IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60862

CIRILO RAMOS-TORRES, also known as Cirilo Ramos,

also known as Cirilo R. Torres,

Petitioner

v.

ERIC H. HOLDER, JR., U.S. Attorney General,

Respondent

Petition for Review of an Order

of the Board of Immigration Appeals

Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.

WIENER, Circuit Judge:

Petitioner Cirilo Ramos-Torres, a Mexican citizen, was convicted in 1982

for illegal entry into the United States. He was sentenced to three years of

unsupervised probation that was conditioned on his making no illegal return to

the United States. Ramos-Torres requested an administrative voluntary

departure in lieu of deportation, which was granted, and he returned to Mexico.

At some point during the next decade, Ramos-Torres did illegally reenter the

United States, and, in 1993, he became a lawful permanent resident (LPR). In

2006, Ramos-Torres was convicted for illegally transporting aliens and was

ordered removed from the United States. Ramos-Torres applied for cancellation

United States Court of Appeals

Fifth Circuit

F I L E D

April 4, 2011

Lyle W. Cayce

Clerk

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of removal as an LPR, but the Immigration Judge (IJ) determined as a matter

of law that he had never been eligible for LPR status because of his 1982

voluntary departure, and thus he was ineligible for cancellation of removal. The

BIA affirmed the IJ’s decision. We agree and deny Ramos-Torres’s petition for

review.

I. FACTS & PROCEEDINGS

A. Facts

In 1980, Ramos-Torres, a Mexican citizen, illegally entered and began

residing in the United States. In March 1982, the former Immigration and

Naturalization Service (INS) apprehended Ramos-Torres while he was illegally

transporting aliens. Ramos-Torres pleaded guilty only to the offense of

unlawfully entering the United States and was convicted on that count. He was

subsequently sentenced to three years of unsupervised probation conditioned on

his “making no illegal return to the United States.” As noted, Ramos-Torres

applied for an administrative voluntary departure in lieu of deportation

proceedings, which was granted, and he returned to Mexico.

Ramos-Torres did illegally return to the United States, however, allegedly

right after he voluntarily departed in March 1982. In 1993, he applied for and

was granted LPR status under the amnesty provision of the Immigration Reform

and Control Act of 1986 (IRCA).

1

In 2006, the INS again apprehended Ramos-Torres for illegally

transporting aliens. He pleaded guilty and was convicted of that offense for

which he was sentenced to one year of unsupervised probation. Based on that

conviction, however, the INS took him into custody for violation of his

immigration status, pending removal proceedings. At those proceedings, the IJ

sustained the charge of removability.

 Pub. L. No. 99-603, § 201, 100 Stat. 3359, codified at 8 U.S.C. § 1255a. 1

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B. Proceedings

In a separate proceeding, Ramos-Torres sought LPR cancellation of

removal under § 240A(a) of the Immigration and Nationality Act (INA). In his

2

original application, he stated that he first entered the United States in 1993 as

an LPR, but he later amended the application to admit that he had first entered

the United States in 1982 and had done so illegally.

At the cancellation-of-removal hearing, the IJ had Ramos-Torres confirm

that he was admitting that he had returned to Mexico under an administrative

voluntary departure order following his illegal entry conviction in 1982. Based

on this admission, the IJ determined that Ramos-Torres could never have

lawfully obtained temporary resident status—which requires continuous

residence in the United States since January 1, 1982—because his voluntary

departure later that year broke the requisite period of continued residence. And,

if Ramos-Torres could not have legally adjusted his status to that of a temporary

resident, he could not have lawfully adjusted his status to that of an LPR. Based

on this determination, the IJ concluded that Ramos-Torres was ineligible for

cancellation of removal as a matter of law under the INA and ordered RamosTorres removed to Mexico.

Ramos-Torres appealed the IJ’s judgment to the BIA, which conducted a

de novo review and affirmed the IJ’s order. Ramos-Torres timely petitioned for

review of the BIA’s order.

II. ANALYSIS

A. Standard of Review

We have jurisdiction to review final orders of removal only to the extent

that they raise “constitutional claims or questions of law.” In reviewing the

3

 8 U.S.C. § 1229b. 2

Id. § 1252(a)(2)(D).

3

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BIA’s decision, we review de novo questions of law and the BIA’s interpretation

and application of Supreme Court and Fifth Circuit precedent. We do accord

4

deference to the BIA’s interpretation of immigration statutes, however, “unless

it is plainly erroneous or inconsistent with the regulation.”

5

B. Ramos-Torres’s Voluntary Departure Was “Under Threat of

Deportation”

When we review a final order of removal, “a constitutional claim or

question of law may be reviewed only if ‘the alien has exhausted all

administrative remedies available to the alien as of right.’ Failure to exhaust is

a jurisdictional bar.” “Petitioners fail to exhaust their administrative remedies

6

as to an issue if they do not first raise the issue before the BIA, either on direct

appeal or in a motion to reopen.”

7

Ramos-Torres asserts on appeal that “[t]he conclusions of the IJ and the

BIA that [he] departed ‘under threat of deportation’ [are] not supported by the

record.” The government counters that we “lack[] jurisdiction to consider

Ramos’s argument that he did not accept voluntary departure under threat of

being placed in deportation proceedings because Ramos did not exhaust this

argument before the agency.” Alternatively, the government contends that

Ramos-Torres’s argument is without merit in light of record evidence that

supports the finding that his voluntary departure was under threat of

deportation.

In Ramos-Torres’s brief to the BIA, he only argued that a “voluntary

See Lopez De Jesus v. I.N.S., 312 F.3d 155, 158-89 (5th Cir. 2002). 4

Silwany-Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th Cir. 1992) (“[Our de novo 5

review] is limited, and the court accords deference to the Board’s interpretation of immigration

statutes unless there are compelling indications that the Board’s interpretation is wrong.”)

(internal quotation marks and citation omitted).

Claudio v. Holder, 601 F.3d 316, 317 (5th Cir. 2010) (quoting 8 U.S.C. § 1252(d)(1)).

6

Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).

7

4

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departure” is distinct from a “departure under an order of deportation.” At no

time did he contest the IJ’s conclusion that he “was voluntarily returned to

Mexico in lieu of deportation.” The BIA, in turn, determined that “[t]he findings

of fact which are fully set forth in the Immigration Judge’s decision are not

clearly erroneous. The issue before us involves the respondent’s 1982 voluntary

return to Mexico under a threat of deportation . . . .”

To the extent that the question whether Ramos-Torres’s voluntary

departure was “in lieu of deportation” requires a factual determination that was

made by the IJ and confirmed by the BIA, we have no jurisdiction to review it.

8

To the extent that this question presents an issue of law, Ramos-Torres did

indeed fail to exhaust his administrative remedies by not first raising it before

the BIA. We therefore have no jurisdiction to review it and must accept that

Ramos-Torres voluntarily departed the United States in 1982 under threat of

deportation.

C. A “Voluntary Departure Under Threat of Deportation” Establishes

a Break in Continuous Residence

As the BIA explained in its order, “[a]n alien seeking cancellation of

removal has the burden of proof to establish that he is eligible for the relief

sought.” If, as a matter of law, Ramos-Torres was not eligible to receive LPR

status in 1993, then he could not, and therefore did not, lawfully acquire it;

absent which he is not eligible for cancellation of removal. The key issue before

9

us, therefore, is whether Ramos-Torres’s 1982 voluntary return to Mexico under

a threat of deportation (which the BIA refers to as an “administrative voluntary

Furthermore, Ramos-Torres acknowledged in his appeal brief to the BIA that “[t]he 8

IJ”s written decision, issued March 23, 2009, correctly and accurately summarizes the facts

. . . .”

The Attorney General may terminate resident status “if it appears to the Attorney 9

General that the alien was in fact not eligible for such status.” 8 U.S.C. § 1255a(b)(2)(A).

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departure”) interrupted his continuous residence in the United States such that

he has never been eligible for LPR status.

Ramos-Torres putatively obtained LPR status under the amnesty

provision of the IRCA, which requires that the alien applicant “establish that he

entered the United States before January 1, 1982, and that he has resided

continuously in the United States in an unlawful status since such date and

through the date the application is filed under this subsection.” The IRCA

10

further states:

[A]n alien shall not be considered to have resided continuously in

the United States, if, during any period for which continuous

residence is required, the alien was outside the United States as a

result of a departure under an order of deportation . . . .

11

The Attorney General “may provide for a waiver, in the discretion of the

Attorney General, of the periods [of continuous residence] in the case of an

absence from the United States due merely to a brief temporary trip abroad

required by emergency or extenuating circumstances outside the control of the

alien.”

12

Ramos-Torres’s primary argument both to the BIA and in his petition here

is that, for purposes of the IRCA, his “voluntary departure under the threat of

deportation” is not the same thing as “a departure under an order of

deportation.” Notwithstanding the fact that both are “departures,” argues

Ramos-Torres, “Congress knew the difference between voluntary departure and

deportation,” so a voluntary departure should not break continuous residence

the way that deportation does under the statute.

Id. § 1255a(a)(2)(A) (emphasis added).

10

Id. § 1255a(g)(2)(B)(i) (emphasis added).

11

Id. § 1255a(g)(2)(C) (emphases added). 12

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Both the BIA and the government rely on our analysis in Mireles-Valdez

v. Ashcroft. There, we held that an administrative voluntary departure, like

13

that of Ramos-Torres, interrupts continuous presence for purposes of a related

INA provision. We pointed to the “obvious and compelling fact” that “voluntary

14

departure, with its attendant understanding that the alien will cease his illegal

presence, is not consistent with continuous presence.” We did not understand

15

a voluntary departure to be different by nature “whether offered at the end of

the immigration proceedings or earlier at the border . . . . When the Attorney

General grants voluntary departure, the alien cannot later claim that he did so

while continuing his continuous presence for use in a future adjudication for

discretionary relief.” We also considered a regulation that the Attorney General

16

had issued in the context of the Nicaraguan Adjustment and Central American

Relief Act, which stated outright that “‘a period of continuing physical presence

is terminated whenever . . . the alien has voluntarily departed under threat of

deportation.’”

17

Although not mentioned by either party, Mireles-Valdez is distinguishable

because that case addressed continuous presence, whereas the controlling statute

here requires continuous residence. The Supreme Court has said in the past,

18

in the context of a statute being amended to replace “continuous residence” with

 349 F.3d 213 (5th Cir. 2003).

13

Id. at 214.

14

Id. at 218.

15

Id. 16

Id. (quoting 8 C.F.R. § 240.64(b)(3)). 17

The IJ seemingly confused the requirements of the statute as well. The statute

18

requires continuous residence since January 1, 1982 and continuous physical presence since

November 6, 1986. See 8 U.S.C. § 1255a(a)(2), (3). Seemingly, Ramos-Torres’s continued

physical presence is not at issue in this case.

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“continuous presence”: “Had Congress been concerned only with

‘non-intermittent’ presence or with the mere maintenance of a domicile or

general abode, it could have retained the ‘continuous residence’ requirement.

Instead, Congress expressly opted for the seven year ‘continuous physical

presence’ requirement.” The requirement of maintaining continuous residence,

19

therefore, although not as strict as the requirement of continuous physical

presence discussed in Mireles-Valdez, is nevertheless based on the same

principles.

For example, it is no stretch to argue, along the lines of Mireles-Valdez,

that voluntary departure, with its attendant understanding that the alien will

thereby cease his illegal presence, is equally inconsistent with continuous

residence. As the Supreme Court has held, “The obvious purpose of deportation

is to terminate residence.” Consequently, a voluntary departure in lieu of

20

deportation has the same purpose of terminating residence, which is still

inconsistent with fulfilling a continuous residence requirement.

Ramos-Torres directs us to the Ninth Circuit cases of Pedroza-Padilla v.

Gonzalez and Espinoza-Gutierrez v. Smith to support his proffered distinction

21 22

between voluntary departure under threat of deportation and a departure under

order of deportation. If anything, however, both cases cut against his argument.

In Pedroza-Padilla, the alien was “ordered deported from the United States in

1984, [and] was given until January 5, 1985 to depart voluntarily, but failed to

depart until March 27, 1985.” Agreeing with the Administrative Appeals Office,

23

I.N.S. v. Phinpathya, 464 U.S. 183, 191 (1984). 19

Mrvica v. Esperdy, 376 U.S. 560, 568 (1964). 20

 486 F.3d 1362 (9th Cir. 2007).

21

 94 F.3d 1270 (9th Cir. 1996). 22

 486 F.3d at 1363. 23

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the Ninth Circuit held that the alien’s March 1985 voluntary departure rendered

him “ineligible for legalization because he had not resided continuously in the

United States since at least January 1, 1982.”

24

In Espinoza-Gutierrez, the alien had departed, without receiving advance

permission from the INS, for a four-day trip to his hometown in Mexico to check

on some property for his parents while his application for LPR status was

pending. The Ninth Circuit examined whether this trip interrupted the LPR

25

requirement that he have been physically present in the United States since

November 6, 1986. Consequently, the analysis in Espinoza-Gutierrez is distinct

26

from ours today because that case involved both a different provision and a

different type of departure. As the Ninth Circuit clarified, “[H]e was not subject

27

to a deportation hearing, nor is he subject to an order of deportation. He was the

subject of an exclusion proceeding [upon reentering the United States after his

four-day trip].”

28

As a general matter, in fact, the Ninth Circuit has embraced reasoning

contrary to that urged by Ramos-Torres, concluding that a voluntary departure

does not differ from a deportation order vis-à-vis interruption of continued

presence:

An administrative “voluntary departure” under the statute is

something that occurs with the permission of the Attorney General

in lieu of removal proceedings. . . . While the statute provides some

Id. at 1365. 24

 94 F.3d at 1271-72.

25

Id. at 1274. See also 8 U.S.C. § 1255a(a)(3). 26

The Ninth Circuit accordingly remanded the case for the district court to determine 27

whether the trip was “brief, casual, and innocent” in accordance with the standard for

determining which absences interrupt continuous physical presence. See Espinoza-Gutierrez,

94 F.3d at 1279.

Id. at 1278. 28

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incentives to an alien to apply for voluntary departure and thus

avoid removal proceedings and removal, nothing there suggests that

an alien who commits to departure in order to avoid such

proceedings is nevertheless entitled to continue accruing “presence”

so as to become eligible for other discretionary relief.

29

The decisions of the Ninth Circuit, therefore, do not lend support to RamosTorres’s argument.

Ramos-Torres also asserts that “Congress intended the remedial

provisions of 8 U.S.C. § 1255a, targeted exclusively and specifically at illegal

aliens, to be generously construed in order to relieve applications of unintended

consequences,” and points to the waivers of absence provided for by the statute.

But again, the waivers of absence are only provided in the Attorney General’s

discretion for “brief temporary trip[s] abroad required by emergency or

extenuating circumstances.” In contrast, the record here confirms that

30

(1) Ramos-Torres signed an order of voluntary departure, agreeing to return to

Mexico, and (2) his criminal sentence suggested that he was not to reenter the

United States for three years. His trip was not brief or temporary; neither was

it required by an emergency or the type of extenuating circumstances excused

by the Attorney General.

Such a departure is equally significant, under threat of deportation or

under an order of deportation, and either breaks an alien’s continuous

31

Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir. 2003) (per curiam). The statute

29

providing for voluntary departures prior to 1996 provided, in relevant part, that the “Attorney

General may, in his discretion, permit any alien under deportation proceedings . . . to depart

voluntarily from the United States at his own expense in lieu of deportation.” 8 U.S.C.

§ 1254(e)(1) (1994).

 8 U.S.C. § 1255a(g)(2)(C). 30

According to the law at the time of Ramos-Torres’s voluntary departure, we 31

determined that such a departure under threat of deportation “significantly interrupt[ed]” an

alien’s presence in the United States and thus that such departure was “a significant

departure from the United States.” Vargas-Gonzalez v. I.N.S., 647 F.2d 457, 458 (5th Cir.

1981); Segura-Viachi v. I.N.S., 538 F.2d 91, 92 (5th Cir. 1976).

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residence to the same extent. The inescapable fact is that Ramos-Torres left the

United States for an unknown period of time after agreeing that he would not

illegally return to the United States for at least three years. He did not briefly

depart for reasons of emergency or extenuating circumstances; rather, he

departed because he was convicted of a crime and sentenced to three years of

probation, which required his departure from the United States. The LPR

provision at issue here falls into a subsection of the INA entitled “Absences

caused by deportation or advanced parole.” Ramos-Torres’s absence was surely

32

caused by the imminence of his deportation, even if deportation proceedings had

not yet commenced against him. Consequently, his voluntary departure in lieu

of deportation interrupted his alleged continuous residence as a matter of fact

and as a matter of law.

In sum, there are no compelling indications that the BIA incorrectly

concluded, as a matter of law, that Ramos-Torres was ineligible for LPR status

based on his 1982 voluntary departure from the United States and that he is

now ineligible for LPR cancellation of removal.

CONCLUSION

For the foregoing reasons, Ramos-Torres’s petition for review of the BIA’s

order is DENIED.

 8 U.S.C. § 1255a(g)(2)(B). 32

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