FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELISNED CARINE CORROBARRAGAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 08-74697

Agency No.

A200-097-291

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 14, 2013*

San Francisco, California

Filed June 10, 2013

Before: J. Clifford Wallace, M. Margaret McKeown,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge McKeown

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 CORRO-BARRAGAN V. HOLDER

SUMMARY**

Immigration

The panel denied Elisned Corro-Barragan’s petition for

review of the Board of Immigration Appeals’ decision finding

her statutorily ineligible for voluntary departure for failure to

establish that she was in the United States for one year before

being served with a Notice to Appear.

The panel held that the Real ID Act restored appellate

jurisdiction over constitutional claims or questions of law in

challenges to denials of voluntary departure under 8 U.S.C.

§ 1229c. As a matter of first impression, the panel interpreted

the meaning of “physically present” in § 1229c(b) to require

uninterrupted physical presence in the United States for one

year for an alien to be eligible for voluntary departure at the

conclusion of removal proceedings. 

COUNSEL

Helen B. Zebèl, Law Office of Helen B. Zebèl, San

Francisco, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, John

C. Cunningham, Senior Litigation Counsel, and Samia

Naseem, Office of Immigration Litigation, United States

Department of Justice, Washington, D.C., for Respondent.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CORRO-BARRAGAN V. HOLDER 3

OPINION

McKEOWN, Circuit Judge:

This petition raises a matter of first impression in the

Ninth Circuit regarding the interpretation of “physically

present” in the voluntary departure provision of the

Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1229c(b)(1)(A). We interpret physically present in this

provision as requiring uninterrupted presence in the United

States for at least one year and deny the petition for failure to

meet this statutory requirement.

BACKGROUND

Elisned Carine Corro-Barragan (“Corro”) is a native and

citizen of Mexico who lives with her three U.S. citizen

children in Napa, California. She maintains that she first

entered the United States in June 1991 without inspection and

resided here continuously aside from two brief trips to

Mexico. On January 6, 2006, Corro arrived in the United

States without inspection near Otay Mesa, California. That

same day, the Department of Homeland Security served her

with a Notice to Appear, charging her as removable from the

United States under 8 U.S.C. § 1182(a)(6)(A)(i) of the INA. 

In September 2007, Corro filed an application for

cancellation of removal.

The Immigration Judge (“IJ”) denied Corro’s application

for cancellation of removal and her request for voluntary

departure. With respect to cancellation of removal, the IJ

found that Corro met the requirements of continuous physical

presence and good moral character under 8 U.S.C. § 1229b,

but determined that she failed to meet the showing of
4 CORRO-BARRAGAN V. HOLDER

“exceptional and extremely unusual hardship” as required by

the statute. With respect to voluntary departure, the IJ held

that Corro failed to meet the physical presence requirement

of § 1229c(b)(1)(A).1 The IJ reasoned that, in contrast to

§ 1229b(d)(2) which provides that brief departures from the

United States do not interrupt the ten-year period of

continuous physical presence required for cancellation of

removal, § 1229c(b)(1)(A) has no exceptions for departures

during the one-year period of physical presence required for

voluntary departure.

 

1

 Section 1229c(b)(1) provides:

The Attorney General may permit an alien

voluntarily to depart the United States at the alien’s

own expense if, at the conclusion of a proceeding under

section 1229a of this title, the immigration judge enters

an order granting voluntary departure in lieu ofremoval

and finds that--

(A) the alien has been physically present in the

United States for a period of at least one year

immediately preceding the date the notice to appear

was served under section 1229(a) of this title;

(B) the alien is, and has been, a person of good

moral character for at least 5 years immediately

preceding the alien’s application for voluntary

departure;

(C) the alien is not deportable under section

1227(a)(2)(A)(iii) or section 1227(a)(4) ofthistitle; and

(D) the alien has established by clear and

convincing evidence that the alien has the means to

depart the United States and intends to do so.
CORRO-BARRAGAN V. HOLDER 5

The Board of Immigration Appeals (“BIA”) dismissed

Corro’s appeal, denying all relief. The BIA concluded that

the IJ correctly determined that Corro failed to demonstrate

that exceptional and extremelyunusual hardship would result

for her children and saw “no clear error” in the IJ’s reasoning

denying cancellation of removal.

Regarding the IJ’s denial of Corro’s request for voluntary

departure, the BIA held that Corro “illustrated no error in [the

IJ’s] conclusion that [Corro was] statutorily ineligible for

such relief as she did not establish that she ha[d] been in the

United States for at least 1 year before being served with the

Notice to Appear.” In addition, the BIA noted that Corro

“provided no case law or other legal authority suggesting that

an Immigration Judge should be able to disregard the

statutory requirements for a form of relief based upon his

discretion.” This petition for review followed.

ANALYSIS

I. JURISDICTION

As a threshold matter, we address jurisdiction in light of

the changing landscape of appellate jurisdiction over

immigration matters. Two provisions of the INA,

§ 1252(a)(2)(B)(i) and § 1229c(f), have been read to prohibit

judicial review of denials of voluntary departure. This

petition raises a question of statutory interpretation regarding

the meaning of “physically present” in § 1229c(b). Because

the Real ID Act of 2005 restored appellate jurisdiction over

questions of law in denials of discretionary relief, including
6 CORRO-BARRAGAN V. HOLDER

voluntary departure under § 1229c, we have jurisdiction to

consider Corro’s petition. See 8 U.S.C. § 1252(a)(2)(D).2

In Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011), we

considered whether § 1252(a)(2)(B)(i) removed our

jurisdiction to review a denial of voluntary departure.3 The

IJ denied the petition on two alternate grounds—a nondiscretionary finding of statutory ineligibility and denial “as

a matter of discretion because of [petitioner’s] firearm

conviction.” Id. Because review was “limited to the ground

adopted by the BIA,” and “because the BIA affirmed based

on the IJ’s discretionary denial,” we did not have jurisdiction

to review the denial of voluntary departure. Id. (citing

§ 1252(a)(2)(B)(i)); see also Montero-Martinez v. Ashcroft,

277 F.3d 1137, 1144 (9th Cir. 2002) (concluding that

§ 1252(a)(2)(B)(i) “eliminates jurisdiction only over

decisions by the BIA that involve the exercise of discretion”). 

In contrast, here the BIA’s denial of relief was not based on

discretion but on a question of law—the determination that

Corro was not statutorily eligible for voluntary departure

based on a legal interpretation of “physically present”

under § 1229c(b).

2 The relevant portion of the INA provides that “[n]othing in

subparagraph (B) [which precludes judicial review of denials of

discretionary relief under § 1229c and other provisions], or any other

provision of this chapter (other than this section) which limits or

eliminates judicial review, shall be construed as precluding review of

constitutional claims or questions of law raised upon a petition for review

filed with an appropriate court of appeals in accordance with this section.” 

8 U.S.C. § 1252(a)(2)(D), amended by Real ID Act of 2005, Pub. L. No.

109-13, Div. B., § 106, 119 Stat. 231.

3 Section 1252(a)(2)(B)(i) provides that “no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under section

. . . 1229c. . . .” 8 U.S.C. § 1252(a)(2)(B)(i).
CORRO-BARRAGAN V. HOLDER 7

Before the Real ID Act of 2005, § 1229c(f) barred judicial

review of denials of voluntary departure based on both

discretionary rulings and statutory ineligibility.

4

See GomezLopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2004). After

passage of the Real ID Act, we addressed a similar statute,

8 U.S.C. § 1158(a)(3), that prohibited review of any

determination relating to the one-year bar for asylum claims. 

Ramadan v. Gonzales, 479 F.3d 646, 649–50 (9th Cir. 2007). 

We concluded that “Section 106 of the Real ID Act of 2005

restores our jurisdiction over ‘constitutional claims or

questions of law.’” Id. at 650 (citation omitted). We now

confirm, as we previously held in Gil, 651 F.3d at 1003, that

the Real ID Act also restores appellate jurisdiction over

constitutional claims or questions of law in challenges to

denials of voluntary departure under § 1229c. Other circuits

are in accord with this holding. See, e.g., Serrato-Soto v.

Holder, 570 F.3d 686, 688 (6th Cir. 2009) (reviewing denial

of relief under § 1229c because the petitioner raised a

question of law regarding whether a certain crime was a

crime of moral turpitude); Garcia v. Holder, 584 F.3d 1288,

1289 n.2 (10th Cir. 2009) (concluding that, notwithstanding

the jurisdiction-stripping provisions of the INA, “this court

always retains jurisdiction to review constitutional claims and

questions of law”).

4 Section 1229c(f) provides that “[n]o court shall have jurisdiction over

an appeal from denial of a request for . . . voluntary departure . . . .” 

8 U.S.C. § 1229c(f).
8 CORRO-BARRAGAN V. HOLDER

II. DENIAL OF VOLUNTARY DEPARTURE5

We review de novo the interpretation of “physically

present” under § 1229c(b) by looking first to the plain

meaning of the statute. See Federiso v. Holder, 605 F.3d 695,

697 (9th Cir. 2010) (citation omitted). We conclude that

§ 1229c(b) is unambiguous and join the Eleventh Circuit in

holding that the statute requires uninterrupted physical

presence in the United States for one year for an alien to be

eligible for voluntary departure at the conclusion of removal

proceedings. See Medina Tovar v. U.S. Att’y Gen., 646 F.3d

1300, 1306 (11th Cir. 2011).

1. Statutory Background of § 1229c

The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”) replaced suspension

of deportation under § 1254 with cancellation of removal and

voluntary departure under § 1229b and § 1229c. Eligibility

for suspension of deportation had required physical presence

in the United States “for a continuous period of not less than

seven years.” 8 U.S.C. § 1254(a)(1). Before the IIRIRA,

§ 1254(e)(1) had governed voluntarydeparture, and contained

no requirement for continuous physical presence, instead

leaving such relief mostly to the discretion of the Attorney

General.

In INS v. Phinpathya, 464 U.S. 183, 189–90 (1984), the

Supreme Court held that any absence, regardless of duration,

during the seven-year period precluded eligibility for

5 Corro did not contest the denial of cancellation of removal in her

opening brief, so the issue is waived. Fed. R. App. P. 28(a)(9)(A); Kohler

v. Inter-Tel Techs., 244 F.3d 1167, 1182 (9th Cir. 2001).
CORRO-BARRAGAN V. HOLDER 9

suspension of deportation. The Court reasoned that when

Congress saw fit to provide exceptions for continuous

physical presence in similar provisions, it had done so, and

Congress’s “deliberate omission” of authority for flexible

administration of the statute did “not readily admit any

[exceptions].” Id. (citation and quotation marks omitted). 

Congress responded to Phinpathya by adding § 1254(b)(2),

under which “brief, casual, and innocent” absences during the

seven-year period did not “meaningfully interrupt the

continuous physical presence.” See Immigration Reform and

Control Act of 1986, Pub. L. No. 99-603, § 315(b), 100 Stat.

3359 (1986); see also Rosenberg v. Fleuti, 374 U.S. 449

(1963).

In the IIRIRA, Congress merged deportation and

exclusion proceedings into a single process—a removal

proceeding.

6

See Romero-Torres v. Ashcroft, 327 F.3d 887,

889 (9th Cir. 2003). Congress repealed § 1254 and replaced

it with § 1229b to govern cancellation of removal and

§ 1229c to govern voluntary departure. H.R. Rep. No. 104-

828, at 48–52 (1996) (referring to INA §§ 240A and 240B,

respectively). In place of the “brief, casual, and innocent”

standard, Congress added § 1229b(d), which precluded

eligibility for cancellation of removal if the alien “departed

from the United States for any period in excess of 90 days or

for any periods in the aggregate exceeding 180 days” during

a ten-year period immediately preceding application for

cancellation of removal. 8 U.S.C. § 1229(b)(d)(2). To be

eligible for voluntary departure at the conclusion of removal

6 Prior to the IIRIRA, a deportation proceeding involved a person

already present in the United States and an exclusion proceeding involved

a person seeking entry to the United States. See, e.g., Fleuti, 374 U.S. at

450–51; Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988).
10 CORRO-BARRAGAN V. HOLDER

proceedings under § 1229c(b), an alien now must have been

“physically present in the United States for a period of at least

one year immediately preceding the date the notice to appear

was served.” 8 U.S.C. § 1229c(b)(1)(A).

2. Statutory Construction of § 1229c

Perhaps because courts were barred from reviewing

denials of voluntary departure prior to the Real ID Act of

2005, there are few cases interpreting the “physically present”

requirement of § 1229c(b). The Eleventh Circuit considered

the issue in Medina Tovar v. United States Attorney General,

and held that a petitioner could not satisfy the eligibility

requirement because “he was not physically present in the

United States for the entirety of the relevant one year period.” 

646 F.3d at 1306. The court rejected the petitioner’s

“assertion that the physical presence requirement for postorder voluntary departure should be interpreted by analogy to

the BIA’s physical presence requirement in the cancellation

of removal context.” Id. The court reasoned that cancellation

of removal under § 1229b “requires a longer period of

presence” and “Congress specifically set forth special rules

relating to continuous residence or physical presence and

provided for the treatment of any breaks in presence.” Id.

(citing 8 U.S.C. § 1229b(d)).7“Conversely,” the court added,

 

7

 8 U.S.C. § 1229b(d) provides in relevant part:

(d) Special rules relating to continuous residence or

physical presence. . . . (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) if the alien
CORRO-BARRAGAN V. HOLDER 11

“Congress did not provide such exceptions relating to the

[one-year] physical presence requirement in the voluntary

departure context.” Id. The Eleventh Circuit relied on the

Supreme Court’s guidance for statutoryconstruction: “Where

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” Id.

(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).

The Eleventh Circuit’s reasoning is persuasive. Congress

explicitly set forth special rules for the treatment of certain

breaks in physical presence under § 1229b, and yet no

exceptions are provided for breaks in physical presence under

§ 1229c(b). Under the plain meaning of § 1229c(b), an alien

must be physically present in the United States for at least

one uninterrupted year to be statutorily eligible for voluntary

departure at the conclusion of removal proceedings.

Corro argues that using different interpretations of the

physical presence requirement under § 1229b and § 1229c

produces absurd results. But it is hardly absurd that Congress

would allow for brief departures during the ten-year period of

physical presence required by § 1229b(b)(1)(A) and not

during the shorter one-year period under § 1229c(b)(1)(A). 

She also argues that using a strict interpretation of “physically

present” undermines the purpose of the voluntary departure

statute, which she maintains is to allow non-citizens who

have developed significant ties to the United States through

at least one year’s presence in the country to settle their

has departed from the United States for any period in

excess of 90 days or for any periods in the aggregate

exceeding 180 days.
12 CORRO-BARRAGAN V. HOLDER

affairs. She cites to the government’s proffered reason for

§ 1229c(b)’s one-year requirement in Tovar-Landin v.

Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004), a reason

offered only to support its argument that the one-year

requirement was not wholly irrational in the face of an equal

protection challenge.

But in Tovar-Landin, we made no reference to Congress’s

actual purpose in enacting the one-year requirement; instead,

we simply held that the government met its burden in coming

forward with some legitimate reason for the one-year rule. 

Id. (“According to the government, ‘Congress presumably

determined that those aliens with at least a year’s presence

had accumulated sufficient interests to warrant time to settle

their affairs in this country.’”). As the court noted in

Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002), it is

“irrelevant whether or not the justification [for the rule]

proffered by the [government is] in fact the reason that led to

the legislative classification in the first instance.”

We decline Corro’s request to create an exception to the

plain meaning of § 1229c(b) based on the government’s

proffered rational basis for the statute in Tovar-Landin,

particularly because the rules of statutory construction

referenced by the Supreme Court in Russello suggest the

opposite result. See Russello, 464 U.S. at 23. Section

1229c(b) is not ambiguous and we presume that Congress

acted intentionally in including special rules for brief

interruptions in physical presence under § 1229b but

excluding those rules from § 1229c. We therefore interpret

“physically present in the United States for a period of at least

one year” in § 1229c(b) as requiring one year of uninterrupted

physical presence in the United States.
CORRO-BARRAGAN V. HOLDER 13

Because Corro failed to establish that she had been in the

United States for at least one uninterrupted year before being

served with the Notice to Appear, she is ineligible for relief

in the form of voluntary departure under § 1229c(b).

PETITION DENIED.