Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1550

MARICZA ELIZABETH VALDEZ DE MANSILLA,

Petitioner,

v.

MICHAEL MUKASEY, ATTORNEY GENERAL of the UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Circuit Judge,

Selya, Senior Circuit Judge,

and Siler,* Senior Circuit Judge.

Gerard J. Walsh for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Jeffrey J. Bernstein, Senior Litigation Counsel, and R. Alexander

Goring, Trial Attorney, Department of Justice, for respondent.

February 1, 2008

*Of the Sixth Circuit, sitting by designation.
Pub. L. No. 105-100, 111 Stat. 2193-2201 (Nov. 19, 1997) (as 1

amended by Pub. L. No. 105-139, 111 Stat. 2644-45 (Dec. 2, 1997)).

NACARA allows certain aliens to apply for “special rule”

cancellation of removal proceedings. See, e.g., Cuadra v.

Gonzales, 417 F.3d 947, 948-49 (8th Cir. 2005). To be eligible for

NACARA, Guatemalans such as Valdez de Mansilla must have either (1)

filed an asylum application before April 1, 1990, or (2) have

entered the United States on or before October 1, 1990, and have

registered by December 31, 1991, as a member of the class action in

American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D.

Cal. 1991). 8 C.F.R. §§ 1240.60, 1240.61(a)(1)(2). Valdez de

Mansilla meets these minimum requirements. 

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SILER, Senior Circuit Judge. Petitioner, Maricza

Elizabeth Valdez de Mansilla, a native and citizen of Guatemala,

petitions for review of a Board of Immigration Appeals (“BIA”)

order affirming the immigration judge’s (“IJ”) decision that she

was not eligible for relief under § 203 of the Nicaraguan

Adjustment and Central American Relief Act of 1997 (“NACARA”).1

She argues the IJ erred by denying her a merits hearing to

determine her NACARA eligibility. We deny review for reasons

stated hereafter. 

I.

Valdez de Mansilla has been in the United States multiple

times, the first time between 1985 and 1987. She reentered the

United States in June 1989 and remained through late 1996 or early

1997. During that time, she applied for asylum and filed for

relief under the American Baptist Churches class action. See Am.

Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991).

Before these claims were resolved, she left the United States and
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remained outside the United States for almost one year. She

returned in 1997 and remained until departing for Guatemala in

2000. She returned again on or about August 31, 2000, and was

placed in removal proceedings. She sought “special rule”

cancellation or suspension of removal under NACARA and also applied

for asylum and withholding. In July 2003, she withdrew these

applications after the IJ determined she was ineligible for NACARA

because of her absences from the United States. She departed the

United States in August 2003 and reentered in June 2004 when she

was again placed in removal proceedings. She sought to renew her

NACARA application. 

Her claim was before the IJ in June 2005. At this

hearing, the IJ noted that she had determined in July 2003 that

Valdez de Mansilla was ineligible for NACARA relief because of her

absence from the United States in 1997. Valdez de Mansilla argued

that she was eligible for NACARA because she had a seven-year

continuous presence in the United States from 1997 forward. She

acknowledged she left the United States for more than 180 days in

2003 but argued “that was not a meaningfully interruptive period.”

She stated she had a constitutional right to be heard on the issue

of her NACARA eligibility. After noting Valdez de Mansilla

conceded she had not been in the United States for seven continuous

years, the IJ concluded she could not find Valdez de Mansilla

eligible because she was absent for almost a year in 1997 and she
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was absent for more than 180 days from August 2003 through June

2004. Without opinion, the BIA affirmed the IJ’s decision. 

II.

Where, as here, the BIA summarily affirms the IJ’s

decision, we review the IJ’s decision directly. Stroni v.

Gonzales, 454 F.3d 82, 86-87 (1st Cir. 2006) (citing Sulaiman v.

Gonzales, 429 F.3d 347, 350 (1st Cir. 2005)). We review the IJ’s

findings of fact under the substantial evidence standard, and such

findings shall not be overturned unless the record compels

reversal. Id. at 87 (citing Romilus v. Ashcroft, 385 F.3d 1, 5

(1st Cir. 2004)). We review conclusions of law de novo, “‘with

appropriate deference to the agency’s interpretation of the

underlying statute in accordance with administrative law

principles.’” Id. (quoting Gailus v. INS, 147 F.3d 34, 43 (1st

Cir. 1998)). 

NACARA allows aliens such as Valdez de Mansilla to apply

for “special rule” cancellation of removal proceedings if, among

other things, they have been present in the United States for at

least seven years immediately preceding the date their NACARA

application was filed. See 8 C.F.R. § 1240.66(b)(2). In

interpreting whether an alien has been present for seven years, the

regulations state:

the applicant shall be considered to have failed to

maintain continuous physical presence in the United

States if he or she has departed from the United

States for any period in excess of 90 days or for
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any periods in the aggregate exceeding 180 days.

The applicant must establish that any period of

absence less than 90 days was casual and innocent

and did not meaningfully interrupt the period of

continuous physical presence in the United States.

Id. § 1240.64(b)(2).

Valdez de Mansilla sought to renew her NACARA application

during the removal proceeding initiated in June 2004. But she

conceded she was absent from the United States for almost one year

in 1997 and more than 180 days from August 2003 through January

2004. Thus, substantial evidence supports the finding that she was

not continuously in the United States for seven years immediately

preceding the filing of her application, either when she initially

filed it or when she renewed it during the instant removal

proceedings. See Stroni, 454 F.3d at 87 (citing Romilus, 385 F.3d

at 5). Therefore, the IJ correctly ruled that Valdez de Mansilla

was ineligible for NACARA relief. See 8 C.F.R. §§ 1240.64(b)(2),

1240.66(b)(2). 

On this petition for judicial review, Valdez de Mansilla

argues she was in the United States from June 1989 through late

1996 or early 1997, a continuous period of at least seven years.

However, that fact is irrelevant. She filed for NACARA relief

during the removal proceedings initiated in 2000 and renewed that

application during the instant removal proceedings. She was not in

the United States for a continuous period of at least seven years

immediately preceding the filing of her NACARA application. 
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Accordingly, the IJ did not err in not holding a merits

hearing before concluding that Valdez de Mansilla was ineligible

for NACARA relief. 

III. 

For the forgoing reasons, we affirm the order of the BIA.

Petition denied.