United States Court of Appeals

For the Eighth Circuit

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No. 16-1623

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Gabino Rodriguez-Labato

lllllllllllllllllllllPetitioner

v.

Jefferson B. Sessions, III, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: March 7, 2017

 Filed: August 21, 2017

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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

Gabino Rodriguez-Labato (Petitioner) petitions for review of a decision by the

Board of Immigration Appeals (the Board) dismissing his appeal from the

immigration judge’s (IJ) denial of his application for cancellation of removal of a

nonpermanent resident alien under 8 U.S.C. § 1229b(b). He argues that the Board

erred in concluding that he voluntarily departed the United States under threat of
deportation, thus breaking the required ten-year period of continuous residence. We

deny the petition.

On or about August 13, 2009, the Department of Homeland Security (DHS)

filed a Notice to Appear (NTA) for Petitioner, a native and citizen of Mexico. 

Petitioner was incarcerated in Decorah, Iowa, at that time, awaiting trial for assault

with intent to inflict damage. The NTA alleged that Petitioner had entered the United

States on April 1, 2001, after having voluntarily departed on six occasions. It alleged

that Petitioner was removable as an alien present in the United States without being

admitted or paroled. 8 U.S.C. § 1182(a)(6)(A)(i). Appearing before the IJ on March

29, 2010, Petitioner denied the date of entry alleged in the NTA, admitted to the

remaining factual allegations therein, and conceded removability.

On May 5, 2010, Petitioner filed an application for cancellation of removal

under 8 U.S.C. § 1229b(b). DHS moved to pretermit the application for cancellation

of removal, arguing that Petitioner had voluntarily departed the United States under

threat of deportation on March 23, 2001, and thus had not been physically present for

a continuous ten-year period immediately preceding his service with an NTA, as

required by § 1229b(b)(1)(A) and 1229b(d)(1).

DHS submitted Form I-826, entitled “Notice of Rights and Request for

Disposition,” signed by Petitioner and dated March 23, 2001. The form was written

in Spanish and wassigned by an immigration officer, who certified that Petitioner had

read the notice and that it was read to him in Spanish. The English translation of the

form stated, under the heading “Notice of Rights”:

You have been arrested because immigration officers believe that you

are illegally in the United States. You have the right to a hearing before

the Immigration Court to determine whether you may remain in the

United States. If you request a hearing, you may be detained in custody

or you may be eligible to be released on bond, until your hearing date. 

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In the alternative, you may request to return to your country as soon as

possible, without a hearing.

Under the heading “Request for Disposition,” the form offered three options:

[1] I request a hearing before the Immigration Court to determine

whether or not I may remain in the United States.

[2] I believe I face harm if I return to my country. My case will be

referred to the Immigration Court for a hearing.

[3] I admit that I am in the United States illegally, and I believe I do not

face harm if I return to my country. I give up my right to a hearing

before the Immigration Court. I wish to return to my country as soon as

arrangements can be made to effect my departure. I understand that I

may be held in detention until my departure.

Petitioner selected the third option. DHS records provided additional details

regarding this encounter, including that Petitioner was apprehended, detained,

photographed, fingerprinted, and checked against an identification database, and that

he voluntarily returned to Mexico.

At a February 27, 2014, hearing before the IJ, Petitioner testified that he had

entered the United States in June of 1999. He acknowledged that he signed the Form

I-826 on March 23, 2001, and that he understood that the form related to his

voluntary departure from the United States. He stated, however, that the immigration

officer did not explain that Petitioner gave up his right to an immigration hearing by

signing the form; how voluntary departure would work; the consequences of violating

the voluntary departure, including a possible civil monetary penalty and the inability

to request cancellation of removal or adjustment to permanent resident status for a

period of up to ten years; or that a voluntary departure would break his continuous

presence in the United States. Petitioner testified on cross-examination that he was

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22 years old on March 23, 2001; that on previous occasions he had been apprehended

by the Border Patrol and returned to Mexico, including one that had occurred three

days earlier; that he never signed a Form I-826 on any of these previous occasions;

that he was able to read Spanish; that the Form I-826 he signed was written in

Spanish, the officers he spoke to spoke Spanish, and he had no problems

communicating with the officers; that he was not free to leave within the United

States between the time of his apprehension and his return to Mexico; and that he had

previously been convicted of illegal entry into the United States by a federal district

court, for which he could have been sentenced to imprisonment but was instead

returned to Mexico.

The IJ granted DHS’s motion to pretermit on May 7, 2014, finding that

Petitioner’s return to Mexico on March 23, 2001, was a voluntary departure “under

threat of deportation,” which broke his continuous presence in the United States. The

IJ reasoned that Petitioner’s Form I-826 selection to voluntarily leave the United

States in lieu of facing formal deportation proceedings showed that he had departed

under threat of deportation. That Petitioner was detained, photographed,

fingerprinted, and checked against a database prior to his March 23, 2001, voluntary

departure also led the IJ to conclude that he had departed under threat of deportation. 

The Board dismissed Petitioner’s appeal, adopting and affirming the IJ’s decision. 

In addition to adopting the IJ’s reasoning, the Board also rejected Petitioner’s claim

that he had not received the necessary warningsfor a voluntary departure, stating that

“the respondent did not receive a formal grant of voluntary departure, rather, he was

permitted to return to Mexico.”

“Although the decision to grant cancellation of removal is a discretionary act

by the Attorney General that we may not review, we may consider the predicate legal

question whether the IJ properly applied the law to the facts in determining an

individual’s eligibility to be considered for the relief.” Reyes-Vasquez v. Ashcroft,

395 F.3d 903, 906 (8th Cir. 2005) (citations omitted). “In doing so, we give

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substantial deference to the agency’s interpretation of immigration statutes.” Id.

“Because the Board affirmed the decision of the immigration judge based on a

clear-error standard of review for findings of fact, but also added reasoning of its

own, we review the two decisions together.” Goswell-Renner v. Holder, 762 F.3d

696, 699 (8th Cir. 2014). “The administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” Id. 

(citing 8 U.S.C. § 1252(b)(4)(B)).

To be eligible for cancellation of removal under 8 U.S.C. § 1229b(b), an alien

must show, among other elements, that he “has been physically present in the United

States for a continuous period of not less than 10 years immediately preceding the

date of such application.” This continuous period is deemed to end when the alien

is served an NTA. Id. § 1229b(d)(1). Because Petitioner was served an NTA on

August 13, 2009, he was required to show that he was continuously present in the

United States since August 13, 1999. 

An alien’s continuous presence in this country is broken “when an alien

voluntarily departs under threat of deportation.” Reyes-Vasquez, 395 F.3d at 907

(quoting Palomino v. Ashcroft, 354 F.3d 942, 944 (8th Cir. 2004)). “When an alien

is legally permitted to depart voluntarily, he should ‘leave[ ] with the knowledge that

he does so in lieu of being placed in proceedings’ and therefore has no legitimate

expectation that he may reenter and resume continuous presence.” Id. (quoting In re

Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (2002) (en banc)). “[T]he record must

show some evidence that the threat of deportation was expressed by immigration

officials and understood by the alien. It is not sufficient that an alien was simply

turned back at the border unless there was an express threat of deportation or

removal.” Ortiz-Cornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005) (citation

omitted). 

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We agree with the Board and the IJ that Petitioner departed under threat of

deportation on March 23, 2001. His Form I-826 selection indicatesthat he was aware

of the threat that he would be removed and of his right to removal proceedings, and

that he elected to return to Mexico instead of exercising that right. Moreover,

although the fact that he was detained, photographed, fingerprinted, and checked

against a database is not by itself sufficient to show a voluntary departure under threat

of deportation, it isrelevant to show that Petitioner underwent a “formal, documented

process.” In re Castrejon-Colino, 26 I. & N. Dec. 667, 670-71 (2015) (quoting In re

Avilez, 23 I. & N. Dec. 799, 805-06 (2005)). Given these circumstances, the Board

and the IJ did not err in concluding that Petitioner departed under threat of

deportation.

Petitioner contends that because he did not receive all of the necessary

warnings for a voluntary departure and thus did not understand the legal

consequences of voluntary departure under threat of deportation, his departure did not

break his continuous presence in the United States. Immigration officials are

authorized to permit an alien to voluntarily depart in lieu of facing removal

proceedings or prior to the proceedings’ completion. 8 U.S.C. § 1229c(a). Officials

may also allow voluntary departure at the conclusion of the proceedings if certain

conditions are met. Id. § 1229c(b). An alien who is permitted to voluntarily depart

and failsto do so within the specified time period issubject to a civil penalty between

$1,000 and $5,000 and is ineligible to receive several forms of relief for a period of

ten years. Id. § 1229c(d)(1). A voluntary departure order must inform the alien of

these penalties. Id. § 1229c(d)(3); 8 C.F.R. § 240.25(b). A decision regarding

voluntary departure must be communicated on a Form I-210 and may not be granted

unless the alien requests the departure and agrees to its terms and conditions. 

8 C.F.R. § 240.25(c). 

1

The same requirements were in effect when Petitioner departed the United 1

States on March 23, 2001. See 8 U.S.C. § 1229c (2001); 8 C.F.R. § 240.25 (2001).

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As stated earlier, the Board dismissed this claim because Petitioner “did not

receive a formal grant of voluntary departure” but was instead “permitted to return

to Mexico.” Similarly,the government argues that Petitioner’s “voluntary return does

not emanate fromthe same regulatory orstatutory scheme” described above. Resp’t’s

Br. 23-24. The government contends that “[v]oluntary departure under [the

regulatory scheme], which requires certain warnings by the agency, is reserved for

aliens placed in removal proceedings under . . . 8 U.S.C. § 1229a,” and that because

Petitioner “waived the opportunity to be placed in removal proceedingsso asto return

to Mexico,” those warnings were not required in this case. Id. at 24.

We reject the government’s suggestion that the warning requirement set forth

in 8 C.F.R. § 240.25 is reserved for aliens placed in removal proceedings under

8 U.S.C. § 1229a. Section 1229c(a) authorizesthe grant of voluntary departure either

prior to the conclusion of removal proceedings under § 1229a or in lieu of such

proceedings. The requirement under 8 C.F.R. § 240.25 to inform an alien of the

conditions of voluntary departure and the penalties for any breach applies to any grant

of voluntary departure under 8 U.S.C. § 1229c(a) and thus applies when the alien

waives removal proceedings and decides to depart voluntarily.

Nonetheless, we conclude that the failure to satisfy the warning requirement

does not preclude a finding of a voluntary departure under threat of deportation

sufficient to break the ten-year period of continuous presence required to be eligible

for cancellation of removal under 8 U.S.C. § 1229b(b). As earlier described, our

cases and the Board’s have held that an alien must depart under “an expressed and

understood threat of deportation,” and “with the knowledge that he does so in lieu of

being placed in proceedings” in order to break continuous presence. Reyes-Vasquez,

395 F.3d at 907 (quoting In re Romalez-Alcaide, 23 I. & N. Dec. at 429); see also

Ortiz-Cornejo, 400 F.3d at 612 (“[T]he record must show some evidence that the

threat of deportation was expressed by immigration officials and understood by the

alien. It is not sufficient that an alien was simply turned back at the border unless

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there was an express threat of deportation or removal.” (citation omitted)). Had

Petitioner received the warnings set forth in 8 C.F.R. § 240.25, they would have

amply demonstrated that Petitioner departed under a threat of deportation. See

Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th Cir. 2004) (reasoning that the

“elaborate conditions” set forth in 8 C.F.R. § 240.25 demonstrate a threat of

deportation). For the reasons discussed earlier, however, we conclude that even

without receiving those warnings, Petitioner voluntarily departed the country under

a threat of deportation, thus breaking his continuous presence here.

The petition for review is denied.

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