C ite as 26 I&N Dec. 674 (BIA 2015 ) Interim Decision #3850

674 

### Matter of J uan M anuel 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 w ho 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 forma lity 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 pretermitt ed t h e 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)

, find ing 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 appeal ed from that

decision. T he appeal will be sustain ed and the record will be remand ed to

the Immigration Judge for further proceedings.



### I. FACTUAL AND PROCEDURAL HISTORY

T he 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 n otice to a ppear on May 7, 2012 , charging that he is an alien who isC ite as 26 I&N Dec. 674 (BIA 2015 ) Interim Decision #3850

675 present in the United States without having been admitted or paroled

. T he respondent does not dispute that he is removable as charged. In proceedings b efore the Immigration Judge

, t he respondent submitt ed

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

the United States on January 22, 1999. T he Department of Homeland Security (“DHS”) offer ed into evidence a US

- VISIT report indicat ing that

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

times at or near the border and was re turned to Mexico

. During each of

th os e encounters

, the respondent was photographed in a G overnment facility , but i t is not clear wheth er he was fingerprinted

. Although the respondent does not dispute the contents of the US

- VISIT

report , he state s that since his arrival in the United States

, he made only two depart ures

, one of w hi ch was on December 7, 2002

. Because the respondent was served with a n otice to a ppear on May 7, 2012

, this departure occurred within the 10

- year period during which he was required

to show continuous physical presence. T he Immigration Judge found that

the r espondent ’s voluntary return at that time broke his physical presence and concluded that he i s therefore ineligible for cancellation of removal

. The respondent con tends 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. H e 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 w hether documentation showing that the respondent was returned to Mexico at the border after being photographed and possibly fingerprinted, but not indicatin g 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 thatC ite as 26 I&N Dec. 674 (BIA 2015 ) Interim Decision #3850

676 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 presenc e , unless there is

ev idence that the alien was formall y 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 n o t made subject to an order of expedited removal

. N or was t he 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 Av ilez , 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 (F orm 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 determin ed in our companion case today that it is insufficient to meet the requirements of Matter of Avilez without any evi dence 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 S ome departure s will break physical presence even if the alien has not been advis ed of

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

more than the alien merely being photographed and fingerprinted. For example, i n 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 cit ed

Ascencio

- Rodriguez v. Holder , 595 F.3d 105, 113

− 14 (2d Cir. 2010)

, where the court
observ ed 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 . . .)C ite as 26 I&N Dec. 674 (BIA 2015 ) Interim Decision #3850

677 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 h is application was taken

. T he record is

therefore unclear whether the respondent ’s 200 2 encounter occurred at

a port of entry and whether he was fingerprinted

. 2 I t also does not indicate

whe th er h e was advised of the right to appear before an Immigration Judge during the voluntary return process at or near the border. 3 Therefore, on de novo review, we disagree with the Immigration Judge’s conclusion that the

evidence established that the respondent’s 2002 voluntary r eturn constituted

a break in his continuous physical presence that prevent ed him from

accrui ng the 10

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

W e will accordingly remand the record for further proceedings on the respondent’s application f or 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 c ongressional 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 3 53 ( 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, t he analysis in that case applies

, regardless of whether an alien’s departure

wa s pursua nt to an encounter at or near the border

, and whether it wa s 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 depa rture 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 encounte r 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 prio r removal

order under se ction 241(a)(5) of the Act, 8 U.S.C. § 12 31 ( 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.C ite as 26 I&N Dec. 674 (BIA 2015 ) Interim Decision #3850

678 O n 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 67 2

. I f 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 . T he parties should be given an opportunity to present add itional evidence and argument in that regard. Finally, we note t he DHS ’s argu m e nt that Congress clear ly 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 s pecifi es 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

an y periods in the aggregate exceeding 180 days.” We are u npersuaded by

this argument , which is not supported by the Act, the r egulations , 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 cit in g 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 w here an alien ha d 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: T he record is remanded to the Immigration Judge for further proceedings consistent with th e foregoing o pinion and for the entry of a new decision.