2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2011

Gad Demandstein v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 10-1230

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1230

___________

GAD DEMANDSTEIN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(A071-875-923)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 23, 2011

Before: FUENTES, VANASKIE and NYGAARD, Circuit

Judges

(Opinion filed: February 24, 2011)

Lauren A. Anselowitz

Harlan York & Associates

60 Park Place

Suite 1010

Newark, NJ 07102

Robert A. Frank

Frank & Pollack
2

972 Broad Street

Suite 602

Newark, NJ 017102

Counsel for Petitioner

Eric H. Holder, Jr.

Tony West

John C. Cunningham, I

Regina A. Byrd

Thomas W. Hussey

Don G. Scroggin

United States Department of Justice

Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, DC 20044-0878

Counsel for Respondents

___________

OPINION OF THE COURT

___________

FUENTES, Circuit Judge.

Gad Demandstein, a native and citizen of Israel, 

petitions for review of a final order of removal. For the 

reasons that follow, we hold that the record supports the

Board of Immigration Appeals‟s (“BIA”) determination that 

Demandstein is ineligible for cancellation of removal under 

INA § 240A(b)(1), and will deny the petition for review.

I.

Demandstein, formerly “Gad Yahalomi,” first entered 

the United States in 1987 on a visitor visa and overstayed. In 

1990 and 1991, he again entered as a visitor and overstayed 

each time. In 2004, Demandstein applied for an adjustment 

of status based on an employer‟s approved immigrant petition 
3

for an alien worker. The Department of Homeland Security 

(“DHS”) denied the request to adjust status because 

Demandstein failed to submit an affidavit detailing his past 

attempts to enter the United States, and because he was

arrested in 1992 for attempting to smuggle another alien into 

this country. 

In 2007, DHS served a Notice to Appear, charging 

Demandstein as inadmissible for being present without being

admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), and as an 

alien who knowingly encouraged or assisted another alien in 

trying to enter the United States illegally, id. § 

1182(a)(6)(E)(i). In proceedings before an Immigration 

Judge (“IJ”), Demandstein conceded both grounds and he was 

deemed inadmissible as charged.

Demandstein applied for cancellation of removal under 

INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which permits the 

Attorney General to cancel removal if an inadmissible alien 

meets certain requirements, including a showing that he “has 

been physically present in the United States for a continuous 

period of not less than 10 years immediately preceding the 

date of such application[.]” 8 U.S.C. § 1229b(b)(1)(A). DHS 

moved to disallow Demandstein‟s application on the ground 

that he cannot make this showing. It argued that, because 

Demandstein withdrew an application for admission to the

United States in 1999 when he was refused entry at the 

Canadian border, the continuity of his period of physical 

presence terminated at that time. Consequently, DHS argued, 

Demandstein cannot show ten continuous years of presence 

prior to being served with the Notice to Appear in 2007. 

The IJ granted DHS‟s motion, concluding from the 

evidence presented at an evidentiary hearing on the issue that 

Demandstein “knowingly withdrew his application for 

admission [in 1999] and terminated his period of continuous 

physical presence by doing so.” A.R. at 49. The IJ ordered 

removal to Israel. The BIA dismissed Demandstein‟s appeal. 

It found that his “actions show that the withdrawal of [his] 

application for admission, in lieu of a formal determination of 

admissibility, was made with the understanding that [he] had 

no legitimate expectation that he could legally reenter the 
4

United States and resume his continuous physical presence in 

this country.” A.R. at 4. Consequently, the BIA held that 

Demandstein is ineligible for cancellation of removal. 

Demandstein timely filed a petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a) to 

review the question of Demandstein‟s statutory eligibility for 

cancellation of removal. See Okeke v. Gonzales, 407 F.3d 

585, 588 n.4 (3d Cir. 2005); Mendez-Reyes v. Att‟y Gen., 

428 F.3d 187, 189 (3d Cir. 2005). “Where, as here, the BIA 

issues a decision on the merits and not simply a summary 

affirmance, we review the BIA‟s, not the IJ‟s, decision.” Li 

v. Att‟y Gen., 400 F.3d 157, 162 (3d Cir. 2005). “We review 

the BIA‟s legal determinations de novo, subject to established 

principles of deference.” Wang v. Ashcroft, 368 F.3d 347, 

349 (3d Cir. 2004). “We apply substantial evidence review to 

agency findings of fact, departing from factual findings only 

where a reasonable adjudicator would be compelled to arrive 

at a contrary conclusion.” Mendez-Reyes, 428 F.3d at 191.

Demandstein argues on appeal that he did not 

knowingly withdraw his application for admission to this 

country in 1999, and therefore did not end his period of 

continuous physical presence under § 1229b(b)(1)(A),

because he retained a legitimate expectation that he could 

reenter the United States and resume his period of continuous 

presence. We discern no error in the BIA‟s rejection of this 

argument.

“[A]n alien applying for cancellation of removal must 

establish at least ten years of continuous physical presence in 

the United States under § 1229b(b)(1)(A).” Mendez-Reyes, 

428 F.3d at 191. “Section 1229b(d) sets forth two situations 

in which continuous presence is deemed to have been 

broken.” Id. First, physical presence ends when an alien is 

served a notice to appear or has committed an applicable 

criminal offense. 8 U.S.C. § 1229b(d)(1). Second, an alien 

fails to maintain continuous physical presence if he has 

departed from the United States “for any period in excess of 

90 days or for any periods in the aggregate exceeding 180 
5

days.” Id. § 1229b(d)(2). 

Continuous physical presence also can end for reasons 

other than those set forth in § 1229b(d). For example, the 

BIA has held that continuous presence is broken when an

alien voluntarily departs under threat of removal proceedings. 

See Matter of Romalez-Alcaide, 23 I. & N. Dec. 423, 429 

(B.I.A. 2002). When an “alien leaves with the knowledge 

that he does so in lieu of being placed in proceedings[,] ... 

[t]here is no legitimate expectation by either of the parties 

that an alien could illegally reenter and resume a period of 

continuous physical presence.” Id. This Court has approved

of the reasoning in Romalez-Alcaide as a permissible 

construction of § 1229b. Mendez-Reyes, 428 F.3d at 192. 

Further, we held in Mendez-Reyes that an alien‟s withdrawal 

of an application for admission to the United States, inasmuch 

as it is identical in effect to an acceptance of voluntary 

departure in lieu of removal proceedings, terminates an 

alien‟s continuous physical presence for purposes of § 

1229b(b)(1)(A). Id. at 193.

As the BIA observed, the issue here “is whether 

[Demandstein], upon returning from a [brief] trip to Canada

[in 1999], knowingly withdrew his application for admission 

to the United States in lieu of a formal determination of 

inadmissibility, so that [his] continuous physical presence in 

this country was terminated and he was rendered statutorily 

ineligible for cancellation[.]” A.R. at 3. The IJ held an 

evidentiary hearing on the issue, and Demandstein testified at 

the hearing. The BIA summarized the pertinent facts 

established before the IJ as follows:

It is undisputed that [Demandstein] was refused 

permission to enter the United States at the 

Canadian border [in 1999] and told that his 

[non-immigrant] visa had been cancelled. 

[Demandstein] was advised by an immigration 

attorney to return to Israel and apply for a new 

visa to enter the United States. [Demandstein] 

signed a formal withdrawal of his application 

for admission which explained that he was 
6

doing so in lieu of a formal determination of 

admissibility, although [Demandstein] now 

claims that he did not understand what he was 

signing. [Demandstein] returned to Israel [for 

approximately two months] and obtained a new 

passport under a different name. [Demandstein] 

testified that he applied for a new visa but 

apparently abandoned the application after he 

was told the process would take several months. 

[Demandstein] returned to the United States 

without a valid entry visa after bypassing the 

[Canadian] border checkpoint by walking into 

this country through the woods, without 

inspection.

A.R. at 3-4 (citation to the record and footnote omitted).

At the time he was refused entry at the border 

checkpoint, Demandstein signed a two-page form titled

“Withdrawal of Application for Admission/Consular

Notification” (Form I-275). Demandstein concedes that his 

signature appears on the Form I-275 that DHS submitted into 

evidence before the IJ. This document reflects that

Demandstein‟s visa was cancelled, that he had chosen to 

withdraw his application for admission, and that his 

admissibility was in question because of “Alien smuggling 

1992.” A.R. at 161. Demandstein‟s signature on the Form 

appears directly under the following language:

I understand that my admissibility is questioned 

for the above reasons, which I have read or 

which have been read to me in the English 

language. I request that I be permitted to 

withdraw my application for admission and 

return abroad. I understand that my voluntary 

withdrawal of my application for admission is 

in lieu of a formal determination concerning my 

admissibility ... by an immigration officer.

A.R. at 162. There is no dispute that Demandstein fully 

understands English.
7

The BIA rejected Demandstein‟s argument that he 

unknowingly withdrew the application for admission, 

explaining that the argument “was undermined by 

[Demandstein‟s] conduct in returning to Israel to obtain a new 

passport under a different name, his decision not to pursue a 

new visa, and his evasion of border authorities upon 

reentering the United States.” A.R. at 4. The BIA found that 

Demandstein‟s withdrawal “was made with the understanding 

that [he] had no legitimate expectation that he could legally 

reenter the United States and resume his continuous physical 

presence in this country.” Id. 

The record supports the BIA‟s findings. In addition to 

the undisputed evidence that he signed Form I-275, 

Demandstein‟s actions provide ample support for the finding 

that he knowingly withdrew the application for admission in 

lieu of a proceeding on admissibility, with the consequence 

that he could not expect to resume his continuous physical 

presence after doing so. Demandstein devotes much of his 

argument on this appeal to highlighting portions of the 

administrative record -- mainly in the form of his own 

testimony before the IJ -- which he believes support a finding 

that he did not knowingly withdraw the application for 

admission. His argument fails, however, in light of the 

limited scope of this Court‟s review. In considering the 

BIA‟s determination, we must “uphold the findings of the 

BIA to the extent that they are supported by reasonable, 

substantial and probative evidence on the record considered 

as a whole, and will reverse those findings only if there is 

evidence so compelling that no reasonable factfinder could 

conclude as the BIA did.” Kayembe v. Ashcroft, 334 F.3d 

231, 234 (3d Cir. 2003). Consequently, even accepting that a 

factfinder could conclude that there is some evidence of

record to support Demandstein‟s position, he has not shown 

that the record as a whole compels a finding that his 

withdrawal of the application for admission was unknowing.

Furthermore, our holding in Mendez-Reyes -- that 

withdrawal of an application for admission in lieu of a 

determination of admissibility ends continuous physical 

presence -- controls the legal effect of Demandstein‟s actions. 
8

We observed in Mendez-Reyes that whether an alien is 

granted permission to withdraw an application for admission 

lies within the Attorney General‟s discretion and is not 

merely a unilateral decision on the alien‟s part. 428 F.3d at 

193. Further, the alien in Mendez-Reyes, like Demandstein, 

signed a form acknowledging his voluntary withdrawal of the 

application for admission in lieu of a determination on

admissibility. Id. An alien‟s “acquisition of permission to 

withdraw his application is identical to being granted 

voluntary departure insofar as [he] obtained that permission 

in order to avoid the perils of removal proceedings,” and thus 

it terminates the period of continuous physical presence. Id.

Demandstein argues that his circumstances can be 

distinguished from Mendez-Reyes. He concedes that he 

signed Form I-275, but he claims that the circumstances 

surrounding the signing, including that he was refused 

admission at the border and told to reapply for a visa in Israel 

rather than being paroled into this country, show that he did 

not fully understand the import of withdrawing the

application for admission, and therefore he retained an

expectation that he could reenter and resume his continuous 

physical presence. Demandstein argues that his case should 

be viewed as similar to those in which an alien is turned away

at the border and later reenters without inspection, a scenario 

that would not serve to break the period of continuous 

physical presence. 

Demandstein‟s attempt to evade the precedential force 

of Mendez-Reyes is unpersuasive. Courts have recognized 

that “continuous physical presence is not interrupted if a 

person is merely stopped at the border and turned away 

without any more formality.” Valadez-Munoz v. Holder, 623 

F.3d 1304, 1311 (9th Cir. 2010); see Ascencio-Rodriguez v. 

Holder, 595 F.3d 105, 111 (2d Cir. 2010) (“Although no 

Court of Appeals has rejected the central holding of In re 

Romalez-Alcaide, several have held that it does not apply in 

cases where an alien is simply turned away at the border”). In 

Matter of Avilez-Nava, the BIA held, consistent with circuit 

court precedent, that being turned away at the border without 

formal acceptance of voluntary departure does not break 
9

continuous physical presence. 23 I. & N. Dec. 799, 805 

(B.I.A. 2005). The BIA made clear, however, that “an 

immigration official‟s refusal to admit an alien at a land 

border port of entry will not constitute a break in the alien‟s 

continuous physical presence, unless there is evidence that the 

alien ... was offered and accepted the opportunity to 

withdraw his or her application for admission[.]” Id.

(emphasis added). 

Demandstein was not merely turned away at the 

border. Instead, border officials cancelled the visa that he

presented, noted that his admissibility was in question due to 

a prior arrest, and presented Form I-275. There is no 

evidence that Demandstein could have failed to appreciate the 

language of Form I-275, which, given his signature on the 

document, is sufficient to establish that he voluntarily 

requested permission to withdraw his application and return 

abroad, and that he did so in lieu of a proceeding to determine 

his admissibility. Had Demandstein “allowed immigration

proceedings to be initiated against him in 199[9], his 

continuous physical presence would have been automatically 

terminated under § 1229c(d)(1),” Mendez-Reyes, 428 F.3d at 

193, and thus, rather than face certain interruption of the

continuous-presence period, Demandstein elected to 

withdraw the application for admission and return to Israel to 

apply for a new visa. But “[j]ust as with a voluntary 

departure, neither the government nor [Demandstein] himself 

could have a „legitimate expectation . . . that [he] could 

illegally reenter and resume a period of continuous physical 

presence.‟” Id. (quoting Romalez-Alcaide, 23 I. & N. Dec. at 

429). Demandstein, therefore, cannot “benefit from the fact 

that he managed to illegally reenter the United States before 

the 90-day time frame expired[.]” Id.

III.

In sum, we find no error in the BIA‟s determination 

that Demandstein is unable to satisfy the ten-year continuous 

physical presence requirement of § 1229b(b)(1)(A), and is 

therefore ineligible for the relief of cancellation of removal. 

Accordingly, we will deny the petition for review.