Petitioner is from Nicaragua. He's been in the United States since 1993. He has no criminal history. So under the Nicaraguan Adjustment and Central American Relief Act, he's entitled to become a permanent resident. We have a special deal for people who came from (then-) Sandinista-controlled Nicaragua. So he files the appropriate petition.
There's only one problem. Petitioner lives in Long Beach. In 2004, he was driving a company truck from Long Beach to San Diego. He had never been to San Diego before, and got confused. He was on the I-5, which is the main interstate from L.A. to San Diego, and was trying to find his exit in San Ysidro, which is on the border with Mexico. He's trying to find the exit, and all of the sudden, time runs out; he's still searching for his exit on the I-5, when all of the sudden a big sign appears: "Mexico". He tries to find a place to turn around before heading into Mexico, but can't find one, and a police officer is telling traffic to keep moving. So, having no alternative, he enters Mexico, and immediately turns around at the next exit to get back to the United States.
The problem, of course, is that he's not a resident of the United States. He tries to explain that he just came from the United States in his company's truck, and is only there on accident. But that doesn't matter; if you don't have a visa and aren't a citizen, we don't let you in. He tries again several days later -- this time using a fake identification -- and that doesn't work either. They detain him, and then move to kick him back to Nicaragua.
But his problems get worse. Sure, he was categorically entitled to permanent residency, and had filed the relevant petition. But a federal regulation says that if you file a pending petition, and then "depart" from the United States without permission, you're deemed to have abandoned that petition. So the IJ holds that he's no longer eligible for relief because he left the U.S, and the BIA affirms. Shouldn't have missed that exit, buddy.
The Ninth Circuit, in a split decision, reverses. Judge Seabright, sitting by designation from Hawaii, writes an opinion (joined by Judge Goodwin) that holds that you haven't really "departed" the United States when you do it by accident and immediately turn around. Judge Rawlinson dissents, arguing, inter alia, that yes, that counts as a departure, and that we should defer to the BIA on this point in any event.
I'll let the competition opinions speak for themselves. Obviously the equities favor the petitioner (at least in my view), and the question is whether the statute permits us to do the right thing. Assuming that his story is accurate, it seems pretty harsh to deport a guy from the country in which he's lived for the past 18 years -- and in which he is entitled to live -- merely because he missed an exit one fateful day.
I'll just add one personal observation. I live in San Diego. There is, in fact, a big sign (at least nowadays) that says "Last Exit in the United States" on the 1-5 as you approach that last exit, as well as a U-Turn lane right before the big "Mexico" sign that gives you one last chance to turn around if you've made a mistake. So you might well think that Lezama-Garcia's story is facially incredible.
But the exact same thing happened to my friend Judybeth Tropp, who lives in San Diego, not that long ago. She's driving along the I-5, heading to Chula Vista to a birthday party with her kids, gets confused, is trying to find her exit, and wham, suddenly she sees the big "Mexico" sign and can't find a way to get over to the U-Turn lane. So there she is, in a minivan with two little kids, in Mexico. Without, obviously, a passport or anything at all about the kids. Desperately hoping that they'll let her back in.
Fortunately, they do. Though I'm not sure they would after the recent heightened security on the border. My only point is that it's quite, quite possible for people to accidentally end up in Mexico if they're driving on the I-5 and looking for an exit near the border. Even if they've graduated from Smith College.
