### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60612

VALENTIN JOSE VALENZUELA, also known as Jose Valentin ValenzuelaMoreno
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. A090 284 945

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges. PER CURIAM: * Valentin Jose Valenzuela petitions from a Board of I mmigration Appeals (“BIA”) determination that he abandoned hi s s t a tus a s a l awful permanent resident and was not entitled to a post-conclusion voluntary departure. For the following reasons, we DENY in part, and DISMISS in part, the p e t i tion for review. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Septem ber 13, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60612 Document: 00512373701 Page: 1 Date Filed: 09/13/2013No. 12-60612 FACTS AND PROCEEDINGS Valenti n J o s e Valenzuela (“Valenzuela”), a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident (“LPR”) on December 1, 1990. He has a wife, a job, and three U.S. citizen children (ages 13, 9, and 7). He also has a criminal record. Valenzuela was convicted in 1996 in the Western District of T e x a s o f aiding and abetting an alien in violation of 8 U.S.C. § 1325 and 18 U. S

. C

. § 2(a), a nd was s entenced to sixty days i n prison and f ive years of p robation. Later in 1996 he was arre s t e d i n M i s souri and charged with possession a n d a ttempted tr afficking of a c ontrolled s ubstance after the car he was drivin g w a s f ound t o contain sixty t o seventy pounds of marijuana; he was released o n b o nd. After he f ailed t o appear at a s cheduled hearing in September 1997, his bond was forfeited. 1 Valenzuela also w as arrested in 2001 for driving u nder the influence in Texas; he was placed in a pretrial diversion program in 2003, and successfully served one year probation. The Department of Homeland Security (“DHS”) b e g a n removal proceedings in 2006 u n der 8 U.S.C. § 1227(a)(1)(E)(i) against Valenzuela for aiding and abetting an alien in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2(a) within five y e a r s o f adjusting status. I n the r emoval proceedings, Valenzuela conceded removability, and instead filed a request for e ither a w a iv e r of inadmissability or a post-conclusion voluntary departure. Though he did not appear to d i s c l o s e th e fact on at least one of his applications for relief, during the course of the removal proceedings it came out that Valenzuela spent from roughly J u l y 1 9 9 7 to S eptember 1 999 in Mexico. Valenzuela claimed that h e t raveled to Mexico in July 1997 to marry his Mexican citizen wife in a religious ceremony. Valenzuela further claimed that he always intended to return to the United States after the wedding ceremony,

1 The M is s ouri charges w ere dis mis s ed af ter he p revailed on a m otion to s up p res s in M is s ouri s tate court in N ovem ber 2008. 2 Case: 12-60612 Document: 00512373701 Page: 2 Date Filed: 09/13/2013No. 12-60612

b u t was forced to remain in Mexico to care for his sick father and work on the family farm. Valenzuela stated that he finally r eturned to the United States in September 1999 when o n e o f his b rothers was able to take over the care of his father. Valenzuela also cited the desire to earn money t o support his pregnant wife a s a reason he returned to the United States. The Immigration Judge (“IJ”) declined Valenzuela’s requests for either a waiver of inadmissability or a postconclusion voluntary departure. The IJ denied the waiver of inadmissability o n tw o independent grounds. First, the IJ found that Valenzuela voluntarily abandoned his L P R s tatus due to his long stay in Mexico. As evidence of Valenzuela’s objective intent to abandon his status, the IJ highlighted that Valenzuela left for M e x ico shortly after being released o n b ond for d r u g t r afficking charges, married a Mexican citizen, remained in Mexico uninterrupted for over two years, maintained no residence or bank account in the United State s , worked in Mexico, and had contact with the United States only through occasional phone calls to family and friends. The IJ found that “it is very informative and not coincident a l t h a t [Valenzuela] was released on bond on incredibly serious drug charges, then fled the United States a nd remained gone for a p eriod of two and a half years during the pendency of his drug trafficking charges.” Second, i n the alternative, the IJ entered an adverse c redibility finding against Valenzuela, and determined that Valenzuela h a d failed to establish his eligibility for relief. The IJ p ointed to Valenzu e l a ’ s failure to disclose fully his departure from the United S tates, a potential lack of candor about criminal arrests, and other inconsistencies in Valenzuela’s account of events as justifying the adverse credibility finding. With r espect to Valenzuela’s request for a p ost-conclu s i o n voluntary departure, the IJ relied o n the adverse credibility finding to d e ny relief. The IJ reasoned that Valenzuela’s l ack of candor made Valenzuela undeservi n g of a favorable exercise of discretion.

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Valenzuela timely appealed t o the BIA, and the BIA dismissed the appeal in a written opinion. The B IA determined that the IJ applied the proper totalityof-the-circumstances test when determining Valenzuela’s intent in leaving the United States, and that the IJ properly placed the b urden on D HS to demonstrate that Vale n z u e l a abandoned his LPR status. The BIA found no clear

error in the IJ’s factual findi n g s , o r i n the IJ’s ultimate determination that Valenzuela abandoned his status as a lawful permanent resident of the United States. In response to Valenzuela’s claims that he always intended to r eturn to the United States b ut was forced to remain in M exico to care f or his father, the BIA noted the lack of any c orroborating documentation or detailed testimony to support Valenzuela’s claims that his father needed medical c are, a s well as the fact t h a t V alenzuela’s departure from the United S tates “coincided with the institution of criminal charges against him for drug trafficking in Missouri.” Because the BIA affirmed the IJ’s determination that Valenzuela abandoned his status, the BIA f ound it unnecessary to resolve the IJ’s adverse credibility findings a gainst Valenzuela. To determine whether Valenzuela was entitled to a post-conclusion voluntary d eparture, the BIA balanced the positive and n egative equities in the case. After noting numero u s f a ctors favoring a positive exercise of discretion—Valenzuela’s lengthy residence in the United States, his relatives and childr e n i n t h e United States, his history of employment, and his regular payment of income taxes in the United States—the BIA c oncluded that those factors were outweighed by Valenzue l a ’ s c riminal convictions and “his general disrespect o f th e l aw o f this country i n evading criminal proceedings over an extended period of time,” and denied a postconclusion voluntary departure.

4 Case: 12-60612 Document: 00512373701 Page: 4 Date Filed: 09/13/2013No. 12-60612 STANDARD OF REVIEW When considering a petition for review, this court reviews only th e BIA’s decision, and not the IJ’s decision, unless the IJ’s decision has some impact on the BIA’s decision. Mikhael v. INS , 115 F .3d 299, 302 (5th Cir. 1997). This court must affirm the BIA’s d e c i s i o n i f there is no error of law and if r easonable, substantial, and p robative evide n c e o n the record, considered as a whole, supports the decision’s factual findings. Moin v . Ashcroft , 335 F.3d 415, 418 (5th Cir. 2003). Conclusions regarding an alien’s intent are essentially factual and

are reviewed for substantial evidence. Id. This court will not rever s e a BIA determination that an alien intended to abandon his LPR status unless the alien “provides evidence so compelling that no reasonable fact-finder could conclude against [the alien].”Id. (internal quotations and citation omitted).

DISCUSSION Valenzuela makes three arguments o n appeal. First, Valenzuela argues that the BIA and IJ wrongly determined that he abandoned his LPR status as
a result of his extended s tay i n Mexico. Second, Valenzuela argues that the IJ erred i n entering an adverse credibility finding against him. Third, Valenzuela argues th at the BIA erred in denying Valenzuela a post-conclusion voluntary departure.

A. The B IA Did Not E r r In Determining That Valenzuela Abandoned His Status As A Lawful Permanent Resident. Valenzuela argues that t h e B IA and IJ wrongly determined that he abandoned his LPR status. Valenzuela contends that the B IA and IJ focused solely o n the time he w as absent from the country, improperly placed the burden

on him to dem o n s t r a t e that he had not abandoned his status, and f ailed to consider the t otality of the circ u m s t a n c es surrounding his absence from the

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United States. Valenzuela c laims that, under the correct l e gal standard, his colorab l e c l a i m to LPR status was not refuted by “clear, unequivocal and convincing evidence.” Neither argument succeeds. 1) The BIA Applied The Correct Legal Standard “[T]o qualify as a r eturning resident alien, an alien must have acquired [LPR] status in accordance with o ur laws, must have retained that s tatus from the time that [he] acquired it, and must be returning to an unrelinquished lawful permanent residence after a temporary visit abr o a d

. ” Moin , 335 F.3d at 418 (internal quotation marks o mitted). A “temporary visit abroad” is not defined only in terms of elapsed time; a trip is “temporary” “if (a) it is f or a relatively short p eriod, fixed by some early event; or (b) the trip will t erminate upon the

occurrence of an event that h as a reasonable possibility of occurring within a rel atively short period of time.” Id. (internal quotation marks and citation omitted). If the alien’s trip abroad is not “relatively short,” it is “temporary” only if the alien had “ a continuous, uninterrupte d intention to r e turn to the United States during the entirety of his visit.” Singh v. Reno , 113 F.3d 1512, 1514 (9th Cir. 1 997) (internal quotation marks and citation omitted). In ascertaining the alien’s i ntent, the relevant question i s not whether the alien ultimately intended to return to the United States but wheth e r h e i n t e nded to return “within a relatively short period

. ” M o in , 335 F.3d at 4 19 (internal quotation marks omitted). Consideration should be given when assessing intent to the totality of the alien’s circumstances including: the alien’s famil y ties, property holdings,

a n d business affiliations in the United States, as c ompared to his countr y o f origin. Id. The BIA articulated and applied the correct legal standard. Multiple points in the B IA’s opinion belie Valenzuela’s contention that the BIA failed to

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consider the totality of the circu m s t ances. The B IA noted that “abandonment is n ot d etermined by the length of the absence alone,” and proceeded to consider

numerous factors (such as Valenzuela’s job, criminal, and t ax history) beyond merely looking at the time Valenzuela was absent from the United States. Valenzuela’s arguments that the IJ improperly placed the burden on him to demonstrate his entitlement to legal status are s imilarly f lawed. As a preliminary matter, his b rief only alleges that the “IJ erred in s hifting the burden of proof from the government to him,” and does not allege that the BIA improperly did s o. As such, we n eed not address it. See, e.g. , M ikhael , 115 F.3d at 302. And even assuming that we construe his argument to contend that the BIA also erred, the opinions below demonstrate that this did not occur. This is not a c ase w h e r e the IJ and/or the BIA actually placed the legal burden on the alien. See, e.g. , Matadin v. Mukasey , 546 F.3d 85, 90-91 (2d Cir. 2008). Both the IJ and the BIA s t ated that they placed the burden on the DHS, and a r eview of the record contains nothing to suggest that t h e b u rden was p l aced on Valenzuela t o d emonstrate his entitlement to relief. Valenz u e l a ’ s general inability t o p r o v e a significant connection to the United States or demonstrate his f

a t h e r ’ s n eed for medical care only became an issue after the Government convinced the IJ and the B IA that Valenzuela left the country to f l e e t h e Missouri drug trafficking proceedings, and further, that h e had n o significant connection to the United States during the period. The record does not indicate that Valenzuela had the burden to demonstrate his entitlement to relief, but rather just that the Government had a strong case t h a t V a l enzuela failed to rebut. 2) The BIA’s Determination Is Supported By Substantial Evidence
The Government had the burden in the administr a tive proceedings of demonstrating with “clea r , u n equivocal, and c o nvincing evidence” that

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Valenzuela abandoned his status a s a lawful permanent r e sident in the United States. Moin , 335 F .3d at 419. On appe l l a t e r e vi e w under the substantial evidence standard, we must determine whether Valenzuela “provides evidence

so compelling that no reasonable fact-finder c o u l d conclude” that the Government met its factual burden. We conclude that a reasonable fact-finder could agree with the B IA’s d eter m i n a t ion. Given the t emporal proximity of Valenzuela’s p ending Missouri drug prose c u tion to his departure from the United S tates, a reasonable jurist could conclude that the clear a nd unequivocal evidence indicated that Valenzuela did not maintain a continuou s d e s i r e to return to the United States within a relatively s hort period because the evidence indicates that Valenzuela was leaving the country t o flee criminal proceedings. Valenzuela’s substantial evidence challenge accordingly fails.

B
. We Do Not Review Valenzuela’s Challenge T o The I mmigratio n Judge’s Adverse Credibility Findings. Valenzuel a ’ s b rief discusses potential e rrors with the IJ’s adverse credibility finding. However, as Valenzuela admits, the BIA “declined to review the IJ’s findings on this issue.” Our review of the record indicates that the BIA did not r ely on the adverse credibility finding to deny relief. As such, we do not address Valenzuela’s arguments h er e because this court only reviews the decisions of the BIA. See, e.g. , Mikhael , 115 F.3d at 302.

C. We Lack J urisdiction To Review The B IA’s D e nial Of A PostConclusion Voluntary Departure. Valenzuela argues that the BIA erred i n denying him a post-conclusion voluntary departure. Under the Illegal Immigration Reform a nd Immigrant Responsib ility Act of 1996, this court “lack[s] j urisdiction to review his claim that

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the BIA erred in denying his reques t f o r voluntary departure.” Eyoum v. INS , 125 F.3d 889, 891 (5th Cir. 1997); see also 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B). Accordingly, we c annot review his arguments r e garding the BIA’s de n i a l o f a post-conclusion voluntary departure.

CONCLUSION We D ENY the petition for review with r e spect to the BIA’s determination that Valenzuela abandoned his status a s a l a wful p e rmanent resident. We DISMISS the petition for review with r e s p e ct to the IJ’s adverse credibility finding and the BIA’s denial of a post-conclusion voluntary departure.

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