Ochoa-Amaya

BACKGROUND

Ochoa-Amaya, a Mexican citizen born in 1978, entered the United States without inspection in 1985. In August 1992, Ochoa-Amaya’s father, a lawful permanent resident, filed a visa petition on behalf of his wife and minor children, includ- ing Ochoa-Amaya. In February 1997, Ochoa-Amaya effec- tively terminated his pending application by marrying his 74 year-old U.S. citizen bride. Eventually, all family members except Ochoa-Amaya became lawful permanent residents.

On July 13, 1997, after apprehending Ocho-Amaya when he attempted illegally to reenter the United States after return- ing to Mexico for his brother’s funeral, the Immigration and Naturalization Service (INS) charged Ochoa-Amaya under 8 U.S.C. § 1182(a)(6)(A)(i) for being an alien present in the United States without admission or inspection.1 At a hearing, 1 The INS was abolished effective March 1, 2003, and its functions transferred to the newly formed Department of Homeland Security. See 6 U.S.C. § 542. For ease of reference, we refer to the relevant agency as the

INS.

3368 OCHOA-AMAYA v. GONZALES Ochoa-Amaya conceded removability, but requested cancella- tion of removal under 8 U.S.C. §…