Corro-Barragan v. Holder

The “physical presence” requirements under 8 U.S.C. §§ 1229c(b)(1)(A) and 1229b(d)(2) are different, in that § 1229c(b)(1)(A) has no exceptions for departures during the one-year period of physical presence required for voluntary departure while § 1229b(d)(2) allows for brief departures from the United States that do not interrupt the ten-year period of continuous physical presence required for cancellation of removal.

Elisned Corro-Barragan ("Corro") came to the United States in 1991 without inspection. She is a citizen of Mexico, but has been living in Napa, California with her three, US citizen children since she entered in 1991. Corro continuously resided in the US with the exception of two brief trips to Mexico. In 2007, the Department of Homeland Security served Corro with a Notice to Appear, charging her as removable from the US under 8 U.S.C. § 1182(a)(6)(A)(i). Corro filed an application for cancellation of removal and an Immigration Judge (“IJ”) denied the application along with her request for voluntary departure. The IJ held that Corro did not meet the requirement of “exceptional and extremely unusual hardship” a requirement in the statute. The IJ noted that while §1229b(d)(2) provides that brief departures from the US do not interrupt the ten-year period of continuous physical presence required for cancellation of removal, § 1229c(b)(1)(A) has no exceptions for departures during the one-year period of physical presence required for voluntary departure. The Board of Immigration Appeals (“BIA”) agreed with the IJ’s reasoning and dismissed Corro’s appeal. The Ninth Circuit held that the statute was unambiguous and that it requires uninterrupted physical presence in the US for one year for an alien to be eligible for voluntary departure at the conclusion of removal proceedings. Corro argued that using different interpretations of the “physical presence” requirement under § 1229b and § 1229c produces absurd results and undermines the purpose of the voluntary departure statute. The panel held that Congress acted intentionally in including special rules for brief interruptions in physical presence under § 1229b but excluding those rules from § 1229c. PETITION DENIED.