PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2259

BALTAZAR OLEA GARCIA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Argued: September 18, 2013 Decided: October 16, 2013

Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

Petition for review denied by published opinion. Judge Motz 

wrote the opinion, in which Judge Wilkinson and Judge Floyd 

joined.

ARGUED: Jeremy Layne McKinney, MCKINNEY PERRY & COALTER, 

Greensboro, North Carolina, for Petitioner. Brendan Paul Hogan, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy 

Assistant Attorney General, Cindy S. Ferrier, Assistant 

Director, Office of Immigration Litigation, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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DIANA GRIBBON MOTZ, Circuit Judge:

In this appeal, Baltazar Olea Garcia challenges an order of 

the Board of Immigration Appeals (“BIA”) denying his application 

for cancellation of removal on the ground that he failed to meet 

the “continuous physical presence” requirement of 8 U.S.C. 

§ 1229b. We deny Garcia’s petition for review.

I.

In 1995, Garcia, a native and citizen of Mexico, entered 

the United States illegally. In 2001, he left this country to 

attend his father’s funeral. When Garcia returned to the United 

States a week later, Immigration and Naturalization Service 

(“INS”) officers detained him at the border and took his 

fingerprints and photograph. According to Garcia, INS officers 

offered him the opportunity to appear before an immigration 

judge, but he declined, opting to return to Mexico voluntarily. 

Several days later, he reentered the United States undetected.

In 2009, the Department of Homeland Security (“DHS”) 

initiated removal proceedings against Garcia. He conceded his 

removability, but filed an application for cancellation of 

removal.

At a 2011 hearing on the merits of his application, Garcia 

testified about his 2001 apprehension at the United StatesMexico border. He remembered being stopped by INS officers, 
3

whom he believed informed him of his right to appear before an 

immigration judge. Garcia testified that “[t]hey told me 

that . . . I could sign [a] voluntary departure deportation 

paper, or if I wanted to, I . . . could have a lawyer to . . . 

see the [immigration] [j]udge.” AR 109. Unable to afford an 

attorney, Garcia chose to return to Mexico voluntarily.

The DHS introduced a US-VISIT report1 indicating that Garcia 

had been fingerprinted and photographed in connection with the 

2001 border stop. The DHS did not offer any departure form 

signed by Garcia, nor did the US-VISIT report indicate whether 

Garcia had signed one. Garcia offered no evidence -–

testimonial or otherwise –- expressly addressing whether he 

signed any documentation.

The immigration judge concluded that Garcia was statutorily 

ineligible for cancellation of removal because he could not show 

that he continuously resided in the United States for the 

preceding ten years. Citing the BIA’s decision in In re 

Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002), the judge held 

 1 The United States Visitor and Immigrant Status Indicator 

Technology Program (“US-VISIT”) is “an integrated, automated 

entry-exit system that records the arrival and departure of 

aliens; verifies aliens’ identities; and authenticates aliens’ 

travel documents through comparison of biometric identifiers.”

United States Visitor and Immigrant Status Indicator Technology 

Program (“US-VISIT”), 69 Fed. Reg. 53,318-01 (Aug. 31, 2004) (to 

be codified at 8 C.F.R. pts. 215, 235, 252). In 2013, the 

Office of Biometric Management (“OBIM”) replaced US-VISIT.
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that an alien’s physical presence terminates if he voluntarily 

departs the country instead of submitting to removal -– at least 

insofar as his departure occurs pursuant to a “formal, 

documented process.” AR 310 (quoting In re Avilez-Nava, 23 I. & 

N. Dec. 799, 805 (BIA 2005)). The immigration judge concluded 

that Garcia’s testimony, coupled with the DHS’s US-VISIT report,

sufficed to show that Garcia had been formally excluded from the 

United States, ending his continuous presence here.

After the BIA affirmed, Garcia noted a timely appeal.

II.

Removable aliens may petition the Attorney General for 

cancellation of removal pursuant to 8 U.S.C. § 1229b (2006). To 

prevail, a petitioner must prove that he has been “physically 

present in the United States for a continuous period of not less 

than 10 years” prior to the filing of removal proceedings. Id.

§ 1229b(b)(1)(A); see also Salem v. Holder, 647 F.3d 111, 116 

(4th Cir. 2011) (alien bears burden of proving eligibility for 

cancellation of removal by preponderance of the evidence). The 

statute sets forth several circumstances that terminate an 

alien’s continuous presence:

(1) Termination of continuous period

For purposes of this section, any period of continuous 

residence or continuous physical presence in the 

United States shall be deemed to end (A) . . . when 
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the alien is served a notice to appear under section 

1229(a) of this title, or (B) when the alien has 

committed an offense referred to in section 1182(a)(2) 

of this title . . . .

(2) Treatment of certain breaks in presence

An alien shall be considered to have failed to 

maintain continuous physical presence in the United 

States under subsections (b)(1) and (b)(2) of this 

section 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.

8 U.S.C. § 1229b(d).

In addition to the conditions specified in the statute, the 

BIA has held that an alien’s continuous physical presence 

terminates when he voluntarily departs the United States under 

threat of removal. Romalez-Alcaide, 23 I. & N. Dec. at 429. 

The BIA reasoned that it would be incongruous for an alien’s 

physical presence to terminate if he were formally deported, but 

for his physical presence to continue if he voluntarily departed 

so as to avoid deportation. Id. at 426-27.

Although an alien’s departure under threat of removal 

renders him ineligible for cancellation of removal, the BIA has 

clarified that an alien’s departure is not disqualifying if INS 

officers simply turn him away at the border. Avilez-Nava, 23 I. 

& N. Dec. at 805. In this circumstance, the INS had not “made 

[the alien] aware of the opportunity for exclusion proceedings,”

and thus his encounter with immigration officials is too 

informal to count as a departure under threat of removal. Id.
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The BIA further explained in Avilez-Nava that to interrupt 

“continuous presence” under 8 U.S.C. § 1229b(d), an alien’s 

departure must exhibit some level of formality, documented by 

some sort of record. Id. at 805-06. Evidence of a formal, 

documented process includes “testimony or documentary evidence,” 

such as voluntary departure forms, affidavits, or “other 

appropriate . . . records.” Id. at 806.

Garcia poses two arguments on appeal. We consider each in 

turn.

III.

Garcia initially contends that the BIA’s decision in 

Romalez-Alcaide conflicts with the unambiguous text of § 1229b. 

When a litigant contests an agency’s interpretation of a 

statute, “we employ the familiar analysis prescribed by Chevron, 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 

U.S. 837 (1984).” William v. Gonzales, 499 F.3d 329, 331 (4th 

Cir. 2007).

Chevron review involves a two-step analysis. First, we 

must assess whether “the statute is silent or ambiguous with 

respect to the specific issue” before us. Chevron, 467 U.S. at 

843. If so, we must determine whether the agency’s construction 

is reasonable. Id. An agency’s reasonable interpretation of a 
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statute will prevail, even if a better construction is possible. 

Id.

Here, section 1229b is silent as to whether an alien’s 

voluntary departure under threat of removal terminates his 

“continuous physical presence” in the country. The statute does 

not define “continuous physical presence,” but merely specifies 

situations in which an alien’s continuous presence “shall be 

deemed to end.” 8 U.S.C. § 1229b(d)(1). The statute provides 

that an alien’s continuous presence terminates when removal 

proceedings commence or when he commits certain kinds of crimes. 

See id. It further specifies that continuous presence 

terminates “if the alien [departs] the United States for any 

period in excess of 90 days or for any period in the aggregate 

exceeding 180 days.” See id. § 1229b(d)(2).

Garcia contends that the latter provision constitutes the 

entire regulation of aliens’ breaks in presence. According to 

Garcia, if an alien departs the country for fewer than 90 days 

(or 180 days in aggregate), his “continuous physical presence”

has not ended. We disagree. Although § 1229b(d)(2) specifies 

that certain breaks in presence render an alien ineligible for 

cancellation of removal, these breaks do not constitute an 

exhaustive list of every circumstance terminating an alien’s 

continuous physical presence. The statute provides that 

“continuous physical presence” terminates “if the alien 
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[departs]” for more than ninety days; it does not provide that 

physical presence terminates if and only if the alien so 

departs. Id. § 1229b(d)(2).

In light of this statutory silence, the BIA’s 

interpretation is reasonable. That the statute renders

departures in excess of ninety days “breaks in presence” does 

not preclude a regulation making certain absences of shorter 

duration also “breaks in presence.” The BIA’s logic in RomalezAlcaide is sound. Section 1229b(d)(1) terminates an alien’s 

continuous physical presence when the DHS files a removal action 

against him. Allowing an alien to evade termination by leaving 

the country voluntarily would create a loophole that would 

frustrate the statutory framework.

Garcia finds it significant that the BIA’s regulation 

predates the statutory language pursuant to which it was 

promulgated. He notes that under a prior version of the 

Immigration and Nationality Act (“INA”), an alien could petition 

for suspension of deportation if he had been continuously 

present in the country for seven years -– “brief, casual, and 

innocent departures” notwithstanding. Id. § 1254 (repealed 

1996). Construing the old text, the BIA held that a voluntary 

departure under threat of deportation was not “brief, casual, 

and innocent,” and thus an alien who so departed was ineligible 

for statutory relief. See Hernandez-Luis v. INS, 869 F.2d 496, 
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498 (9th Cir. 1989). In 1996, Congress amended the INA, 

replacing its “brief, casual, and innocent” language with 

§ 1229b(d)(2)’s quantitative standard. Garcia argues that to 

give effect to this new language, the BIA must be prohibited 

from promulgating regulations identical to those issued under 

the predecessor statute.

We disagree. The BIA’s decision in Romalez-Alcaide is not 

inconsistent with a change in the law. By implementing a 

quantitative standard, Congress cabined the BIA’s authority to 

define which departures by aliens are “brief, casual, and 

innocent.” This shift from a qualitative to a quantitative 

standard, however, does not evince Congress’s intent to 

eliminate the BIA’s discretion altogether. On the contrary, 

section 1229b(d)(2)’s text entirely accords with the BIA’s 

retention of some discretionary authority.

We note that all of our sister circuits to have considered 

the question have found the BIA’s construction permissible. See

Barrera-Quintero v. Holder, 699 F.3d 1239, 1245 (10th Cir. 

2012); Vasquez v. Holder, 635 F.3d 563, 570 (1st Cir. 2011); 

Ascencio-Rodriguez v. Holder, 595 F.3d 105, 112-13 (2d Cir. 

2010); Mendez-Reyes v. Attorney Gen., 428 F.3d 187, 191-92 (3d 

Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th 

Cir. 2004); Palomino v. Ashcroft, 354 F.3d 942, 944-45 (8th Cir. 

2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217-18 (5th 
10

Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972-73 (9th 

Cir. 2003) (per curiam). Like our sister circuits, we uphold 

the BIA’s interpretation of § 1229b.

IV.

Alternatively, Garcia argues that even if Romalez-Alcaide

controls, the BIA erred in applying its holding to the facts of 

his case. We review BIA decisions regarding an alien’s 

eligibility for cancellation of removal –- including 

determinations of his “continuous physical presence” –- for 

substantial evidence. See Ramos v. Holder, 660 F.3d 200, 203 

(4th Cir. 2011). To reverse, we must find that the evidence 

before the BIA “was so compelling that no reasonable factfinder 

could fail to find” eligibility for relief. INS v. EliasZacarias, 502 U.S. 478, 483-84 (1992); Elliott v. Adm’r, Animal 

& Plant Health Inspection Serv., 990 F.2d 140, 144 (4th Cir. 

1993).

As announced in Avilez-Nava, the BIA regards an alien’s 

departure as severing physical presence in the country only when 

the alien departs pursuant to a “formal, documented process.” 

23 I. & N. Dec. at 805-06.2

 In this case, the BIA reasoned that 

 2 This court has yet to address whether a formal, documented 

process is necessary to sever an alien’s continuous presence in 

the United States for purposes of cancellation of removal. 

(Continued)
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Garcia’s testimony, coupled with a US-VISIT report, established 

that he received a “formal, documented process.” AR 3. Garcia 

claims that this evidence was insufficient to establish his 

formal documented departure, rendering his return to Mexico 

ineffective in terminating his continuous physical presence 

here.

The argument fails. Garcia’s own testimony demonstrated

the formality of the process he received. He testified that 

when the INS detained him, officers informed him of his 

inadmissibility to the United States. Further, he testified 

that officers told him that he could return to Mexico 

voluntarily, or if he desired, a judge could determine his 

eligibility to enter the country. Specifically, Garcia 

testified: “They told me that . . . I could sign [a] voluntary 

departure deportation paper, or if I wanted to, I . . . could 

have a lawyer to . . . see the [immigration] [j]udge.” AR 109. 

Accordingly, Garcia’s situation differs from that of the alien 

involved in Avilez-Nava. Garcia was “made aware of the

opportunity for exclusion proceedings” and understood that he 

could avail himself of procedures to determine his eligibility 

 

Because the Government does not suggest that the BIA could deny 

Garcia’s application absent a formal process, we assume it is 

necessary to the BIA’s disposition.
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for entry. Cf. Avilez-Nava, 23 I. & N. Dec. at 805. We are not 

faced with an alien merely “turned away” at the border. See id.

Moreover, Garcia’s process was documented. The DHS 

introduced a US-VISIT report, which indicated that Garcia was 

stopped at the border and engaged with INS officers. To be 

sure, the report did not indicate the manner by which Garcia 

departed the country or what was said to him before he left. 

But it did state the date and time of Garcia’s apprehension and 

showed that INS officers fingerprinted and photographed him. We 

cannot conclude that the BIA erred in finding that this 

document, together with Garcia’s testimony, showed that Garcia 

departed the United States pursuant to a “formal, documented 

process.”

Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005), on which 

Garcia relies, is not to the contrary. There, the Ninth Circuit 

held that a record establishing the fact of an alien’s 

fingerprinting did not establish the fact of his formal 

departure. Id. at 1002. But in that case, the alien offered no 

testimony regarding the level of formality by which he departed 

the country. Though officers detained him and took his 

fingerprints, the interaction could have preceded either a 

formal or an informal departure. Here, Garcia testified to his 

receipt of a formal process. The US-VISIT report served only to 
13

memorialize an encounter, the particulars of which were

established by the alien’s own testimony.

The BIA’s analysis and our conclusion comport with the 

burden-shifting standard of the INA. As an applicant for 

cancellation of removal, Garcia bore the burden of proving that 

he was eligible for relief. Salem, 647 F.3d at 116. To 

prevail, he had to show that he was not subject to a documented 

process by which he left the country. On this point, Garcia’s 

testimony was unclear. He did not expressly state whether he 

signed any documents –- or failed to sign any documents –-

leaving the BIA to guess whether he was eligible for relief. 

Our precedent counsels the BIA to resolve such ambiguities 

against Garcia. Id. at 120 (“where . . . the relevant evidence 

. . . is in equipoise, a petitioner has not satisfied his burden 

to prove eligibility for relief from removal.”). In accord with 

our directives, the BIA correctly rejected Garcia’s application 

for cancellation of removal.

V.

For the reasons stated above, Garcia’s petition for review 

is

DENIED.