hundred six changes to the law and in that congress has four requirements for an individual who had been continuously physically present in the united states for ten years is a person of good moral character has not been convicted of a crime that renders them admissible removed from the country and can show that it would be an exceptional three to three million usual hardship to a u s citizen spouse parent or child congress said that the service notice to appear to initiate removal proceedings which stopped cruel of continual physical process also the commission of a crime would stop the country in lieu of the him placed in removal proceedings in lieu of facing the threat of deportation proceedings then vanni individual continuous physical presence stops for that person when they depart voluntarily under that circumstance the board said that was consistent with the previous case law dealing with brief casual and innocent departure under the suspension of case law and also it was lopez applied chevron deference to that decision and said that a voluntary departure under threat of removal proceedings breaks continuance of physical presence in this case the individual did not the border and the border has always been considered a different situation involuntary departure from within the country it's more flexible it's less formal and individual border has no government to leave at that point in fact they haven't entered when they're stopped at the border the only departure here was the initial departure when the individual went down to mexico in one thousand nine hundred ninety and that review aid the the actual discretionary grant or denial of cancellation from you however the court has determined that it can consider the non discretionary eligibility requirements such as the a couple weeks later he comes back again and then he turns up and in this situation what and there must be thousands of people who grow up in a culture where you never get involved with the government if you can help it never enter a public building and they get caught in this situation you know what what is our standard grant a withholding if he's to if it's based on statutory if the immigration judge is saying you do not have ten years to  is a no on discretionary eligibility requirement which the court can review is the legal issue de novo the factual issue it would be an abuse of discretion so is there substantial in the last twenty years because twenty five or thirty years ago we started seeing a few cases where incidental family purpose visits back and forth across the border were just a departure of less than ninety days or departures in the aggregate of less than one hundred eighty days do not well actually it says it's a departure of more than that time then that breaks continuous the order and it's a different statutory special never deals with inspection and admission at the border it's much less formal than it is here i mean sometimes individuals across the desert sometimes you know on the sea sometimes physically at the border the statute gives the inspector the right to allow the individual to withdraw their application for admission and leave or to enter an expedited removal order if the inspector determined step they don't have papers so there can be a formal expedited removal order most of the time there's not a formal there's not a form has if they're caught at after a border within a certain range of the border but then the individual has the burden to show that they had been physically present in the united states for the past two years or they can be treated as an applicant for admission factual finding and second is whether or not in grand involuntary a part was under the threat of being placed in deportation proceedings which is basically a legal question on reviewing the facts in this case it's incredible the petitioner would argue that his continued physical presence was not interrupted after the alien left in december one thousand nine hundred ninety nine and then tried to reenter the united states on four separate occasions in trying to establish that he in fact was a united states citizen he was detained for four hours fingerprinted photographed or placed in a computer system and then returned to mexico and he was given the opportunity would draw his application of the missions clearly and i'm glad situation itself he was granted voluntary departure and was clearly under the threat of being placed in deportation proceedings we if you agree to go back to mexico we will not please you in immigration proceedings and that's a very important let me interrupt you for a second i'm going to that thought that's a very important factor in this case because at the time that the tissue outside the united states in fact that the board and this court decided to let makes inherently a lot of sense because if the alien was able to crew time outside of the united states after accepting agreement it would  you read it the other way he would deal to leave united states approval or time and stick back in the border and not get caught and second i would also argue your honor as a matter of law regarding the issue whether or not proceedings the question is not a threat of deportation your honor the issues of threat of being placed in a room for ceilings which stops the cruel of continu fingerprinted photographed how can you not how can you assume that this person doesn't know that what he knows he's illegally entering the country you know these are the ramifications he's been arrested proceedings the implicit agreement either you take it or you placed in proceedings we return to mexico and i would argue that also important factor is that if this mailing had agreed to take we placed in proceedings i guess what i have a terrible coming up with the line maybe it's because in the big picture we've got different really different interest being served and we have the statute that makes clear that being outside the country and one point supreme court talked and very bright line term here outside the country that's the end of the continuous visible progress you're on and the law has changed and so now we have this reversed safe harbor where you've got a flight beyond which the absence of too long when i workflows to the ninety days or the hundred hundred eighty dakota lays based on on the record we have here so from the perspective of the time the proceedings actually began against him he had his ten years and the duration of his absence was not significant enough to prevent that from being continuous physical presence now we have this other factor which is the i guess protection of the border factor is almost like a kid's game where you're playing tag you're out of the country if you can get back in successfully then it's ok but if you get tagged in the way you can then it's not ok and none of that has an thing to do with the perspective we have years later in terms of whether you're cut off you can avoid the inference that some period of time less than that means you're not cut off and why the issue of whether you are successful in slipping in without being detected or not has anything to do with  but also the board and this court of found that any time times less than that is also the possibility of interrupting continues for physical presence for the cancellation of remov the real issue on i think here is whether or not he was under the threat of being placed in removal proceedings and that's where this increase in agreement comes up at the border or is there any kind any situation where the alien trying to slip back into the country comes into contact with not even border patrol or any official law enforcement type in effect it's bounce texas border you know exercising minus authority which it shouldn't be doing and i'm sure there's all kinds of events going on i do distinctly the minutemen type they don't have any any comparable legal exactness so i take those out but i want to be on the border patrol officer because you can pick up a sheriff's deputy who can arrest there's nothing about the sheriff's deputy from bringing them to the border patrol and having the service proceed thereafter so at that point could it be s sheriff's deputy says ok going back or i'm taking you and does that become under the threat of deportation that you're talking about i would say under the statute no it's already a border patrol that able to deportation proceedings rather than you know you maybe found a portable i mean i think that the term deportations essentially been replaced by the term removal so i understand your reluctance to say that this pain that's grow being placed in removal proceedings and that's the important point because if you are placed in the proceedings you are ability to recruit continue physical presence united states has been shut off right there and then so that's one you know and if if we were degree otherwise then that becomes meaningless that's actually it also becomes meaningless with the whole notion of the concept of the deal the deal is to remove the aliens quickly it's possible to get one more could believe the implicit agreement had been made between the government and easily and that that's where they think you have the ability to understand that there might be an implicit agreement going on at the border states voluntary departure does not apply so in fact the attorney general is is not as a general rule authorized to grant voluntary departure as a as a matter of law at the border and the a t f at the border does not have an option or a right to be placed in removal proceedings and the attorney general is if you turn in general wants to refuse the inspectors want to use aliens to enter is because then if we go back to the statutory section that deals with inspection and admission at the border and that is eight u s c section twelve twenty five includes an alien brought to the united states that had been interdicted in open water so if they were caught at sea so far within this inspection and its mission this border area where the attorney was no evidence that there had been an agreement to accept voluntary departure and that the continuous physical presence has not been broken in that case it's just the final points but actually the immigration judge in this case did not find that th person had been granted voluntary departure the immigration judge actually in his decision characterized it as a turnaround at the border so he thought actually didn't find it as a voluntary