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L Eonel Rosario-Mijangos v. Eric H. Holder

May 16, 2013


The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge:

11-1607-ag (L)

Rosario-Mijangos v. Holder

Argued: October 4, 2012

Before: WALKER, LYNCH, and LOHIER, Circuit Judges.

Petitioner, a citizen of Mexico, seeks review of a Board of Immigration Appeals decision denying his application for cancellation of removal. Prior to commencement of the underlying immigration proceedings, petitioner had two encounters with border patrol agents, each of which resulted in his "voluntary return" to Mexico. We hold that the immigration judge reasonably found that during each of those well-documented encounters, petitioner knowingly and voluntarily conceded his removability, waived his right to appear before an immigration judge, and chose to leave the United States in lieu of more formal proceedings. We further hold that petitioner's return to Mexico under those circumstances severed his continuous physical presence in the United States, rendering him ineligible for cancellation of removal. Finally, we deny petitioner's appeal of the denial of his motion to reopen proceedings.


Leonel Rosario-Mijangos, a citizen of Mexico, seeks review of a Board of Immigration Appeals ("BIA") decision denying his application for cancellation of removal. To establish eligibility for cancellation of removal, Rosario-Mijango must show, among other things, that he maintained at least ten years of "continuous physical presence" in the United States immediately prior to his application. See Ascencio- Rodriguez v. Holder, 595 F.3d 105, 110 (2d Cir. 2010); 8 U.S.C. § 1229b(b)(1)(A). He was able to demonstrate this continuous presence except for two encounters with U.S. Border Patrol in 2007, each of which resulted in what the parties term Rosario-Mijangos's "voluntary return" to Mexico. The question before us is whether those "voluntary returns" were the result of a formal, documented process in which Rosario-Mijangos was found inadmissible, which would sever his continuous physical presence and render him ineligible for cancellation of removal. We hold that they did.


On September 29, 2007, Rosario-Mijangos was served with a notice to appear pursuant to 8 U.S.C. § 1229(a)(1). The notice alleged that he had entered the United States on September 17, 2007 without being admitted or paroled after inspection by an immigration officer, and that he was therefore removable under 8 U.S.C. § 1182(a)(6)(A)(i). In removal proceedings, Rosario-Mijangos admitted these allegations, but he applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). That provision authorizes the Attorney General to "cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States" where, inter alia, the alien "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," id. § 1299b(b)(1), (1)(A). The government argued that Rosario-Mijangos was not eligible for cancellation of removal because of what it deemed a break in the continuity of his physical presence in the United States that occurred in the summer of 2007. An immigration judge ("IJ") conducted a hearing to determine whether Rosario-Mijangos was eligible.

I. Rosario-Mijangos's Testimony

At the hearing, Rosario-Mijangos testified that he had first entered the United states, illegally, in October 1994, when he was 13 years old. He has now, and had in the summer of 2007, a wife and two children, all of whom are United States citizens. On July 22, 2007, Rosario-Mijangos left the United States to visit relatives in Mexico. He attempted to return on August 29, 2007, along with several other individuals, but he and his companions encountered immigration officials one day after crossing the border. The officials brought them to a processing center, where they took Rosario-Mijangos's photograph and fingerprints.

At the hearing, Rosario-Mijangos was presented with two documents, a Form I- 213, a "Record of Deportable/Inadmissible Alien," and a Form I-826, a "Notice of Rights and Request for Disposition." Both forms were dated August 30, 2007. The latter was written in Spanish, which Rosario-Mijangos can read, and it bore his signature. Above the signature, and under the heading, "Request for Disposition," were three paragraphs of text. To the left of each paragraph was a box in which a checkmark might be placed and a space for initials. The first two paragraphs stated, respectively, in Spanish: "I request a hearing before the Immigration Court to determine whether or not I may remain in the United States."; and "I believe that I would face harm if returned to my country. My case will be referred to an immigration court for a hearing." The third paragraph, also in Spanish, read:

I admit that I am in the United States illegally. I don't believe I will face harm if I return to my country. I wa[i]ve my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made for my departure. I understand that I may be held in detention until my departure.

The box to the left of the third paragraph contained an "x"; "L.R.," Rosario- Mijangos's initials, were written in the space next to it; and a circle had been drawn around the checked box and the initials. No such markings appear next to the first two paragraphs. Rosario-Mijangos acknowledged that he had signed the Form I-826, but denied that he had read it before signing. He further testified that the circle was already on the paper when it was shown to him, and he was instructed to put his initials inside it. He said he did not draw the "x."

Rosario-Mijangos also denied that he had provided the information contained on the Form I-213, for example that he had entered the United States to seek employment, or that he was single. He claimed that the officials interviewed his companions before interviewing him, and that they had entered the same information on everyone's forms. According to Rosario-Mijangos, an agent explained only that he was being sent back to Mexico and instructed him to sign the Form I-826.

Rosario-Mijangos testified that he had wanted a hearing before an immigration judge, but he did not ask for one. He explained that one of his companions had requested a hearing, and that he overheard an official telling this companion that he would be deported if he went before a judge. After a few hours in the processing center, the immigration officers took Rosario-Mijangos to the border so that he could cross back into Mexico.

Several days later, on September 2, 2007, Rosario-Mijangos again entered the United States and again encountered immigration officials. He was brought back to the processing center. An officer asked his name, took his photograph and fingerprints, and told him he would be sent back to Mexico. Rosario-Mijangos was presented at the hearing with a second set of documents, again a Form I-213 and a Form I-826, both dated September 4, 2007. Once again, the Form I-213 indicated that Rosario-Mijangos had entered the United States seeking employment, which he denied telling the officers. Also as before, the third paragraph on the Form I-826 was initialed and marked with an "x," and the form bore Rosario-Mijangos's signature. As with the previous Form I-826, Rosario-Mijangos admitted writing the initials but not the "x," which he claimed was on the paper at the time it was handed to him.

Rosario-Mijangos testified that he was told he would be returned to Mexico, and that he was instructed to sign and initial the paper without reading it, that no one informed him he could see an immigration judge, and that he never asked to see one. This time, Rosario-Mijangos spent a day at the processing center before he was returned to the border and crossed back into Mexico. On September 7, 2007, ...

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