IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Immigration Appeals

(“BIA”) determination that he abandoned his status as a lawful 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 petition for

review.

United States Court of Appeals

Fifth Circuit

F I L E D

September 13, 2013

Lyle W. Cayce

Clerk

* 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.

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FACTS AND PROCEEDINGS

Valentin Jose 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 Texas of aiding and abetting an alien in violation of 8

U.S.C. § 1325 and 18 U.S.C. § 2(a), and was sentenced to sixty days in prison

and five years of probation. Later in 1996 he was arrested in Missouri and

charged with possession and attempted trafficking of a controlled substance

after the car he was driving was found to contain sixty to seventy pounds of

marijuana; he was released on bond. After he failed to appear at a scheduled

hearing in September 1997, his bond was forfeited.1 Valenzuela also was

arrested in 2001 for driving under 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”) began removal

proceedings in 2006 under 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 years of adjusting status. In the removal proceedings, Valenzuela

conceded removability, and instead filed a request for either a waiver of

inadmissability or a post-conclusion voluntary departure. 

Though he did not appear to disclose the 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 July 1997 to September 1999 in Mexico. 

Valenzuela claimed that he traveled 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 Missouri charges were dismissed after he prevailed on a motion to suppress in

Missouri state court in November 2008.

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but was forced to remain in Mexico to care for his sick father and work on the

family farm. Valenzuela stated that he finally returned to the United States in

September 1999 when one of his brothers was able to take over the care of his

father. Valenzuela also cited the desire to earn money to support his pregnant

wife as 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 on two independent grounds. 

First, the IJ found that Valenzuela voluntarily abandoned his LPR status 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 Mexico shortly

after being released on bond for drug trafficking charges, married a Mexican

citizen, remained in Mexico uninterrupted for over two years, maintained no

residence or bank account in the United States, 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 coincidental that

[Valenzuela] was released on bond on incredibly serious drug charges, then fled

the United States and remained gone for a period of two and a half years during

the pendency of his drug trafficking charges.” Second, in the alternative, the IJ

entered an adverse credibility finding against Valenzuela, and determined that

Valenzuela had failed to establish his eligibility for relief. The IJ pointed to

Valenzuela’s failure to disclose fully his departure from the United States, a

potential lack of candor about criminal arrests, and other inconsistencies in

Valenzuela’s account of events as justifying the adverse credibility finding. 

With respect to Valenzuela’s request for a post-conclusion voluntary

departure, the IJ relied on the adverse credibility finding to deny relief. The IJ

reasoned that Valenzuela’s lack of candor made Valenzuela undeserving of a

favorable exercise of discretion. 

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Valenzuela timely appealed to the BIA, and the BIA dismissed the appeal 

in a written opinion. The BIA 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 burden on DHS to

demonstrate that Valenzuela abandoned his LPR status. The BIA found no clear

error in the IJ’s factual findings, or in 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 return to

the United States but was forced to remain in Mexico to care for his father, the

BIA noted the lack of any corroborating documentation or detailed testimony to

support Valenzuela’s claims that his father needed medical care, as well as the

fact that Valenzuela’s departure from the United States “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 found it unnecessary to resolve the IJ’s adverse

credibility findings against Valenzuela. To determine whether Valenzuela was

entitled to a post-conclusion voluntary departure, the BIA balanced the positive

and negative equities in the case. After noting numerous factors favoring a

positive exercise of discretion—Valenzuela’s lengthy residence in the United

States, his relatives and children in the United States, his history of

employment, and his regular payment of income taxes in the United States—the

BIA concluded that those factors were outweighed by Valenzuela’s criminal

convictions and “his general disrespect of the law of this country in evading

criminal proceedings over an extended period of time,” and denied a postconclusion voluntary departure. 

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STANDARD OF REVIEW

When considering a petition for review, this court reviews only the 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 decision if there is no error of law and if reasonable,

substantial, and probative evidence on 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 reverse 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 on appeal. First, Valenzuela argues

that the BIA and IJ wrongly determined that he abandoned his LPR status as

a result of his extended stay in Mexico. Second, Valenzuela argues that the IJ

erred in entering an adverse credibility finding against him. Third, Valenzuela

argues that the BIA erred in denying Valenzuela a post-conclusion voluntary

departure. 

A. The BIA Did Not Err In Determining That Valenzuela Abandoned His

Status As A Lawful Permanent Resident.

Valenzuela argues that the BIA and IJ wrongly determined that he

abandoned his LPR status. Valenzuela contends that the BIA and IJ focused

solely on the time he was absent from the country, improperly placed the burden

on him to demonstrate that he had not abandoned his status, and failed to 

consider the totality of the circumstances surrounding his absence from the

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United States. Valenzuela claims that, under the correct legal standard, his

colorable claim 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 returning resident alien, an alien must have acquired

[LPR] status in accordance with our laws, must have retained that status from

the time that [he] acquired it, and must be returning to an unrelinquished lawful

permanent residence after a temporary visit abroad.” Moin, 335 F.3d at 418

(internal quotation marks omitted). A “temporary visit abroad” is not defined

only in terms of elapsed time; a trip is “temporary” “if (a) it is for a relatively

short period, fixed by some early event; or (b) the trip will terminate upon the

occurrence of an event that has a reasonable possibility of occurring within a

relatively 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, uninterrupted intention to return to the United

States during the entirety of his visit.” Singh v. Reno, 113 F.3d 1512, 1514 (9th

Cir. 1997) (internal quotation marks and citation omitted). In ascertaining the

alien’s intent, the relevant question is not whether the alien ultimately intended

to return to the United States but whether he intended to return “within a

relatively short period.” Moin, 335 F.3d at 419 (internal quotation marks

omitted). Consideration should be given when assessing intent to the totality of

the alien’s circumstances including: the alien’s family ties, property holdings,

and business affiliations in the United States, as compared to his country of

origin. Id. 

The BIA articulated and applied the correct legal standard. Multiple

points in the BIA’s opinion belie Valenzuela’s contention that the BIA failed to

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consider the totality of the circumstances. The BIA noted that “abandonment

is not determined by the length of the absence alone,” and proceeded to consider

numerous factors (such as Valenzuela’s job, criminal, and tax 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 similarly flawed. As a

preliminary matter, his brief only alleges that the “IJ erred in shifting the

burden of proof from the government to him,” and does not allege that the BIA

improperly did so. As such, we need not address it. See, e.g., Mikhael, 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 case where 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 stated that they placed the burden on the DHS,

and a review of the record contains nothing to suggest that the burden was

placed on Valenzuela to demonstrate his entitlement to relief. Valenzuela’s

general inability to prove a significant connection to the United States or

demonstrate his father’s need for medical care only became an issue after the

Government convinced the IJ and the BIA that Valenzuela left the country to

flee the Missouri drug trafficking proceedings, and further, that he had no

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 that Valenzuela

failed to rebut.

2) The BIA’s Determination Is Supported By Substantial Evidence

The Government had the burden in the administrative proceedings of

demonstrating with “clear, unequivocal, and convincing evidence” that

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Valenzuela abandoned his status as a lawful permanent resident in the United

States. Moin, 335 F.3d at 419. On appellate review under the substantial

evidence standard, we must determine whether Valenzuela “provides evidence

so compelling that no reasonable fact-finder could conclude” that the

Government met its factual burden. We conclude that a reasonable fact-finder

could agree with the BIA’s determination. Given the temporal proximity of

Valenzuela’s pending Missouri drug prosecution to his departure from the

United States, a reasonable jurist could conclude that the clear and unequivocal

evidence indicated that Valenzuela did not maintain a continuous desire to

return to the United States within a relatively short period because the evidence

indicates that Valenzuela was leaving the country to flee criminal proceedings. 

Valenzuela’s substantial evidence challenge accordingly fails. 

B. We Do Not Review Valenzuela’s Challenge To The Immigration

Judge’s Adverse Credibility Findings.

Valenzuela’s brief discusses potential errors 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 rely on the adverse credibility finding to deny relief. As such, we do not

address Valenzuela’s arguments here because this court only reviews the

decisions of the BIA. See, e.g., Mikhael, 115 F.3d at 302. 

C. We Lack Jurisdiction To Review The BIA’s Denial Of A PostConclusion Voluntary Departure.

Valenzuela argues that the BIA erred in denying him a post-conclusion

voluntary departure. Under the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, this court “lack[s] jurisdiction to review his claim that

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the BIA erred in denying his request for 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 cannot review his arguments regarding the BIA’s denial of a

post-conclusion voluntary departure.

CONCLUSION

We DENY the petition for review with respect to the BIA’s determination

that Valenzuela abandoned his status as a lawful permanent resident. We

DISMISS the petition for review with respect to the IJ’s adverse credibility

finding and the BIA’s denial of a post-conclusion voluntary departure. 

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