of continuous residence and continu-
ous physical presence requires the commission of an offense that renders the
alien inadmissible.496 Congress appreciated the difference between a con-
viction and commission of an offense that rendered the alien inadmissible.
In In re Garcia-Hernandez,497 the BIA treated the alien’s conviction as for-
given and thus not disqualifying the alien for cancellation of removal, be-
cause the crime for which the alien was convicted fell within the petty of-
fense exception of section 212(a)(2)(A)(ii).498 For all intents and purposes,
therefore, the BIA did not regard the alien as having been convicted of an
offense under section 212(a)(2).499 The exception itself does not ignore the
conviction; instead, it simply removes the alien from the inadmissible cate-

      490. See id. at 598.
      491. The statute provides that an alien convicted of a crime involving turpitude is not
inadmissible if “the maximum penalty possible for the crime . . . did not exceed imprison-
ment for one year and . . . the alien was not sentenced to a term of imprisonment in excess of
6 months (regardless of the extent to which the sentence was ultimately executed).” INA §
212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2000).
      492. The exception applies only if the alien has committed “only one crime.” INA §
212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii).
      493. See Deanda-Romo, 23 I. & N. Dec. at 599. The termination of continuous resi-
dence occurs if the alien commits an offense that “renders the alien inadmissible . . . under
section 1182(a)(2) [212(a)(2)].” INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1). Once the petty
offense applies, the alien would not be inadmissible.
      494. See Deanda-Romo, 23 I. & N. Dec. at 600.
      495. INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C) (2000).
      496. INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
      497. 23 I. & N. Dec. 590 (BIA 2003).
      498. The BIA viewed the plain language of section 240A(b)(1)(C) as “incorporating
the entirety of section 212(a)(2), including the exception for petty offenses set forth therein.”
Id. at 593.
      499. See id.
1050                          Michigan State Law Review                      [Vol. 2005:979

gory in a case where the maximum penalty for the crime is not more than
one year.500 Therefore, the exception does not pretend to remove the alien’s
conviction, but rather ensures that the alien will not be inadmissible despite
his conviction, if he meets certain criteria.501
       Cancellation of removal is available only if the alien has not been
convicted of an offense under section 212(a)(2).502 Section 240A(b)(1)(C)
does not tie the conviction to inadmissibility. Since Congress did not sug-
gest any correlation between conviction and inadmissibility in that section,
it is open to question whether the BIA’s dependence on the petty offense
exception can be sustained to grant the alien cancellation relief under such
circumstances. This formulation is a little different from the termination
section when commission of an offense must lead to the alien’s inadmissi-
bility for the accrual of continuous residence or continuous physical pres-
ence to end.503 The BIA in Garcia-Hernandez did not discuss whether it
saw any difference between a mere conviction and inadmissibility, but the
Congress must have been sending a message when it used different lan-
guage in section 240A(b)(1)(C) dealing with cancellation of removal.
       Another question may arise in connection with the termination provi-
sion. Although one of the termination points for continuous residence or
continuous physical presence is when a notice to appear is served on the
alien,504 there is a question whether a new period begins to run from the date
of that service. This can be an important consideration when the alien’s
proceedings take a long time, and the alien now wants to make the point that
he has been able to establish the necessary period of continuous residence or
continuous physical presence since the service of the notice to appear.
       Section 240A(d)(1) identifies certain events that end continuous resi-
dence or continuous physical presence,505 whereas section 240A(d)(2) cov-
ers certain absences from the United States that break an alien’s continuous
physical presence.506 It seems, therefore, that Congress intended to make a


      500. See INA § 212(a)(2)(A)(ii)(II), 8 U.S.C. § 1182(a)(A)(ii)(II) (2000).
      501. The exception provides that “[c]lause (i)(I) shall not apply to an alien who com-
mitted only one crime” if certain conditions are met. INA § 212(a)(2)(A)(ii), 8 U.S.C. §
1182(a)(2)(A)(ii) (2000). But the essence of clause (i)(I) is the inadmissibility of an alien
who is convicted of a crime involving moral turpitude. Thus, it is arguable that though the
alien’s conviction remains, the alien is still admissible if the exception applies.
      502. See INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).
      503. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (The relevant cut-off is when the
alien “has committed an offense referred to in section 1182(a)(2) [212(a)(2)] . . . of this title
that renders the alien inadmissible . . . under section 1182(a)(2) [212(a)(2)].”). Id.
      504. See id.
      505. See id.
      506. Section 240A(d)(2) provides as follows: “An alien shall be considered to have
failed to maintain continuous physical presence in the United States under subsections (b)(1)
and (b)(2) of this section if the alien has departed from the United States for any period in
Winter]           INA Admission and Cancellation of Removal                          1051

distinction between those two sections. If it did not intend such a distinc-
tion, one might query why it went out of its way to use different terminol-
ogy and to convey a message of termination in one section, while preferring
to deal in the other section with “breaks in presence.” Section 240A(d)(1)
stipulates an end to “any period” of continuous residence or continuous
physical presence if certain events occur, but that period refers to the differ-
ent times contemplated by sections 240A(a), 240A(b)(1), and 240A(b)(2).507
Therefore, the term “any period” in section 240A(d)(1) does not initiate a
new period of continuous residence or continuous physical presence if the
occurrence of a section 240A(d)(1) event has already terminated such resi-
dence or presence.508
      The other element that militates against the beginning of a new period
is that the earliest of the events covered in section 240A(d)(1) terminates
“any period of continuous residence or continuous physical presence.”509 If
a new period began to run following the issuance of a notice to appear, one
would have to ignore any crimes that the alien committed subsequently.510
In that event, the “whichever is earliest” language in section 240A(d)(1)
would be redundant. The legislative history of this section indicates that
Congress intended to remove the incentive for aliens to prolong their stay in
the United States.511 If an alien could restart his period of continuous physi-
cal presence after he has received his notice to appear, this would provide
even more incentive for him to devise some strategy for prolonging his stay
in order to accrue the necessary time for relief from deportation.512 Never-
theless, if an alien leaves the United States after a time-stopping event cov-
ered by section 240A(d)(1), and then reenters, he starts a new accrual period
for purposes of cancellation of removal.513


excess of 90 days or for any periods in the aggregate exceeding 180 days.” INA §
240A(d)(2), 8 U.S.C. § 1229b(d)(2).
      507. See Ram v. INS, 243 F.3d 510, 518 (9th Cir. 2001); McBride v. INS, 238 F.3d
371, 377 (5th Cir. 2001); In re Mendoza-Sandino, 22 I. & N. Dec. 1236, 1241 (BIA 2000).
      508. See Casillas-Figueroa v. Gonzales, 419 F.3d 447 (6th Cir. 2005); McBride v.
INS, 238 F.3d 371 (5th Cir. 2001); Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001);
Afolayan v. INS, 219 F.3d 784 (8th Cir. 2000); In re Mendoza-Sandino, 22 I. & N. Dec.
1236 (BIA 2000).
      509. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).
      510. See Mendoza-Sandino, 22 I. & N. Dec. at 1241. The BIA reasoned that “service
of a notice to appear or an Order to Show Cause is not simply an interruptive event that
resets the continuous physical presence clock, but is a terminating event, after which con-
tinuous physical presence can no longer accrue.” Id.
      511. See H.R. REP. NO. 104-469, pt. 1, at 122 (1996); H.R. REP. NO. 104-828, at 214
(1996) (Conf. Rep.).
      512. See Ram, 243 F.3d at 518; McBride, 238 F.3d at 377-78; Afolayan, 219 F.3d at
789; Mendoza-Sandino, 22 I. & N. Dec. at 1243.
      513. See Okeki v. Gonazales, 407 F.3d 585 (3d Cir. 2005); In re Cisneros-Gonzales,
23 I. & N. Dec. 668 (BIA 2004).
1052                        Michigan State Law Review                   [Vol. 2005:979

      The BIA and the Third Circuit recognize that it is the reentry that re-
starts the clock.514 Such an alien is in a different position from one who
never leaves, because in the latter case the disabling event stops the alien in
his tracks, and the alien can start a new period only by making a complete
physical break and then reentering.

C. The Problem of Retroactivity

       The stop-time rule has caused problems in other contexts. When the
IIRIRA replaced suspension of deportation with cancellation of removal, it
changed how the test of continuous physical presence was applied. Under
the suspension of deportation scheme covering aliens alleging extreme
hardship, the period extended from the time of the alien’s entry to the date
of the alien’s application for relief.515 The cancellation system stops the
period when the alien is served with a notice to appear, or when the alien
has committed certain offenses, which ever comes earlier.516 This language
dealing with a notice to appear created some doubt about the application of
the new statute to pending deportation proceedings because pre-IIRIRA
cases commenced with an order to show cause rather than a notice to ap-
pear.517 It was left to Congress to clarify that the stop-time rule was to apply
even in those cases which had begun with the issuance of an order to show
cause before the IIRIRA’s enactment.518 With that settled, aliens challenged
the retroactive application of the stop-time rule because many of them
would have been able to continue their physical presence under the suspen-
sion of deportation statute until they applied for relief. The new rule
stopped the aliens in their tracks because the statutory period required for
continuous residence or continuous physical presence immediately came to
a halt once the order to show cause or notice to appear was served on the
alien.
       No one expected aliens to be satisfied with this sudden change of for-
tune. For example, in Pinho v. INS,519 the alien’s appeal to the BIA for sus-
pension of deportation was pending when the IIRIRA was passed, and the
alien objected to the retroactive application of the stop-time rule.520 Al-

     514. See Okeki, 407 F.3d at 590; Cisneros-Gonzales, 23 I. & N. Dec. at 670.
     515. An alien required physical presence “for a continuous period of not less than
seven years immediately preceding the date of [the] application.” INA § 244(a)(1), 8 U.S.C.
§ 1254(a)(1) (1994).
     516. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2000).
     517. See INA § 242B, 8 U.S.C. § 1252b (2000).
     518. See IIRIRA, Pub. L. No. 104-208, § 309(c)(5), 110 Stat. 3009-627 (1996), as
amended by Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No.
105-100, § 203(f), 111 Stat. 2200.
     519. 249 F.3d 183 (3d Cir. 2001).
     520. See id. at 187.
Winter]            INA Admission and Cancellation of Removal                          1053

though there is a presumption against retroactivity,521 the court first looked
to see if Congress had expressly stipulated that the statute should apply to
pending cases, or only to new cases lodged after enactment of the statute.522
Its review indicated that the stop-time rule applied to orders to show cause
issued “before, on, or after the date of the enactment of [the] Act.”523 That
language left no doubt in the court’s mind that Congress intended, therefore,
to apply the rule to cases pending on that date.524 The court pointed out that
“[a] statute does not operate ‘retrospectively’ merely because it . . . upsets
expectations based in prior law.”525 The point here was that suspension of
deportation was prospective relief because it did not impair any vested
rights,526 and thus the new statute affecting such relief could not be regarded
as retroactive. In Pinho, the alien’s appeal was pending when the stop-time
rule became effective, but the new law changing the eligibility criteria did
not take away something to which the alien was entitled.527 The alien had
already been held deportable and thus had no legal right to remain in the
United States. There was no impermissible retroactive application of the
statute in this context.528
      The court observed that the usual due process elements such as “fair
notice, reasonable reliance, and settled expectations”529 were not implicated
in the case. The aliens’ situation had already crystallized and there was
nothing the aliens could do at that point to change their circumstances in

     521. The Supreme Court delineated the retroactivity rule in Landgraf v. USI Film
Products as follows:
     When a case implicates a federal statute enacted after the events in suit, the court’s
     first task is to determine whether Congress has expressly prescribed the statute’s
     proper reach. If Congress has done so, of course, there is no need to resort to judi-
     cial default rules. When, however, the statute contains no such express command,
     the court must determine whether the new statute would have retroactive effect,
     i.e., whether it would impair rights a party possessed when he acted, increase a
     party’s liability for past conduct, or impose new duties with respect to transactions
     already completed. If the statute would operate retroactively, our traditional pre-
     sumption teaches that it does not govern absent clear congressional intent favoring
     such a result.
511 U.S. 244, 280 (1994).
     522. See Pinho, 249 F.3d at 188.
     523. Id. (quoting IIRIRA § 309(c)(5), as amended by NACARA § 203(a)(1)).
     524. See id.
     525. Id. (quoting Landgraf, 511 U.S. at 269).
     526. See id. at 189 (citing Tefel v. Reno, 180 F.3d 1286, 1302 (11th Cir. 1999)).
     527. “At most, the [aliens] merely had an expectation of receiving the relief re-
quested, not a right to it.” Id. The suspension of deportation statute on which the alien de-
pended provided only a discretionary remedy. See INA § 244(a)(1), 8 U.S.C. § 1254(a)(1)
(1994).
     528. The aliens claimed that the retroactive application of the stop-time rule denied
them procedural due process in violation of the Fifth Amendment. See Pinho, 249 F.3d at
188.
     529. Id. at 189 (quoting Landgraf, 511 U.S. at 210).
1054                         Michigan State Law Review                    [Vol. 2005:979

order to ensure a favorable result.530 There was a rational basis for applying
the stop-time rule to pending cases.531 Congress wanted to ensure prompt
removal of deportable aliens and to remove any incentive for them to pro-
long their illegal stay in the United States.532
      The Pinho decision on the retroactivity question was only an example
of things to come. Not too long after, the Supreme Court had an opportu-
nity to explore the issue in detail in INS v. St. Cyr,533 when an alien, who had
pleaded guilty to an aggravated felony before the enactment of IIRIRA,
argued that his post-IIRIRA removal proceedings could not apply the new
rules against him.534 Had the old section 212(c) rule applied to the alien, he
would have been eligible for a waiver of deportation under the law which
was in effect when he was convicted.535 The pivotal question, therefore, was
whether the IIRIRA could be applied retroactively to deny the alien relief.
The Court used a two-step analysis in deciding the retroactivity question. It
looked to see whether Congress had indicated with sufficient clarity that the
new statute should be applied retroactively.536 Its unsuccessful search for
such clarity and the usual presumption against retroactive application of
ambiguous statutes combined to send the Court to the second step of its
analysis. The Court had to decide whether the denial of section 212(c) re-
lief would have an impermissible retroactive effect on the alien.537
      The Court reverted to the principle that a statute has a retroactive ef-
fect when it “takes away or impairs vested rights acquired under existing
laws, or creates a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already past.”538 The
Court left no doubt that the IIRIRA had attached a new disability to the
alien in St. Cyr, who had pleaded guilty expecting eventual relief under sec-

     530. The criteria for relief are applied to the alien in the condition in which the de-
portable alien is found and the alien could have done nothing to change his circumstances.
See id.
     531. See id. at 189; Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2000).
     532. See Pinho, 249 F.3d at 190; Gonzalez-Torres v. INS, 213 F.3d 899, 903 (5th Cir.
2000); Appiah, 202 F.3d at 710; see also H.R. REP. NO. 104-469, pt. 1, at 122 (“Suspension
of deportation is often abused by aliens seeking to delay proceedings until 7 years have ac-
crued.”).
     533. 533 U.S. 289 (2001).
     534. See id. at 293.
     535. Section 212(c) gave the Attorney General broad discretion to admit certain
aliens who would normally be inadmissible, if they were returning to a “lawful unrelin-
quished domicile of seven consecutive years.” INA § 212(c), 8 U.S.C. § 1182(c) (1994).
Although the literal language of the statute covered returning resident aliens only and thus
exclusion proceedings, it was eventually applied also to lawful permanent residents in depor-
tation proceedings. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); In re Silva, 16 I. & N.
Dec. 26 (BIA 1976).
     536. See St. Cyr, 533 U.S. at 316.
     537. See id. at 320.
     538. Id. at 321 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994)).
Winter]             INA Admission and Cancellation of Removal                             1055

tion 212(c).539 The significance of a plea agreement was not lost on the
Court, for the agreement involved a quid pro quo between the alien and the
government, which found the alien waiving his right to a trial with the as-
surance of his eligibility for relief under section 212(c).540 The dependence
of aliens in St. Cyr’s position on “settled practice, the advice of counsel, and
perhaps even assurances in open court that the entry of the plea would not
foreclose section 212(c) relief,” surely convinced the Court that it could not
apply the new IIRIRA retroactively if the elements of reasonable reliance
and settled expectations were to be respected.541 After all, alien defendants
would not generally enter a plea of guilt without considering the immigra-
tion consequences.542 This is where the element of reliance takes hold, and
if the government engages in the kind of quid pro quo exercise that leads
eventually to an alien’s guilty plea, it would be manifestly unfair to apply
the IIRIRA retroactively to deny the alien relief that was an essential part of
the bargain.543
       It is one thing to rely on a plea agreement that holds some prospect of
relief under section 212(c), but it is quite another to proceed to trial in the
hope of avoiding a conviction that will render section 212(c) irrelevant. In
Rankine v. Reno,544 the alien was convicted after a trial prior to the effective
date of IIRIRA, and the court held that the “repeal of 212(c) relief [was] not
. . . impermissibly retroactive.”545 The court distinguished St. Cyr by re-
minding the parties that the alien in that case had pleaded guilty on the un-
derstanding that he would be eligible for section 212(c) relief.546 There was
no such reliance in Rankine because none of the aliens changed his position
because of his supposed eligibility for relief.547 The Rankine court repre-
sents the prevailing view that aliens who do not plead guilty cannot claim
reliance of the kind highlighted in St. Cyr because they do not depend upon
the relief promised under the superseded statute.548 In Rankine, the aliens


     539. See id. at 322 (citing Landgraf, 511 U.S. at 269).
     540. See id. at 321-22.
     541. Id. at 323.
     542. See id. at 322.
     543. Although deportation is not considered as punishment of an alien for past crimi-
nal activity, a court can nevertheless consider an alien’s reliance on the continued availability
of discretionary relief in deciding whether a statute has been applied retroactively. See id. at
324.
     544. 319 F.3d 93 (2d Cir. 2003).
     545. Id. at 102.
     546. Id. at 99.
     547. The court pointed out that, “[u]nlike aliens who entered pleas, the [aliens] made
no decision to abandon any rights and admit guilt—thereby immediately rendering them-
selves deportable—in reliance on the availability of the relief offered prior to IIRIRA.” Id.
     548. See Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004); Dias v. INS, 311
F.3d 456 (1st Cir. 2002) (per curiam); Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002);
1056                           Michigan State Law Review                      [Vol. 2005:979

did not surrender any rights that produced such reliance, but instead as-
sumed the risk of not qualifying for any kind of relief because of the finding
of guilt and the subsequent sentencing that might fall outside the limits of
section 212(c).549
       Another distinction comes to mind in this context. An alien’s decision
to go to trial puts the situation out of the alien’s control, for he does not
know whether the result will keep statutory relief in play. That was the es-
sence of the plea arrangement in the St. Cyr context.550 In the case of a trial,
the alien is really challenging the criminal allegations, unfettered by the
immigration possibilities lurking in the background. Unless there is a con-
viction, the alien does not have to worry about the immigration issues, and
thus the relationship between the criminal and immigration aspects does not
suggest the kind of reliance that permeated St. Cyr. In Rankine, the aliens
did not go to trial with the expectation that they would have to rely on some
kind of immigration-related relief.551 That would have been the last thing on
their minds. They were no doubt looking to complete vindication and,
therefore, there would have been no need for them to rely on any other pos-
sibilities.
       In a similar case, the Fourth Circuit characterized an alien’s opting for
trial as “rolling the dice,” since the alien’s eligibility for discretionary relief
remained uncertain in view of a trial’s unpredictable outcome.552 The
alien’s decision in Chambers v. Reno was about the trial, but that decision
did not put the alien in danger of deportation, regardless of the existence of
pre-IIRIRA relief.553 The alien could hardly have shown a reliance interest


Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002); Brooks v. Ashcroft, 283
F.3d 1268 (11th Cir. 2002).
      549. See Rankine, 319 F.3d at 100. This surrender of rights and the ensuing grant of
relief represent the quid pro quo element that the Supreme Court discussed in St. Cyr, 533
U.S. at 321.
      550. The Fourth Circuit said it best in Chambers v. Reno when it observed that, “by
rolling the dice and going to trial, [the alien] actually ensured that his eligibility for discre-
tionary relief would remain uncertain.” Chambers v. Reno, 307 F.3d 284, 291 (4th Cir.
2002).
      551. An alien’s expectation of immigration relief comes into play only if the alien
engages in the kind of exchange contemplated by St. Cyr: the pleas of guilt given in ex-
change for a promise of discretionary relief under the statute. See Rankine, 319 F.3d at 100;
Theodoropoulos v. INS, 313 F.3d 732, 739 (2d Cir. 2002); Armendariz-Montoya v. Sonchik,
291 F.3d 1116, 1121 (9th Cir. 2002). When an alien enters into a plea bargan, St. Cyr does
not require that the alien must have already accrued seven years of lawful domicile at the
time of his plea to qualify for relief under section 212(c), for the alien may be able to con-
tinue his accrual until removal proceedings begin. See Alvarez-Hernandez v. Acosta, 401
F.3d 327, 331 (5th Cir. 2005).
      552. See Chambers, 307 F.3d at 291.
      553. In Chambers, the alien’s decision to go to trial had no impact on his immigration
status. That decision did not make the alien deportable at that time. See id. As a matter of
Winter]             INA Admission and Cancellation of Removal                             1057

of the kind contemplated by St. Cyr, because the decision to pursue a trial
did not at the time affect his immigration status, and the necessary reliance
link was therefore missing.554
       Despite the prevailing view that limits St. Cyr’s holding to the plea-
bargain context, the Third Circuit still finds some sympathy for an alien
who proceeds confidently to trial relying on legal advice that a conviction
will not jeopardize his chances for discretionary relief.555 In that event, the
alien’s reliance is not grounded on a quid pro quo between the alien and the
government that one will find in the plea-bargain arrangement. Neverthe-
less, it is arguable that such an alien is in the same position as one who has
his settled expectation disrupted after his plea of guilt. It is not surprising
that an alien in the latter category might have a heightened expectation
about his eligibility for relief in light of the negotiations preceding his plea,
but it is notable that the Third Circuit in Ponnapula v. Ashcroft did not find
any basis for such a heightened expectation articulated by the St. Cyr
Court.556 Thus, the court in Ponnapula was persuaded that the expectation
or reliance identified in St. Cyr might be found both in a plea bargain or a
decision to go to trial after refusing such a bargain.557 The “heightened ex-
pectation” promoted in St. Cyr, but missing in Rankine, was rooted no doubt
in the alien’s surrender of any rights that he may have had to a trial in order
to guarantee his eligibility for immigration relief.558 The St. Cyr formula

fact, an alien who decides to go to trial is counting on a result that will have no effect on his
immigration status.
      554. The Chambers court acknowledged that reliance is not an essential element of a
claim of impermissible retroactivity. See id. at 292-93. But, the alien could not bring him-
self within Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997),
which, although not mentioning the reliance feature, held that an amendment to the False
Claim Act had a retroactive effect because it eliminated a defense related to pre-amendment
conduct. See Chambers, 307 F.3d at 293.
      555. The court in Ponnapula v. Ashcroft explained:
      Though St. Cyr concentrated on the many aliens who ultimately accepted plea
      agreements, it is not reasonable to believe that all aliens who rejected plea agree-
      ments thereby disclaimed any interest in § 212(c) relief . . . . There are many rea-
      sons to proceed to trial . . . but few if any of them are inconsistent with preserving
      a contingent interest in § 212(c) relief.
 373 F.3d 480, 495 (3d Cir. 2004).
      556. See Ponnapula, 373 F.3d at 499. But see Rankine v. Reno, 319 F.3d 93, 100 (2d
Cir. 2003) (stating that the aliens who went to trial assumed no heightened expectation like
the alien in St. Cyr, by deciding to go to trial).
      557. See Ponnapula, 373 F.3d at 499-500. But see Armendariz-Montoya v. Sonchik,
291 F.3d 1116, 1121 (9th Cir. 2002) (“Unlike aliens who pleaded guilty, aliens who elected a
jury trial cannot plausibly claim that they would have acted any differently if they had known
about § 440(d).”); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002) (“It follows that, having
been convicted after a trial where there was not, and could not have been, reliance by the
defendant on the availability of discretionary relief, [the alien] may not argue that the statute
has impermissible retroactive effect as to him.”).
      558. See Rankine, 319 F.3d at 100.
1058                          Michigan State Law Review                     [Vol. 2005:979

was to seek out the quid pro quo that underlay the alien’s reliance.559 But
where that element is missing, the alien has to wait until the trial is over to
determine whether he has to rely on the availability of relief from deporta-
tion. If there is no guilty verdict, the alien does not have to worry about
such relief and thus it is more difficult to identify the alliance between the
alien’s original decision and his reliance on relief.
       When an alien enters a plea, he knows then the elements of his bar-
gain. Uppermost in his mind is the prospect of avoiding deportation or re-
moval. A trial may not provide the same security, because the alien does
not know how it will turn out. This is where an alien’s purported reliance
fails to take root.560 He runs the risk of forfeiting any chance at eligibility if
his conviction puts him beyond the pale. The reliance interest in pleading
guilty, however, rests on “the expectation that, by conferring a benefit on
the government, [the alien] would receive a benefit in return—a reduced
sentence that would ensure continued eligibility for discretionary relief.”561
The alien’s decision to go to trial does not produce any immediate effect on
the alien’s immigration status. But it is the uncertainty about the result that
casts a shadow on the element of reliance and emphasizes the element of
risk. On the other hand, an alien who pleads guilty to a qualifying crime
immediately renders himself deportable, unless saved by the discretionary
relief that he counted on when admitting his guilt.562
       If St. Cyr provided a natural context for the application of the reliance
principle, it is only because an alien in that situation was entitled to expect
some relief as a result of his decision to admit guilt.563 This was the con-
templated exchange that formed an essential part of the bargaining process.
Because of these favorable factors in St. Cyr, the reliance element has re-
ceived its fair share of attention in subsequent cases. This development was
not unexpected, for it was a certain indicator of the fact that a new statute
was being impermissibly retroactive. But it was not too long before a court

      559. See INS v. St. Cyr, 533 U.S. 289, 321-22 (2001).
      560. In Rankine, the Second Circuit explained:
      The claim that [the aliens] relied on the availability of § 212(c) relief in making the
      decision to go to trial is therefore somewhat hollow: in fact, they decided to go to
      trial to challenge the underlying crime that could render them deportable and, had
      they succeeded, § 212(c) relief would be irrelevant.
Rankine, 319 F.3d at 99-100. However, the Second Circuit has held that an alien may have a
“heightened expectation of prospective relief” if he refrains from filing an application for
relief immediately in anticipation of building a stronger case for relief. Restrepo v. McElroy,
369 F.3d 627, 637 (2d Cir. 2004). The expectation that relief would be available later fits
within the concept of reasonable reliance. See id. at 638.
      561. Chambers, 307 F.3d at 290 (citing St. Cyr, 533 U.S. at 323-24) (emphasis omit-
ted).
      562. See id. at 289; Theodoropoulos v. INS., 313 F.3d 732, 739 (2d Cir. 2002); Lara-
Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001).
      563. See St. Cyr, 533 U.S. at 323-24; Rankine, 319 F.3d at 102.
Winter]            INA Admission and Cancellation of Removal                            1059

had to decide whether this impermissible retroactivity might arise even in
the absence of an alien’s reliance on an old statute.
       The Fourth Circuit rose to the challenge in Olatunji v. Ashcroft,564
when an alien pleaded guilty to theft in 1994, and then found himself inad-
missible because of his conviction upon his return in 1998 from an overseas
trip.565 The alien contended that the IIRIRA had attached new legal conse-
quences to his guilty plea, and thus the statute was impermissibly retroac-
tive.566 In response, the government argued that the statute could be applied
to the alien in this case unless the alien could show that he relied upon the
law existing at the time of his guilty plea, which would have allowed him to
take brief trips abroad without penalty.567 The court settled the matter by
holding that reliance was not a requirement of impermissible retroactivity.568
       It was a surprising development in light of the St. Cyr approach, which
had emphasized the fact that St. Cyr and other aliens like him had “almost
certainly relied upon [the likelihood of getting relief] in deciding whether to
forgo their right to a trial.”569 The Court in St. Cyr explained that a statute
has a retroactive effect when it “takes away or impairs vested rights ac-
quired under existing laws, or creates a new obligation, imposes a new duty,
or attaches a new disability, in respect to transactions or considerations al-
ready past.”570 The inclusion of such language in the opinion raised the
question whether the statute could be impermissibly retroactive in the ab-
sence of an alien’s reliance.571 If the new statute attached a new disability to
a past transaction without an alien’s reliance on the old, the Olatunji ap-
proach would still recognize a remedy for the alien since the court found
that reliance in any form was “irrelevant to the retroactivity inquiry.”572



     564. 387 F.3d 383 (4th Cir. 2004).
     565. See id. at 386.
     566. See id. at 388.
     567. See id. The government took its lead from the St. Cyr language that aliens like
St. Cyr almost certainly relied upon the likelihood of getting section 212(c) relief when they
decided to pass up a trial in favor or a guilty plea. See id.
     568. See id.
     569. INS v. St. Cyr, 533 U.S. 289, 325 (2001).
     570. Id. at 321 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994)).
     571. The Supreme Court gave some clue in Hughes that the language first advanced
by Justice Story in Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767
(C.C.D.N.H. 1814) does not define the “outer limit of impermissible retroactivity.” Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 947 (1997). The Court reiter-
ated that position in St. Cyr, 533 U.S. at 321 n.46. It is to be noted that the Court in Hughes
held that certain defenses could not be applied retroactively, without getting into any discus-
sion about reliance. See Hughes, 520 U.S. at 947.
     572. Olatunji v. Ashcroft, 387 F.3d 383, 396 (4th Cir. 2004). Despite this strong
statement about the irrelevance of reliance, the court nevertheless conceded that at most it
would insist on “objectively reasonable reliance.” Id.
1060                          Michigan State Law Review                     [Vol. 2005:979

      One can sympathize with the idea that reliance is irrelevant in this
context. The Supreme Court itself may have contributed to this dilemma,
for, in Hughes Aircraft Co. v. United States ex rel. Schumer,573 it found,
without taking into account the possibility of Hughes’s reliance on the pre-
vious statutory language, that the elimination of certain defenses under the
False Claims Act could not be tolerated.574 Although the amended Act did
not increase a party’s liability for conduct occurring under the previous ver-
sion, it nevertheless eliminated a defense that would have been available to
a party under the prior statutory scheme.575 In that sense, therefore, it at-
tached a new disability under the formula identified in Landgraf v. USI Film
Products.576 Nevertheless, the Court in Hughes Aircraft was careful to point
out that the Landgraf elements were not the exclusive feature of impermis-
sible retroactivity, but rather constituted a sufficient condition for invoking
the presumption against such retroactivity.577 It seems, therefore, that one
can accept a Landgraf formulation without invoking the reliance factor.
This is so because the section of the statute under consideration in Landgraf
created a new cause of action by providing for punitive damages when none
were previously available. It therefore attached a new disability to past
events, a circumstance that fit neatly within the Landgraf rejection of im-
permissible retroactivity.578 It is understandable, therefore, that the Fourth
Circuit in Olatunji found the statute to be impermissibly retroactive, be-
cause the statute attached new legal consequences to the alien’s decision to
plead guilty, but the court did not deem it necessary to import a reliance
requirement into the mix.579




      573. 520 U.S. 939 (1997).
      574. See id. at 951.
      575. See id. at 948. The amendment changed the substance of the cause of action by
imposing a new disability on past transactions. Id. This was a reiteration of the principle
enunciated in Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994).
      576. The formula originated with Justice Story in Wheeler, where he explained the
retroactivity doctrine as follows: “Upon principle, every statute, which takes away or impairs
vested rights acquired under existing laws, or creates a new obligation, imposes a new duty,
or attaches a new disability, in respect to transactions or considerations already past, must be
deemed retrospective; and this doctrine seems fully supported by authorities.” Soc’y for the
Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814) (No. 13,156).
      577. See Hughes, 520 U.S. at 947; see also Faiz-Mohammad v. Ashcroft, 395 F.3d
799, 808 (7th Cir. 2005); Arevalo v. Ashcroft, 344 F.2d 1, 14 (1st Cir. 2003).
      578. See Landgraf, 511 U.S. at 283 (citing Wheeler, 22 F. Cas. at 767).
      579. See Olatunji v. Ashcroft, 387 F.3d 383, 394 (4th Cir. 2004).
Winter]            INA Admission and Cancellation of Removal                            1061

                                       CONCLUSION

      The INA has had its fair share of amendments since its enactment in
1952.580 It is open to question whether it is in better shape now than it was
then. One cannot fault Congress for trying to clarify the reentry doctrine,
but one wonders whether the new formulation has solved the problems of
old. Before the IIRIRA, a lawful permanent resident was not regarded as
making an “entry” if he did not intend to make a departure from the United
States that was meaningfully interruptive.581 The Supreme Court provided
the guiding elements of this intent exception that focused on the innocence,
casualness, and brevity of an alien’s trip.582 The new INA definition deals
with the terms “admission” and “admitted,” but defines those words in
terms of an alien’s “lawful entry.”583 Congress was surely aware of the
widespread concern about the term “entry,” and after the Supreme Court’s
intervention, it should have been obvious that the definition of “admission”
would only cause more confusion in the judicial arena. If the alien’s admis-
sion is related to the alien’s lawful entry, it is certainly relevant to inquire
whether the Fleuti criteria should be a continuing consideration in the case
of a lawful permanent resident.584
      Section 101(a)(13)(C) was intended to clarify the position by isolating
those specific circumstances in which such an alien would be regarded as
seeking admission.585 The ambiguity, such as it is, lies in the “unless”
clause.586 It would have been preferable if the drafters had merely stated
that certain conduct would result in a determination that the alien was seek-

      580. The last major overhaul came with the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996).
      581. See Rosenberg v. Fleuti, 374 U.S. 449 (1963). The Court explained as follows:
      [W]e do not think Congress intended to exclude aliens long resident in this country
      after lawful entry who have merely stepped across an international border and re-
      turned in “about a couple hours.” Such a holding would be inconsistent with the
      general purpose of Congress in enacting § 101(a)(13) to ameliorate the severe ef-
      fects of the strict “entry” doctrine.
Id. at 461-62.
      582. See id. at 462.
      583. Section 101(a)(13)(A) of the INA provides that “[t]he terms ‘admission’ and
‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” INA § 101(a)(13)(A), 8
U.S.C. § 1101(a)(13)(C) (2000).
      584. See LEGOMSKY, supra note 14, at 522-25.
      585. See Morales-Morales v. Ashcroft, 384 F.3d 418, 424 (7th Cir. 2004); Tineo v.
Ashcroft, 350 F.3d 382, 393 (3d Cir. 2003); In re Collado-Munoz, 21 I. & N. Dec. 1061,
1065 (BIA 1998). But see Richardson v. Reno, 994 F. Supp. 1466 (S.D. Fla. 1998), rev’d on
other grounds, 162 F.3d 1338 (11th Cir. 1998).
      586. “An alien lawfully admitted for permanent residence . . . shall not be regarded as
seeking an admission . . . unless the alien” has taken one of the steps outlined in paragraphs
(i) through (vi). INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (2000) (emphasis added).
1062                          Michigan State Law Review                     [Vol. 2005:979

ing admission. That would have removed any lingering doubts about the
continued viability of the Fleuti criteria in this context.587 There is no prob-
lem with those aliens who are not covered, but the “unless” clause provides
some basis for optimism to those who argue about the Fleuti elements. To
put that matter to rest, Congress should amend the section to provide that, if
an alien falls within any of the categories covered by section 101(a)(13)(C),
he shall not be regarded as seeking an admission to the United States. Such
language will remove any element of discretion from the adjudicator and
settle once and for all any lingering concerns about the Fleuti factors.
       There is room for clarification elsewhere in the cancellation of re-
moval section. Section 240(A)d)(1) terminates an alien’s continuous resi-
dence or continuous physical presence when the alien commits an offense
referred to in section 212(a)(2) that renders him removable under section
237(a)(4).588 There is no correlation between those two sections, and the
drafters may have been thinking instead about relating section 212(a)(3) to
section 237(a)(4), both of which deal with security and related grounds. In
any event, it is arguable that the reference to section 237(a)(4) is misplaced
because an alien is not eligible for cancellation of removal if he is deport-
able under section 237(a)(4),589 and therefore it is not clear why Congress
went out of its way to connect section 212(a)(2) to section 237(c)(4). It is
not enough to treat the reference to section 237(a)(4) as merely additional
language that does no harm.
       Congress must also clarify the effect of an alien’s voluntary departure
under threat of deportation on the operation of the rule covering individual
absences in excess of ninety days or aggregate absences in excess of 180
days.590 Although the BIA and the courts have held that section 240A(d)(2)
interrupts an alien’s continuous physical presence when an alien leaves un-
der threat of deportation,591 they may have done so under the impression that
Congress wanted to perpetuate “the innocent, casual, and brief” elements
handed down by Fleuti and later codified in former section 244(b). Since
Congress was not reluctant to deny all relief under the INA to any alien
who, having left the country under an order of removal, reentered ille-

     587. Professor Legomsky notes: “The statute says an LPR will not be regarded as
seeking admission unless one of several events has occurred. If one of the listed events has
occurred, does the statute imply that an LPR who has made an entry is regarded as seeking
an admission?” LEGOMSKY, supra note 14, at 523.
     588. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (2000).
     589. See INA § 240A(c)(4), 8 U.S.C. § 1229b(c)(4).
     590. Section 240A(d)(2) treats certain absences as failure to maintain continuous
physical presence if the alien had departed for certain periods. It does not specify the nature
of the departure. See INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2).
     591. See, e.g., Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Mireles-Valdez v.
Ashcroft, 349 F.3d 213 (5th Cir. 2003); Vasquez-Lopez v. Ashcroft, 315 F.3d 1201 (9th Cir.
2003); In re Romalez, 23 I. & N. Dec. 423 (BIA 2002).
Winter]          INA Admission and Cancellation of Removal                   1063

gally,592 it is not necessary to bend over backwards to ensure that an alien
should suffer the same fate if he did not depart under an order of removal.
Perhaps there is a gap here that needs to be filled, but it should not be done
by using a section that does not answer the question and then transplanting a
regulation that is inapplicable to the situation.593
       There is no question that if there was no section dealing with certain
breaks in presence, any departure from the United States would interrupt an
alien’s physical presence. Section 240A(d)(2) provides an exception to the
literal interpretation of the physical presence rule by allowing an alien to be
absent for a specific period without jeopardizing his status. If more lan-
guage of forgiveness is necessary to ignore absences of ninety days or less,
then the language of section 240A(d)(2) has not done its work. This is the
issue that Congress should settle; if not, the BIA and the courts are left to
speculate that Congress must have intended the statute to accommodate
other breaks besides those currently covered in section 240A(d)(2).
       This is reminiscent of the confusion arising out of the rule concerning
admission for lawful permanent residents who are returning to the United
States.594 Even though section 101(a)(13)(C) clearly sets out the criteria for
determining whether a returning permanent resident should be regarded as
seeking admission, some courts still exhibit a reluctance to abandon the
innocent, casual, and brief standard. The same reluctance appears in the
context of section 240A(d)(2). These are issues that can wait no longer to
be clarified.




    592. See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (2000).
    593. See Morales-Morales v. Ashcroft, 384 F.3d 418, 427-28 (7th Cir. 2004).
    594. Compare In re Collado, 21 I. & N. Dec. 1061 (BIA 1997), with Richardson v.
Reno, 994 F. Supp. 1466 (S.D. Fla. 1998).

								
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