IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60338

Summary Calendar

BERNARDO ABIEL GARCIA-CHAVEZ,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A206 251 410

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Bernardo Abiel Garcia-Chavez, a native and citizen of Mexico, petitions 

this court for review of the dismissal by the Board of Immigration Appeals 

(BIA) of his appeal from the Immigration Judge’s (IJ) order denying 

cancellation of removal based on a finding that he was ineligible for such relief. 

The IJ found that Garcia-Chavez was not credible and, in light of a prior 

voluntary departure to Mexico in lieu of deportation, he was ineligible for 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 8, 2015

Lyle W. Cayce

Clerk

 

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No. 14-60338

cancellation of removal because he had not met his burden of establishing ten 

years of continuous physical presence in the United States. The BIA 

determined that the IJ did not clearly err in finding Garcia-Chavez was not 

credible and that he had not established his eligibility for cancellation of 

removal. 

We review the order of the BIA and will consider the underlying decision 

of the IJ to the extent that it influenced the BIA’s decision. Zhu v. Gonzales,

493 F.3d 588, 593 (5th Cir. 2007). To establish eligibility for cancellation of 

removal, an alien must satisfy certain statutory requirements under 8 U.S.C. 

§ 1229b(b). Mireles-Valdez v. Ashcroft, 349 F.3d 213, 214 (5th Cir. 2003). One 

of the requirements is continuous physical presence in the United States for 

the ten-year period immediately preceding the date of the application for 

cancellation of removal. § 1229b(b)(1)(A). An alien’s deportation or voluntary 

departure under threat of immigration proceedings stops the ten-year physical 

presence time period accrual. Mireles-Valdez, 349 F.3d at 214, 217-19.

In addition, we will defer to a credibility determination “unless, from the 

totality of the circumstances, it is plain that no reasonable fact-finder could 

make such an adverse credibility ruling.” Wang v. Holder, 569 F.3d 531, 538 

(5th Cir. 2009) (internal quotation marks and citation omitted). An adverse 

credibility determination must be supported “by specific and cogent reasons 

derived from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

Garcia-Chavez admitted that, after he was detained in 2009, he signed 

certain documents agreeing that he would waive his right to an immigration 

hearing and would voluntarily return to Mexico. However, in the instant 

proceeding, he testified that he did not read these documents before signing 

them and that he was not informed that he was waiving his right to appear 

before an IJ. Garcia-Chavez’s version of events is inconsistent with the 

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No. 14-60338

representations on the signed documents and his stated practices and 

experience as a businessman. Thus, the IJ and BIA’s adverse credibility 

determination was supported “by specific and cogent reasons derived from the 

record.” Zhang, 432 F.3d at 344. Garcia-Chavez has not shown that, under 

“the totality of the circumstances, it is plain that no reasonable fact-finder 

could make such an adverse credibility ruling.” Wang, 569 F.3d at 538.

The substantial evidence standard applies to factual determinations 

concerning an alien’s claim of ten years of continuous presence. GarciaMelendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003). We will not reverse 

the BIA’s decision “unless the petitioner provides evidence so compelling that 

no reasonable fact-finder could conclude against it.” Id. (internal quotation 

marks and citation omitted). Nothing in Garcia-Chavez’s brief or in the record 

compels a finding that he was not granted a voluntary departure in lieu of 

deportation in 2009. In light of the adverse credibility finding, his contrary 

testimony was not “so compelling that no reasonable fact-finder could 

conclude” that the ten-year presence requirement was not interrupted. GarciaMelendez, 351 F.3d at 661. 

To the extent that Garcia-Chavez challenges the IJ’s determination that 

he was ineligible for voluntary departure, we lack jurisdiction to consider his 

arguments because the IJ alternatively declined to exercise discretion to grant 

voluntary departure. See 8 U.S.C. § 1252(a)(2)(B)(i); Sattani v. Holder, 749 

F.3d 368, 373 (5th Cir. 2014).

Accordingly, the petition for review is DENIED in part and DISMISSED 

in part for lack of jurisdiction. Garcia-Chavez’s motion for leave to file an outof-time reply brief is GRANTED.

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