Delfino Vasquez-Lopez v. John Ashcroft, Attorney General

Delfíno Vasquez Lopez (“Petitioner”) seeks review of the Board of Immigration Appeals’ (“BIA”) determination that his departure from the United States pursuant to a grant of administrative voluntary departure under what was then 8 U.S.C. § 1252 (b)(4) (1994) 1 occasioned a break in his “continuous physical presence in the United States” for the purposes of 8 U.S.C. § 1229b, the cancellation of removal statute. We conclude that the BIA’s reading of § 1229b is entitled to Chevron deference and deny the petition for review.

I.

Petitioner claims that he illegally entered the United States in 1988. He admits that, at some point during the period from 1992 to 1994, he was arrested by immigration authorities, admitted deporta-bility, successfully requested administrative voluntary departure under 8 U.S.C. § 1252 (b)(4) (1994), and was escorted to Mexico by the Border Patrol. Shortly thereafter, he illegally reentered the United States.

In 1998, the INS initiated a removal proceeding against Petitioner by issuing him a Notice to Appear. Petitioner promptly applied to cancel the removal proceeding. The Immigration Judge (“IJ”) denied cancellation. The BIA conducted a de novo…

ORDER

The opinion filed on January 13, 2003, is ordered amended. The Clerk is instructed to file the amended opinion. Judge Ber-zon’s dissent from the order denying rehearing en banc shall also be filed.

The panel has voted unanimously to deny the petition for rehearing. Judge O’Scannlain has voted to deny the petition *963 for rehearing en banc, and Judge Staple-ton and Judge Fernandez so recommended.

The full court was advised of the petition for rehearing en banc and an active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel or en banc rehearing will be entertained.

join, dissenting from the denial of rehearing en banc:

Congress enacted a new definition of “continuous physical presence” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996): Although the pre-1996 Immigration and Nationality Act (INA) provided that “brief, casual, and innocent” departures were not breaks in continuous presence, see 8 U.S.C. § 1254 (b)(2) (repealed 1996), IIRIRA excised that language and substituted the following:

8 U.S.C. § 1229b(d)(2).

Despite this evident change in the relevant statutory regime, the panel’s opinion resurrects the pre-IIRIRA concept of “brief, casual, and innocent” departures. The opinion consequently denies Vasquez-Lopez eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(l) because his departure, although for fewer than 90 days, was under threat of deportation. We should have reheard this case en banc in order to give effect to the language Congress chose: “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995).…

343 F.3d 961 Delfino VASQUEZ-LOPEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 01-71827. United States Court of Appeals, Ninth Circuit. Submitted November 7, 2002. * — San Francisco, California. Filed January 13, 2003. Amended September 11, 2003. Michael Franquinha, Phoenix, Arizona, for the petitioner. Robert D. McCallum, Jr., Alison R. Drucker, Donald E. Keener, Office of Immigration Litigation, Washington, D.C., for the respondent. Petition to Review an Order of the Board of Immigration Appeals. INS No. Aem-qri-kuk. Before: Walter K. STAPLETON, ** Diarmuid F. O'SCANNLAIN, and F. FERDINAND FERNANDEZ, Circuit Judges. ORDER 1 The opinion filed on January 13, 2003, is ordered amended. The Clerk is instructed to file the amended opinion. Judge Berzon's dissent from the order denying rehearing en banc shall also be filed. 2 The panel has voted unanimously to deny the petition for rehearing. Judge O'Scannlain has voted to deny the petition for rehearing en banc, and Judge Stapleton and Judge Fernandez so recommended. 3 The full court was advised of the petition for rehearing en banc and an active judge requested a vote on whether to rehear the matter en…