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Matter of Juan Manuel GARCIA-RAMIREZ, Respondent

Decided October 28, 2015

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary 

departure or return does not break the alien’s continuous physical presence for 

purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration 

and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that 

he or she was informed of and waived the right to such a hearing, regardless of 

whether the encounter occurred at or near the border. Matter of Avilez, 23 I&N Dec. 

799 (BIA 2005), clarified. 

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge 

was fingerprinted and/or photographed before being allowed to voluntarily depart is 

not enough, in itself, to demonstrate a waiver of the right to a hearing or to show 

a process of sufficient formality to break continuous physical presence. Matter of 

Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.

FOR RESPONDENT: George E. Lee, Esquire, Alpharetta, Georgia

FOR THE DEPARTMENT OF HOMELAND SECURITY: Gene P. Hamilton, Assistant 

Chief Counsel

BEFORE: Board Panel: COLE, PAULEY and WENDTLAND, Board Members.

PAULEY, Board Member:

In a decision dated July 15, 2013, an Immigration Judge pretermitted the

respondent’s application for cancellation of removal under section 

240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)

(2012), finding that the respondent could not demonstrate the requisite 

period of continuous physical presence because it was broken by his

voluntary return to Mexico in 2002. The respondent has appealed from that 

decision. The appeal will be sustained and the record will be remanded to 

the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who last entered the 

United States without inspection on an unknown date. He was served with 

a notice to appear on May 7, 2012, charging that he is an alien who is
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present in the United States without having been admitted or paroled. The 

respondent does not dispute that he is removable as charged. 

In proceedings before the Immigration Judge, the respondent submitted 

an application for cancellation of removal, which states that he first entered 

the United States on January 22, 1999. The Department of Homeland 

Security (“DHS”) offered into evidence a US-VISIT report indicating that 

since the time of the respondent’s initial entry, he was apprehended several 

times at or near the border and was returned to Mexico. During each of 

those encounters, the respondent was photographed in a Government 

facility, but it is not clear whether he was fingerprinted.

Although the respondent does not dispute the contents of the US-VISIT 

report, he states that since his arrival in the United States, he made only two 

departures, one of which was on December 7, 2002. Because the 

respondent was served with a notice to appear on May 7, 2012, this 

departure occurred within the 10-year period during which he was required 

to show continuous physical presence. The Immigration Judge found that 

the respondent’s voluntary return at that time broke his physical presence

and concluded that he is therefore ineligible for cancellation of removal.

The respondent contends that his encounter at the border in 2002 should 

not constitute a break in his continuous physical presence because he was 

only briefly detained and returned to Mexico. He asserts that he was picked 

up near the border but was never given any documents informing him of his 

legal rights or an opportunity to appear before an Immigration Judge. 

According to the respondent, he did not knowingly agree to depart the 

United States under the threat of removal proceedings.

II. ISSUE

The issue before us is whether documentation showing that the 

respondent was returned to Mexico at the border after being photographed 

and possibly fingerprinted, but not indicating that he was advised of his 

right to appear before an Immigration Judge, is a “formal, documented 

process” sufficient to break his continuous physical presence for purposes 

of establishing eligibility for cancellation of removal under Matter of 

Avilez, 23 I&N Dec. 799, 805 (BIA 2005).

III. ANALYSIS

Addressing the question whether an alien’s voluntary departure or return 

results in a break of continuous physical presence in Matter of Avilez,

23 I&N Dec. at 805, we held that 
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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 formally excluded or made subject to an order of 

expedited removal, was offered and accepted the opportunity to withdraw his or 

her application for admission, or was subjected to any other formal, documented 

process pursuant to which the alien was determined to be inadmissible to the 

United States.

It is undisputed that the respondent was not made subject to an order of 

expedited removal. Nor was the opportunity to withdraw an application for 

admission offered and accepted. The relevant question before us, then, is 

whether the respondent was subjected to “any other formal, documented 

process” pursuant to which he was found inadmissible. Id. In Avilez, we 

noted that evidence of such a process might include 

testimony or documentary evidence of a legally enforced refusal of admission and 

return such as a Record of Deportable/Inadmissible Alien (Form I-213), a Notice of 

Action-Voluntary Departure (Form I-210), an IDENT printout, affidavits or 

statements of the alien or immigration officials, photographs, fingerprints, or other 

appropriate forms and official records of the DHS. 

Id. at 806 (emphasis added). 

Although the taking of photographs and fingerprints in conjunction with 

a voluntary return may be part of a “formal, documented process,” we 

determined in our companion case today that it is insufficient to meet the 

requirements of Matter of Avilez without any evidence that it was 

associated with a legally enforced refusal of admission and return. Matter 

of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015). Thus, when an alien 

has the right to appear before an Immigration Judge, evidence that 

photographs and fingerprints were taken in conjunction with a voluntary 

departure or return is insufficient to break the alien’s continuous physical 

presence in the absence of evidence that he or she was informed of and 

waived the right to a hearing.

1

 

1

Some departures will break physical presence even if the alien has not been advised of

and waived the right to appear before an Immigration Judge. But such situations involve 

more than the alien merely being photographed and fingerprinted. For example, in 

Matter of Velasquez-Cruz, 26 I&N Dec. 458 (BIA 2014), we concluded that a break in 

continuous physical presence occurred where an alien had departed the United States 

following a criminal conviction for illegal entry. In support of our ruling, we cited

Ascencio-Rodriguez v. Holder, 595 F.3d 105, 113−14 (2d Cir. 2010), where the court

observed that a conviction after a guilty plea to the crime of illegal entry constitutes an 

admission of facts that give rise to inadmissibility and that a departure after such a 

conviction is more akin to a formal removal than to the informal interactions at the border 

(continued . . .)
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As an applicant for cancellation of removal, the respondent bears the 

burden of proving all the requisite facts pertinent to his eligibility. Section 

240(c)(4) of the Act, 8 U.S.C. § 1229a(c)(4) (2012); 8 C.F.R. § 1240.8(d)

(2015). However, no testimony on his application was taken. The record is 

therefore unclear whether the respondent’s 2002 encounter occurred at 

a port of entry and whether he was fingerprinted.

2

 It also does not indicate 

whether he was advised of the right to appear before an Immigration Judge 

during the voluntary return process at or near the border.3Therefore, on de 

novo review, we disagree with the Immigration Judge’s conclusion that the 

evidence established that the respondent’s 2002 voluntary return constituted 

a break in his continuous physical presence that prevented him from 

accruing the 10-year period required by section 240A(b)(1)(A) of the Act. 

We will accordingly remand the record for further proceedings on the 

respondent’s application for cancellation of removal.4 

_____________________________

that we have found insufficient to terminate continuous physical presence. See also 

Zarate v. Holder, 671 F.3d 1132, 1137−38 (9th Cir. 2012). 

Moreover, removal pursuant to an expedited removal order has been found to break 

physical presence for purposes of cancellation of removal because, among other reasons, 

both expedited and formal removals carry a statutory bar to readmission for a specified 

period, which reflects congressional intent “to sever an alien’s ties to this country.” 

Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir. 2007); see also Nunez-Moron 

v. Holder, 702 F.3d 353 (7th Cir. 2012); Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011). 

2 Although the alien in Castrejon-Colino was not apprehended at the border, in our 

view, this distinction would make no difference under the circumstances of this case. 

Accordingly, the analysis in that case applies, regardless of whether an alien’s departure 

was pursuant to an encounter at or near the border, and whether it was referred to as 

a “departure,” “return,” “turnaround,” or “turn back.” 

3 Depending on the date and location of the relevant encounter with immigration 

officials, an alien may or may not have a right to a hearing before an Immigration Judge 

in formal exclusion, deportation, or removal proceedings. Castrejon-Colino observes 

that although aliens who are subject to being placed in expedited removal proceedings do 

not generally have a right to a hearing before an Immigration Judge, the respondent in 

that case was not subject to expedited removal at the time of his departure because it 

occurred before the 2004 expansion of the coverage of expedited removal beyond aliens 

arriving at ports of entry. See Matter of Castrejon-Colino, 26 I&N Dec. at 669 n.2. The 

same appears to be true here because the respondent’s encounter occurred in 2002. It has 

not been argued that his encounter involved any other context in which an alien’s 

procedural rights are limited, such as being subject to reinstatement of a prior removal 

order under section 241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5) (2012). 

4 Although the respondent ultimately bears the burden of proving his continuous 

physical presence, as we noted in Matter of Castrejon-Colino, 26 I&N Dec. at 672 n.5, 

the DHS is in a better position to fill gaps in the evidence and resolve any disputes by 

presenting documentation in its own records to show the formality of the process.
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On remand, the Immigration Judge should take testimony regarding the 

circumstances surrounding the respondent’s 2002 departure. See Matter of 

Castrejon-Colino, 26 I&N Dec. at 672. If the Immigration Judge finds that 

no break in presence occurred to interrupt the respondent’s continuous 

physical presence, she should consider whether the respondent is otherwise 

eligible for and deserving of cancellation of removal. The parties should be 

given an opportunity to present additional evidence and argument in that 

regard.

Finally, we note the DHS’s argument that Congress clearly did not 

envision that any type of departure could be excepted from the continuous 

physical presence requirement of section 240A(b)(1)(A) of the Act, 

notwithstanding the provisions of section 240A(d)(2), which specifies that 

an alien’s continuous physical presence terminates “if the alien has 

departed from the United States for any period in excess of 90 days or for 

any periods in the aggregate exceeding 180 days.” We are unpersuaded by 

this argument, which is not supported by the Act, the regulations, or any 

published circuit court case law of which we are aware. See, e.g., Garcia 

v. Holder, 732 F.3d 308, 312 (4th Cir. 2013) (finding that Congress did not 

intend to eliminate the Board’s discretionary authority to define which 

departures terminate an alien’s presence and citing Matter of Avilez).

In view of our disposition of this case, we need not address the parties’ 

remaining appellate arguments at this time. Accordingly, the respondent’s 

appeal will be sustained and the record will be remanded.

IV. CONCLUSION

We clarify Matter of Avilez and hold that where an alien had the right to 

appear before an Immigration Judge, evidence that photographs and 

fingerprints were taken in conjunction with a voluntary departure or return 

is insufficient to break the alien’s continuous physical presence in the 

absence of evidence that he or she was informed of and waived the right to 

a hearing, regardless of whether the encounter occurred at or near the 

border.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration 

Judge for further proceedings consistent with the foregoing opinion and for 

the entry of a new decision.