Petitioner Jesus Ascencio-Rodriguez ("Ascencio-Rodriguez" or "petitioner") seeks review of a May 22, 2008 decision by the Board of Immigration Appeals affirming the November 3, 2006 judgment of an Immigration Judge, which denied his application for cancellation of removal but granted his request for voluntary departure. We hold, in a question of first impression in this Circuit, that, for the purposes of cancellation of removal eligibility under 8 U.S.C. § 1229b(b)(1)(A), petitioner's arrest and conviction for illegal entry into the United States and his subsequent departure to Mexico interrupted his period of "continuous physical presence" in the United States. Accordingly, we deny AscencioRodriguez's petition.
The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge
Before: WALKER,*fn2 CABRANES,and WALLACE,*fn3 Circuit Judges.
Petitioner Jesus Ascencio-Rodriguez ("Ascencio-Rodriguez" or "petitioner") seeks review of a May 22, 2008 decision by the Board of Immigration Appeals ("BIA") affirming the November 3, 2006 judgment of an Immigration Judge ("IJ"), which denied petitioner's application for cancellation of removal but granted his request for voluntary departure. Petitioner asserts that the IJ and the BIA erred in concluding that his arrest and conviction for illegal entry into the United States in February 2001 interrupted his "continuous physical presence" in the United States and thereby rendered him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b). Whether a conviction for illegal entry is a "formal, documented process" pursuant to which an alien is determined to be inadmissible, see In re Avilez-Nava, 23 I. & N. Dec. 799, 801 (B.I.A. 2005) (en banc)-and, if so, whether such a process interrupts an alien's continuous physical presence in the United States-are issues of first impression in this Circuit. We conclude that petitioner's conviction and subsequent return to Mexico did interrupt his continual physical presence and therefore the BIA properly concluded that he is ineligible for cancellation of removal.
Petitioner was born in Mexico in 1969 and first came to the United States in April 1989. At some point in June or July of 1994, he was arrested by an immigration officer and "given a document" to leave the country. He contends that he returned to the United States in April 1995. Petitioner returned to Mexico again in 1998 to get married and re-entered the United States shortly thereafter without incident.
Petitioner claims that he next left for Mexico in early February 2001 to visit his ailing mother and thereafter was arrested three times by the Border Patrol when trying to re-enter the United States. The second of these three arrests occurred on February 20, 2001, near Brownsville, Texas. Petitioner admits that in connection with that attempt to re-enter, he paid $2500 for fraudulent documents-including a border crossing card in the name of Raphael Sanchez-Sanchez-that he could show to the Border Patrol. Upon questioning by the Border Patrol, petitioner apparently gave his correct name and was then arrested at the checkpoint.
Petitioner was charged that same day with entering the United States illegally in violation of 8 U.S.C. § 1325(a)(1).*fn4 He appeared before a magistrate judge in the United States District Court for the Southern District of Texas (the "District Court"), and the record shows that he waived his right to counsel and pleaded guilty to illegal entry. Petitioner also signed a separate "Notice of Rights and Request for Disposition" form on that same day. That document advised petitioner that he had the right to a hearing before the Immigration Court or, in the alternative, the right to return to Mexico without a hearing. Petitioner checked the box on that form requesting a hearing before the Immigration Court but a hearing was never conducted. A Notice to Appear was also prepared on February 20, 2001, although it does not appear to have been filed with the Immigration Court and the parties dispute whether it was ever served on Ascencio-Rodriguez.
The record is less than clear with respect to events that followed. Petitioner's judgment of conviction, entered on February 28, 2001, indicates that he was sentenced to 90 days' imprisonment, but the judgment also states that the "execution" of the sentence was suspended and that Ascencio-Rodriguez was "placed on probation without supervision for a period of three (3) years, conditioned on no further violation of federal and/or state laws." J.A. 206. A Record of Deportable/Inadmissible Alien form produced by the government also indicates that on February 20, 2001 petitioner was granted a "Voluntary Return in lieu of prosecution." J.A. 157. According to petitioner's testimony before the IJ, after appearing in court and signing some documents, he was placed on a bus and returned to Mexico on the same day of his arrest.
Petitioner attempted to re-enter the United States on March 5, 2001 but was arrested again by the Border Patrol. He asserts that he attempted to re-enter the United States for a fourth time on April 20, 2001 and successfully evaded the Border Patrol.
On May 19, 2005, the Department of Homeland Security in Vermont issued petitioner a Notice to Appear, in which it charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i)*fn5 as an alien present without being admitted or paroled, and under 8 U.S.C. § 1182(a)(7)(B)(i)(II)*fn6 as a nonimmigrant who was not in possession of a valid visa or border crossing card at the time of application for admission. Petitioner appeared before an IJ three different times in late 2005 and early 2006 and on April 20, 2006, petitioner stated that he would seek "cancellation of removal" under 8 U.S.C. § 1229b(b)(1).*fn7 Petitioner subsequently submitted an application and supporting documents.
On November 3, 2006, petitioner appeared before the IJ for a hearing on the merits of his application for cancellation of removal. The IJ issued an oral opinion that same day, in which he denied petitioner's application for cancellation of removal on the basis that petitioner was statutorily ineligible for cancellation because he had not met his burden of establishing ten years' continuous physical presence in the United States, as required by 8 U.S.C. § 1229b(b)(1)(A).
In connection with his holding, the IJ made two relevant findings. First, after noting that continuous physical presence ends when an alien departs the United States under the threat of initiation of removal proceedings, the IJ found that petitioner departed the United States under the threat of such proceedings at least three times in 2001 and, accordingly, had ended his "physical presence" in the United States within the meaning of § 1229b(b)(1)(A). Second, the IJ found that petitioner's continuous physical presence was interrupted after his ...