United States Court of Appeals

For the Eighth Circuit

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No. 14-3030

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Ivan Israel Torres-Balderas

lllllllllllllllllllllPetitioner

v.

Loretta E. Lynch, 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: September 22, 2015

 Filed: December 8, 2015 

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Before MURPHY, MELLOY, and SMITH, Circuit Judges.

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MELLOY, Circuit Judge,

Ivan Israel Torres-Balderas petitions for review of an order of the Board of

Immigration Appeals affirming an immigration judge's denial of his application for

cancellation of removal. The BIA determined Torres-Balderas failed to establish the

continuous presence requirement and, therefore, was ineligible for cancellation of

removal. Because substantial evidence supports this determination, we affirm the

denial of relief and deny the petition for review.
I. Background

A. General Background

Torres-Balderas, a Mexican native and citizen, entered the United States in

1996 with a border-crossing visa. He then lost the visa and was not eligible to obtain

another. He returned to Mexico several times in the subsequent fourteen years and

reentered the United States several times without inspection. On at least two

occasions, border officials apprehended him when he attempted to enter, or shortly

after he entered, the United States. In both instances, he voluntarily departed but later

reentered without inspection. He later assisted the St. Louis Police Department as

well as the FBI in matters concerning false documents. In exchange, he obtained a

one-year Significant Public Benefit Parole in late 2007 and a one-year Deferral of

Action in early 2009. Eventually, on April 20, 2010, he received a Notice to Appear

charging him with removability. He admitted removability and applied for

cancellation of removal and voluntary departure. 

To be eligible for cancellation of removal, an applicant must prove his

continuous presence in the United States for ten years preceding the Notice to Appear. 

See 8 U.S.C. §§ 1229b(b)(1)(A), 1229b(d)(1). Presence is considered non-continuous

if broken by one absence from the United States in excess of ninety days or any

combination of absences that, in the aggregate, exceed 180 days. See id.

§ 1229b(d)(2). An application for cancellation of removal requires the applicant to

list departure and return dates for trips outside the United States. The applicant also

must sign, swear, and affirm the truth of the application to the best of his knowledge.

In his application, Torres-Balderas initially reported four absences from the

United States after entering in 1996. He did not report any absences specific to his

post-apprehension voluntary departures. The IJ noticed he also had not listed an

absence in relation to his own 2003 wedding in Mexico. The IJ permitted Torres-

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Balderas to amend his application to include this event. With the reported weddingrelated absence, his five reported absences totaled exactly 180 days (not counting the

days of departure or return).1

 

At his hearing, Torres-Balderas presented evidence material to the several

elements a removable alien must establish to prove eligibility for cancellation of

removal. The IJ found him credible but ruled against him as to every element, denied

cancellation of removal, and permitted voluntary departure. Although the IJ found

Torres-Balderas credible, much of his testimony simply lacked clarity and precision,

thus creating ambiguities. Further, the IJ had to make several findings regarding the

duration and dates of trips because Torres-Balderas's imprecise testimony differed

from the dates and durations he reported in his application. The IJ stressed that

Torres-Balderas had sworn to the veracity of his application and that the burden of

proof rested with Torres-Balderas to establish his continuous presence. On appeal,

Torres-Balderas challenged the IJ's ruling as to each element, but the BIA addressed

only the continuous presence requirement. Like the BIA, we address only the

continuous presence requirement. 

B. February 1999/June 2000 Absence

Torres-Balderas testified that he obtained an I-94 card in Mexico during his

1999 trip, re-entered the United States using the card, but was apprehended at a check

point sixty miles inside the United States where officials identified the card as

fraudulent. At that point, he voluntarily returned to Mexico. When questioned about

1

Because we reach the same conclusion in this case regardless of whether we

discount the days of departures and returns, we assume such days are not considered

days absent from the United States. The departure and return dates listed in TorresBalderas's application were as follows: 02/01/1999 to 03/01/1999 (27 days);

02/01/2003 to 03/02/2003 (28 days); 01/01/2004 to 02/01/2004 (30 days); 03/01/2004

to 05/01/2004 (60 days); 01/25/2008 to 03/01/2008 (35 days).

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these events, Torres-Balderas told the IJ that he must have incorrectly reported the

dates of his trip because he was only apprehended once with a fraudulent I-94 card

and his voluntary removal record indicated he had been apprehended on July 4, 2000. 

Based on this testimony, the IJ determined the trip had occurred in June 2000 rather

than February 1999. This determination brought the trip within the ten-year window

preceding the Notice to Appear. The IJ attributed a thirty-day absence to this trip,

stating that the trip occurred in June rather than February but otherwise took place as

reported in the application. 

C. February 2003 Trip

Torres-Balderas listed a twenty-eight day absence related to his wedding. He

testified that he traveled to Mexico and spent time with his future wife every day for

about "a month" prior to their wedding. He also stated, however, that this prewedding visit may have lasted only fifteen to twenty days. He stated that he and his

new wife came to the United States about one week after their wedding. The IJ found

the unclear testimony sufficiently similar to the times listed in the sworn application

to accept the application's description of a twenty-eight-day absence. 

D. January 2004 Trip

The dates listed in the application for a January 2004 trip indicated a thirty-day

absence from the United States. During testimony, Torres-Balderas initially indicated

the duration listed in the application was accurate. He later equivocated as to the

duration of this trip. The IJ, relying on the application and Torres-Balderas's

confirmation of its accuracy, relied on the dates listed in the application because he

was unsure of the exact dates when testifying.

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E. March–April 2004 Trip

The IJ accepted the dates as listed in the sworn application for a sixty-day trip

to Mexico from March 1 through May 1, 2004. These dates were consistent with

Torres-Balderas's testimony, and the IJ noted that a series of hotel bills dated from

May 25, 2004 through July 13, 2004, supported the claim that he had returned to the

United States by May 2004.

F. January–February 2008 Trip

The IJ accepted the dates of the 2008 trip as listed in the application. The dates

of this thirty-five-day trip were consistent with physical evidence of Torres-Balderas's

presence in the United States and consistent with his testimony at the hearing. 

Further, Torres-Balderas indicated he was stopped at the border in relation to this trip,

but the IJ did not add any time to the duration of the trip associated with such a stop.

Based on these individual determinations, the IJ concluded Torres-Balderas had

been outside the United States for "at least 183 days." The BIA affirmed.

II. Discussion

When the BIA adopts the opinion of the IJ with added analysis, we review both

opinions as reflecting the agency's judgment. Setiadi v. Gonzales, 437 F.3d 710, 713

(8th Cir. 2006). The continuous-presence determination is "a nondiscretionary

determination" that is not subject to the jurisdiction-stripping provisions of the REAL

ID Act. Hernandez-Garcia v. Holder, 765 F.3d 815, 816 (8th Cir. 2014). Our review

of the continuous-presence determination is narrowly constrained, however, because

"administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude the contrary." Sanchez-Velasco v. Holder, 593 F.3d

733, 735–36 (8th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)); Hassan v. Gonzales,

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484 F.3d 513, 516 (8th Cir. 2007) ("[F]actual determinations must be upheld if

supported by reasonable, substantial, and probative evidence on the record considered

as a whole."). The applicant bears the burden of proving continuous presence. 

See Sanchez-Velasco, 593 F.3d at 736; 8 U.S.C. § 1229a(c)(4)(A)(i) ("An alien

applying for relief or protection from removal has the burden of proof to establish that

the alien . . . satisfies the applicable eligibility requirements.")

Here, the IJ found absences totaling at least 183 days, thus "breaking" TorresBalderas's continuous presence and rendering him ineligible for cancellation of

removal. In doing so, it appears the IJ may have mistakenly attributed thirty days of 

absence for the June 2000 trip when, if the IJ had accepted the one-month duration as

set forth in the application (as the IJ purported to do), the absence would have been

twenty-nine days. Even taking this reduction into account, the absences still added

up to 182 days, thus exceeding 180 days. Further, in reaching this overall count, the

IJ did not attribute any additional time outside the United States due to the separate

voluntary departure and return after Torres-Balderas's July 4, 2000 apprehension. 

Torres-Balderas nevertheless argues the record does not support the IJ's

determination because the IJ expressly found him credible but refused to rely

exclusively on his hearing testimony. He argues specifically that the IJ imposed an

insurmountable burden of proof and demanded evidence and specificity that was not

reasonably available. In making these arguments, Torres-Balderas fails to

acknowledge that the sworn application itself is evidence and that the IJ is required

to "weigh the credible testimony along with other evidence of record." SanchezVelasco, 593 F.3d at 736 (quoting 8 U.S.C. § 1229a(c)(4)(B)); 8 C.F.R. § 1240.9

("The hearing before the immigration judge, including the . . . applications . . . shall

constitute the record in the case."). Here, in each instance where the IJ relied on the

application rather than the testimony, the corresponding testimony, while deemed

credible, was unclear or imprecise. A positive credibility assessment simply does not

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elevate imprecise or unclear testimony to the level where an IJ must accept it as

defeating more clear and more specific prior sworn statements from the application. 

III. Conclusion

We affirm the BIA and deny the petition for review.

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