FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE VALADEZ-MUNOZ, 

Petitioner, No. 06-72510

v. D.C. No. 

ERIC H. HOLDER JR., Attorney A075-219-367

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 5, 2010—San Francisco, California

Filed October 28, 2010

Before: Ferdinand F. Fernandez and Barry G. Silverman,

Circuit Judges, and Kevin Thomas Duffy,* District Judge.

Opinion by Judge Fernandez

*The Honorable Kevin Thomas Duffy, United States District Judge for

the Southern District of New York, sitting by designation. 

17923
COUNSEL

Orit Levit, Korenberg & Abramowitz, Sherman Oaks, California; John M. Levant, ASK Law Group, Los Angeles, California, for the petitioner.

Liza Murcia, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

OPINION

FERNANDEZ, Circuit Judge:

Jose Valadez-Munoz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA)

dismissal of his appeal from the Immigration Judge’s (IJ)

order of removal. Specifically, he asserts that the BIA erred

when it determined that he was removable because he had

made a false claim of United States citizenship,1 and because

1

See 8 U.S.C. § 1182(a)(6)(A)(i), (a)(6)(C)(ii). 

17926 VALADEZ-MUNOZ v. HOLDER
he was not entitled to cancellation of removal due to a break

in his continuous physical presence in the United States.2 We

deny the petition.

BACKGROUND

Valadez first entered the United States without inspection

in December of 1987 at the age of sixteen, and resided in the

United States thereafter, although he visited his family in

Mexico for about four months in 1988, three weeks in 1992,

and a month in 1994. In 1994, his brother gave him a State

of Texas birth certificate for Robert Louis Moreno. Valadez

used that birth certificate to obtain a California driver license

in the name of Robert Moreno so that he could more easily

obtain and maintain employment.

In January of 1997, Valadez again left the country for Mexico; he traveled by airplane to Mexico so that his then fiancée

could meet his family. Following his return flight to the Houston, Texas airport on February 15, 1997, he attempted to use

the false Texas birth certificate and the driver license to reenter the United States under the name of Robert Moreno. He

was asked a few questions by the primary immigration

inspector, who, unsatisfied with the responses, sent him to a

secondary inspection officer for intensified inspection.

The secondary inspector asked Valadez questions about his

family based on the birth certificate. After Valadez gave contradictory answers, the inspector left to gather more information about Robert Moreno. When the inspector returned,

Valadez continued to assert that he was Robert Moreno. It

was not until the secondary inspector confronted Valadez with

biographical information about the real Robert Moreno

(height, weight, presence of tattoos), which was inconsistent

with Valadez’s appearance, that he confessed his true identity.

The officer found that he was an excludable alien and gave

2

See 8 U.S.C. § 1229b(b)(1)(A). 

VALADEZ-MUNOZ v. HOLDER 17927
him the option of either seeing an IJ or withdrawing his application for admission and voluntarily returning to Mexico.

Valadez chose the latter option and signed a document which

stated, among other things, “[a]lthough I understand I may

choose to appear before an immigration judge for a hearing in

exclusion proceedings, I request that I be permitted to withdraw my application for admission and return abroad.” That

request was granted, and he returned to Mexico that same day,

but a few days later he reentered the United States without

inspection.

Valadez married his current wife, a United States citizen,

on July 27, 1998. The couple’s first child, a United States citizen, was born on September 29, 1999. Their second child,

also a United States citizen, was born on February 26, 2004.

Valadez applied for adjustment of status in December of

2001, but his application was denied on November 19, 2002,

on the basis that he was ineligible due to his false claim of

United States citizenship. See 8 U.S.C. § 1255(a).

On February 4, 2003, removal proceedings were initiated

against Valadez. The notice to appear charged that he was

subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an

alien present in the United States without being admitted, and

under § 1182(a)(6)(C)(ii) as an alien who has falsely represented himself to be a United States citizen. Following a hearing on August 23, 2004, in which Valadez testified regarding

the alleged 1997 false claim to citizenship incident, the IJ

found that he was removable under § 1182(a)(6)(C)(ii). The

IJ found that Valadez had made a false claim of citizenship

in 1997 when attempting to gain entry, and that he did not

timely retract that false claim.

In November of 2004, Valadez submitted an application for

cancellation of removal based upon hardship to his wife and

children. At the hearing on February 11, 2005, the Department of Homeland Security argued that Valadez was ineligible for cancellation of removal because his withdrawal of his

17928 VALADEZ-MUNOZ v. HOLDER
application for admission at the Houston Airport and subsequent immediate voluntary return to Mexico interrupted his

continuous physical presence in the United States, as a result

of which he had not been here for ten years “immediately preceding the date of” his application for cancellation of

removal. See 8 U.S.C. § 1229b(b)(1)(A). Following the hearing, the IJ determined that “the February 1997 rejection of his

application for admission, followed by his immediate departure from the United States while under custodial control, disrupted the continuity of [his] required 10 years of domicile in

the United States.” As a result, the IJ denied the application

for cancellation of removal.

The BIA dismissed Valadez’s appeal. In so doing, it independently reviewed the IJ’s findings and agreed that Valadez

was not entitled to adjustment of status. See 8 U.S.C.

§ 1255(a). It held that Valadez’s presentation of a Texas birth

certificate to immigration officers constituted a false claim of

United States citizenship. It also held that Valadez did not

timely retract his claim of citizenship because he failed to correct his misrepresentation prior to its exposure as a falsity. It

finally held that his withdrawal of his application for admission and return to Mexico broke his physical presence in the

United States. That precluded him from obtaining cancellation

of removal relief. Valadez timely petitioned this court for

review.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction to entertain Valadez’s petition for

review. See 8 U.S.C. § 1252.

“When, as here, the BIA conducts an independent review

of the IJ’s findings, this court reviews the BIA’s decision and

not that of the IJ.” Poblete Mendoza v. Holder, 606 F.3d

1137, 1140 (9th Cir. 2010). We review findings of fact for

substantial evidence. See Blanco v. Mukasey, 518 F.3d 714,

718 (9th Cir. 2008); see also INS v. Elias-Zacarias, 502 U.S.

VALADEZ-MUNOZ v. HOLDER 17929
478, 481 & n.1, 483-84, 112 S. Ct. 812, 815 & n.1, 817, 117

L. Ed. 2d 38 (1992). We apply “the principles of deference

described in Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 81

L. Ed. 2d 694 (1984)” when we confront “questions implicating ‘[the BIA’s] construction of the statute which it administers.’ ” INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct.

1439, 1445, 143 L. Ed. 2d 590 (1999).

DISCUSSION

Valadez complains of the BIA’s determination that he was

not eligible for adjustment of status, and that he was not eligible for cancellation of removal. We will consider each of

those complaints in turn.

A. Adjustment of Status; False Claim of Citizenship

The parties do not dispute that Valadez cannot obtain

adjustment of status if he is inadmissible. See 8 U.S.C.

§ 1255(a). As we will explain, because of his actions at the

border on February 15, 1997, when he applied to reenter, he

is inadmissible.

There can be no doubt that an alien “who falsely represents,

or has falsely represented, himself or herself to be a citizen of

the United States for any purpose or benefit under this chapter

. . . or any other Federal or State law is inadmissible.” 8

U.S.C. § 1182(a)(6)(C)(ii)(I). Moreover, an alien has the

“burden of establishing . . . clearly and beyond doubt” that he

is “entitled to be admitted and is not inadmissible under section 1182.” 8 U.S.C. § 1229a(c)(2)(A); see also Pichardo v.

INS, 216 F.3d 1198, 1200 (9th Cir. 2000) (same). Beyond

that, “a decision that an alien is not eligible for admission to

the United States is conclusive unless manifestly contrary to

law.” 8 U.S.C. § 1252(b)(4)(C); Pichardo, 216 F.3d at 1200

(same). 

17930 VALADEZ-MUNOZ v. HOLDER
(1) The Citizenship Claim

[1] There is no dispute that when Valadez tried to enter the

country with his fiancé, he knew that he was not legally entitled to do so, but presented Robert Moreno’s birth certificate

so that he could enter without difficulty. Of course, he had

previously assumed Moreno’s identity in order to obtain a

driver license and, thus, obtain work in the United States. He

saw use of the birth certificate as a means of obtaining entry

into the United States when he had no other means available.

The evidence of his claim of citizenship is not quite as strong

as it would have been if Valadez had actually signed a statement admitting that he had falsely claimed citizenship,3

 or

pled guilty to the crime of so doing.4 Nevertheless, it cannot

be said that the BIA’s determination that Valadez intended to

and did make a false claim of United States citizenship at that

time was so unfounded that no “reasonable factfinder” could

so determine. Elias-Zacarias, 502 U.S. at 481, 112 S. Ct. at

815. Indeed, in this civil proceeding we are almost asked to

take a flight of fancy when we are asked to believe that

Valadez was not asserting citizenship at that time.5 We are not

that gormless about life in the real world. That would seem to

be an end to Valadez’s claim, but, he correctly asserts, we

have taken a somewhat different approach in a series of cases

dealing with prosecutions6 for violating a criminal statute.7

3

See Blanco, 518 F.3d at 720-21. 

4

See Pichardo, 216 F.3d at 1201. 

5This seemed so obvious to the BIA that it somewhat overstated the

matter by saying that “individuals who are born within the United States

are automatically considered United States citizens.” Certainly the vast

majority are, but there are also a few exceptions. 

6

See United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004); United

States v. Garcia, 739 F.2d 440 (9th Cir. 1984); Smiley v. United States,

181 F.2d 505 (9th Cir. 1950). 

7

See 18 U.S.C. § 911 (it is a crime for a person to “falsely and willfully

represent[ ] himself to be a citizen of the United States”). It should be

noted that the criminal statute requires the representation to be both false

and willful, while the statute we are dealing with only requires falsity. 

VALADEZ-MUNOZ v. HOLDER 17931
The cases upon which Valadez relies are largely distinguishable on their facts. In Karaouni, 379 F.3d at 1141, 1143,

for example, the actual defect was that Karaouni only stated

that he was a “ ‘citizen or national of the United States,’ ”

and, therefore, did not state that he was a citizen. And in Smiley, 181 F.2d at 506, the defendant once stated that he was a

“citizen,” but did not say of which country. We found that to

be insufficient. Another time, Smiley told a police officer that

he was born in New York, but in circumstances where citizenship may well have been the farthest thing from his mind. Id.

That, too, was insufficient. On the other hand, Garcia, 739

F.2d at 443, applied Smiley in quite different circumstances

— a statement in this country to a border patrol agent. That

case would have more force in our consideration of this case

were Garcia not a criminal prosecution. That, however, leads

to the most salient and determinative distinguishing mark. 

[2] The strongest riposte to Valadez’s thrust is the very

fact that the cases cited were criminal prosecutions where the

defendant had to be found guilty beyond a reasonable doubt

and we, therefore, were very concerned about the quality of

the evidence.8 Here, on the other hand, the burden of persuasion is reversed for, again, the alien has the burden of proving

that he is not inadmissible “clearly and beyond doubt.” 8

U.S.C. § 1229a(c)(2)(A). That makes all the difference in the

world. Valadez was required to clearly show that he was not

inadmissible, and he did not offset the strong inference that

his activities at the border constituted a claim of United States

citizenship. 

[3] In fine, the BIA did not improperly determine that

8Even so, when an alien has actually asserted to a government immigration agent that he was born in this country, one would think that an inference of a citizenship claim would be permissible, depending upon the

other facts in the case. See United States v. Nevils, 598 F.3d 1158, 1163-65

(9th Cir. 2010) (en banc) (clarifying the burden faced by the prosecution

in a criminal case). 

17932 VALADEZ-MUNOZ v. HOLDER
Valadez had “falsely represented himself . . . to be a citizen

of the United States.” Id. § 1182(a)(6)(C)(ii)(I).

(2) Recantation

Valadez next asserts that if he did initially make a false

claim, he retracted it and, therefore, should not have been

found inadmissible. We disagree.

[4] The doctrine of timely recantation is of long standing

and ameliorates what would otherwise be an unduly harsh

result for some individuals, who, despite a momentary lapse,

simply have humanity’s usual failings, but are being truthful

for all practical purposes. See Llanos-Senarillos v. United

States, 177 F.2d 164, 165-66 (9th Cir. 1949). The BIA has

recognized the virtue of applying that principle when an alien

“voluntarily and prior to any exposure of the attempted fraud

corrected his testimony that he was an alien lawfully residing

in the United States.” Matter of M— , 9 I. & N. Dec. 118, 119

(BIA 1960); see also Matter of R— R— , 3 I. & N. Dec. 823,

827 (BIA 1949).

[5] Valadez’s attempt to wrap himself in that cloak of

goodness fails because he overlooks the important limitation

on the principle. As we have pointed out, when a person supposedly recants only when confronted with evidence of his

prevarication, the amelioration is not available. See LlanosSenarillos, 177 F.2d at 165-66. Not surprisingly, the BIA has

taken the same position for immigration cases; it has pointed

out, “recantation must be voluntary and without delay.” Matter of Namio, 14 I. & N. Dec. 412, 414 (BIA 1973). And,

when the so-called retraction “was not made until it appeared

that the disclosure of the falsity of the statements was imminent [, it] is evident that the recantation was neither voluntary

nor timely.” Id.

[6] Here Valadez did not recant until he knew that his false

representations would not succeed in getting him admitted

VALADEZ-MUNOZ v. HOLDER 17933
into the country.9

 It is pellucid that the BIA did not err when

it determined that Valadez could not take advantage of the

timely recantation doctrine.

B. Cancellation of Removal

Valadez asserts that because he made his illegal entry into

the United States in December 1987, and has left for short

periods only, he was “present in the United States for a continuous period of not less than 10 years immediately preceding” his application for cancellation of removal relief. 8

U.S.C. § 1229b(b)(1)(A); see also Gutierrez v. Mukasey, 521

F.3d 1114, 1116-17 (9th Cir. 2008) (same). Of course, the

period was interrupted when he was placed in removal proceedings in February of 1993. See Juarez-Ramos v. Gonzales,

485 F.3d 509, 510 (9th Cir. 2007). He is correct that not every

brief departure will interrupt the period of continuous physical

presence. See 8 U.S.C. § 1229b(d)(2); Landin-Zavala v. Gonzales, 488 F.3d 1150, 1152 (9th Cir. 2007). However, some

absences will interrupt the alien’s physical presence, even if

those absences are brief. See Tapia v. Gonzales, 430 F.3d 997,

998 (9th Cir. 2005).

The BIA has held that when an alien applies for entrance

to this country and that is denied at the point of entry, the rule

is: 

[A]n immigration official’s refusal to admit an alien

9The following exchange occurred when the IJ was questioning

Valadez: 

Q. All right, so you had made an effort to try to be convincing

that you were Robert Moreno. You had two different people that

questioned you and it was only after they had persuaded you that

they could prove you were not Robert Moreno that you finally

said all right I confess. I’m Jose Valadez-Munoz, is that what

happened? 

A. Correct. 

17934 VALADEZ-MUNOZ v. HOLDER
at a land border port of entry will not constitute a

break in the alien’s continuous physical presence,

unless there is evidence that the alien was formally

excluded or made subject to an order of expedited

removal, was offered and accepted the opportunity to

withdraw his or her application for admission, or

was subjected to any other formal, documented process pursuant to which the alien was determined to

be inadmissible to the United States.

In re Avilez-Nava, 23 I. & N. Dec. 799, 805-06 (BIA 2005)

(en banc). Valadez was turned away at a border port of entry,

but he argues that the cases provide for considerably broader

protection than that set forth by the BIA. He essentially

asserts that continuous physical presence may be broken if an

alien is caught within the country and voluntarily departs in

lieu of proceedings pursuant to a formal agreement, but it is

not broken if, as in this case, he is stopped at the border and

ultimately turned away. However, his formulation is far too

simplistic because the mere occurrence of a border stop is

insufficient to answer the continuous physical presence issue.

As explained in further detail below, what the BIA and this

court have actually held is that a knowing and voluntary

departure in lieu of more formal proceedings will interrupt

continuous physical presence. 

[7] On the one hand, the BIA has declared that when “[t]he

alien leaves with the knowledge that he does so in lieu of

being placed in proceedings,” he can have “no legitimate

expectation” that he “could illegally reenter and resume a

period of continuous physical presence.” In re RomalezAlcaide, 23 I. & N. Dec. 423, 429 (BIA 2002) (en banc). We

have declared that to be a reasonable approach, and have

agreed that physical presence is broken when an alien is found

within the country, requests administrative voluntary departure, and is escorted to the border. See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 969, 973-74 (9th Cir. 2003) (per curiam);

see also Gutierrez, 521 F.3d at 1118 (holding that where alien

VALADEZ-MUNOZ v. HOLDER 17935
was caught within the country and voluntary left in lieu of

facing removal proceedings, the period of physical presence

was broken). As the Third Circuit Court of Appeals has held,

the mere fact that the departure occurred when a person was

stopped at the border while attempting reentry does not

change the alchemy. Mendez-Reyes v. Attorney Gen. of the

U.S., 428 F.3d 187, 193 (3d Cir. 2005) (holding that when an

alien withdrew his application for admission in lieu of formal

determination of admissibility and departed, and signed a document to that effect, his period of physical presence terminated). Of course, as we have noted above, the BIA has taken

the same position. See Avilez-Nava, 23 I. & N. Dec. at

805-06.

[8] On the other hand, all agree that continuous physical

presence is not interrupted if a person is merely stopped at the

border and turned away without any more formality. Thus, in

Avilez-Nava, 23 I. & N. Dec. at 800, an alien presented herself

at the border without entry documents, “was taken to a room

where a man explained that she could not enter” and was then

“escorted to a door ‘back across the border’ ” without further

ado. That, said the BIA, did not interrupt her continuous physical presence. Id. at 807. We have also concluded that where

a person is merely “stopped, turned around, and sent back to

Mexico,” that will not suffice to break his continuous physical

presence. Tapia, 430 F.3d at 999, 1004. We also added that

merely fingerprinting or photographing the alien would not

constitute sufficient formality to break his continuous physical presence. Id. at 1003; see also Juarez-Ramos, 485 F.3d at

510-11 (same). The BIA agrees that some formality is

required. See Avilez-Nava, 23 I. & N. Dec. at 807. We have

further, and logically, held that continuous physical presence

would not be interrupted, despite a formal agreement to depart

voluntarily, where misrepresentations might have been made

to the alien and he, at the very least, might not have known

what he was signing. See Ibarra-Flores v. Gonzales, 439 F.3d

614, 619 (9th Cir. 2006). In that instance, it could not be said

that he did “knowingly and voluntarily accept administrative

17936 VALADEZ-MUNOZ v. HOLDER
voluntary departure.” Id. at 620. In other words, nothing was

legally added to a simple turn around. Nevertheless, it is

important to note that we did not declare that the use of procedures at the border where a person departs in lieu of more

extended proceedings were not sufficient to break his period

of physical presence.

Therefore, it cannot be said that the BIA’s decision in

Avilez-Nava set forth a construction of the law of continuous

physical presence that can be dubbed an impermissible construction of a statute which it administers. See AguirreAguirre, 526 U.S. at 424-25, 119 S. Ct. at 1445-46. The only

question that remains is whether the facts of this case demonstrate that the BIA erred here. They do not.

[9] The procedure used in this case may not have been as

formal as an actual completed proceeding that results in an

exclusion order10 or in an expedited removal order,11 but it

was formal nonetheless. There can be no doubt that Valadez

could have been placed in removal proceedings, as he was

told, and that he avoided that by requesting the withdrawal of

his application for admission, a request which did not have to

be granted. See 8 U.S.C. § 1225(a)(4); 8 C.F.R. §§ 235.4,

1235.4.

That Valadez was given the option and exercised it in writing cannot be doubted. He signed a document in which he

expressly agreed that he understood that he could “choose to

appear before an Immigration Judge for a hearing in exclusion

proceedings,” but requested that he “be permitted to withdraw

[his] application for admission and return abroad.” He was

permitted to do just that. Moreover, he presented no evidence

that he was confused about his choices or did not understand

them. On the contrary, he testified that the officer gave him

“an option if [he] wanted to see a Judge or if [he] wanted to

10See Landin-Zavala, 488 F.3d at 1153. 

11See Juarez-Ramos, 485 F.3d at 511. 

VALADEZ-MUNOZ v. HOLDER 17937
departure [sic] voluntarily to Mexico.” Valadez then testified

that he said “[O]kay, can I just go back to Mexico?”

[10] That is, substantial evidence supported the determination that Valadez “was offered and accepted the opportunity

to withdraw his . . . application for admission” and departed

voluntarily. Avilez-Nava, 23 I. & N. Dec. at 805. His continuous physical presence was interrupted.

CONCLUSION

After presiding over all of the proceedings involved here,

the IJ felt certain that Valadez is a good man, but that he had

fallen from grace on the day in question and was not entitled

to relief. We cannot disagree with any of those assessments.

While it may seem somewhat rhadamanthine, because on

February 15, 1997, Valadez did make a false claim of United

States citizenship, he is inadmissible12 and cannot obtain

adjustment of status;13 and because his continuous physical

presence was broken on that same date, he is not eligible for

cancellation of removal either.14

Petition DENIED.

128 U.S.C. § 1182(a)(6)(C)(ii). 

138 U.S.C. § 1255(a). 

148 U.S.C. § 1229b(b)(1)(A). 

17938 VALADEZ-MUNOZ v. HOLDER