# Cite as 26 I&N Dec. 458 (BIA 2014)

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Ab1b230ed04adf171

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Cite as 26 I&N Dec. 458 (BIA 2014)

Interim Decision #3822

Matter of Rosa Isela VELASQUEZ-CRUZ, Respondent
Decided December 10, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien’s departure from the United States following a criminal conviction for illegal
entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C.
§ 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence
required to establish eligibility for cancellation of removal under section 240A(b)(1) of
the Act, 8 U.S.C. § 1229b(b)(1) (2012).
FOR RESPONDENT: Jaime M. Diez, Esquire, Brownsville, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Richard I. Newman,

BEFORE: Board Panel: MALPHRUS and MULLANE, Board Members; LIEBOWITZ,
Temporary Board Member.
LIEBOWITZ, Temporary Board Member:

In a decision dated November 5, 2012, an Immigration Judge found the
respondent removable as an alien present in the United States without being
admitted or paroled under section 212(a)(6)(A)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), and denied her
application for cancellation of removal under section 240A(b)(1) of the Act,
8 U.S.C. § 1229b(b)(1) (2012).1 The respondent has appealed from that
decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was apprehended
in the United States on August 9, 2004. On August 11, 2004, she was
convicted in Federal court following her guilty plea to illegal entry into the
United States under section 275(a)(1) of the Act, 8 U.S.C. § 1325(a)(1)
(2000). She departed the country the day of her conviction but was
The Immigration Judge also denied the respondent’s application for voluntary
departure under section 240B(b)(1) of the Act, 8 U.S.C. § 1229c(b)(1) (2012). The
respondent has not contested the denial on appeal, so the issue is not before us.
1

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Interim Decision #3822

apprehended in the United States later that day.2 On August 13, 2004, she
again pled guilty to illegal entry in violation of section 275(a)(1) and was
sentenced to 30 days of confinement. She subsequently left the country.
A notice to appear was issued on March 15, 2010, alleging that the
respondent arrived in the United States near Brownsville, Texas, on or
about October 1, 2004, and was not then admitted or paroled after
inspection by an immigration officer. At a hearing before the Immigration
Judge, the respondent admitted these allegations and conceded that she
was removable under section 212(a)(6)(A)(i) of the Act. She applied
for cancellation of removal, asserting that she had been present in the
United States since 1988. The respondent claimed that despite departures
in 1998 and 2004, she could establish 10 years of continuous physical
presence prior to the issuance of her notice to appear, as required by section
240A(d)(1) of the Act.
The Immigration Judge held that the respondent’s departures from the
United States following her convictions were pursuant to a sufficiently
formal, documented process to interrupt her continuous physical presence.
In his decision, the Immigration Judge relied on Ascencio-Rodriguez
v. Holder, 595 F.3d 105 (2d Cir. 2010), where an alien’s guilty plea under
section 275(a)(1) of the Act was found to interrupt his continuous physical
presence. He also cited Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012),
which held that an alien’s conviction for possession of a false identification
document while attempting to enter the United States interrupted his
continuous physical presence. The Immigration Judge therefore calculated
that the respondent had only 6 years of continuous physical presence and
was not eligible for cancellation of removal.

II. ISSUE
The issue on appeal is whether an alien’s departure from the
United States following a criminal conviction for illegal entry under section
275(a)(1) of the Act interrupts the 10-year period of continuous physical
presence required to establish eligibility for cancellation of removal under
section 240A(b)(1)(A) of the Act. We hold that a departure subsequent to a
conviction under section 275(a)(1) breaks the alien’s continuous physical
presence for purposes of cancellation of removal.
2

The evidence indicates that the respondent was found approximately 2 miles from the
port of entry in Brownsville, Texas, and was questioned by Border Patrol agents. Each of
the criminal complaints to which the respondent pled guilty state that she “admitted
wading the Rio Grande River near Brownsville, Texas . . . thus avoiding inspection.”
The respondent did not object to the admission of this evidence.

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Interim Decision #3822

III. ANALYSIS
Section 240A(b)(1)(A) of the Act requires an alien to have 10 years of
continuous physical presence to establish eligibility for cancellation
of removal. Under section 240A(d)(2), an alien who has departed the
United States for any period in excess of 90 days or for any periods
exceeding 180 days in the aggregate is considered to have a break in
continuous physical presence. However, this is not the exclusive rule for
determining whether a departure interrupts continuous physical presence.
Matter of Romalez, 23 I&N Dec. 423, 425 (BIA 2002) (en banc); see also
Garcia v. Holder, 732 F.3d 308, 311 (4th Cir. 2013) (stating that the statute
does not provide an exhaustive list of every circumstance terminating an
alien’s continuous physical presence); Mireles-Valdez v. Ashcroft, 349 F.3d
213, 218 (5th Cir. 2003) (same).
In Matter of Romalez, 23 I&N Dec. at 425−26, we held that continuous
physical presence is deemed to end at the time an alien departs the
United States in lieu of the initiation of formal removal proceedings, even if
the period of absence was within the time limits set forth in section
240A(d)(2). We also found in Matter of Avilez, 23 I&N Dec. 799, 805−06
(BIA 2005), that continuous physical presence is interrupted when an
immigration official refuses to admit an alien at the border and
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.3

The Federal courts have addressed other scenarios where they found a
departure sufficient to break continuous physical presence. For example,
in Ascencio-Rodriguez v. Holder, 595 F.3d at 113−14, on which the
Immigration Judge relied, the United States Court of Appeals for the
Second Circuit held that an alien’s departure following a conviction for
illegal entry broke his continuous physical presence. In that case, the alien
was arrested by Border Patrol agents at a checkpoint near Brownsville,
Texas, was charged and convicted the same day pursuant to a guilty plea of
entering the United States illegally in violation of section 275(a)(1) of the
Act, and returned to Mexico. Id. at 107−08.
We concluded in Matter of Avilez, 23 I&N Dec. at 805, that the respondent’s departure
did not interrupt her continuous physical presence because she was only subject to an
informal exchange with an immigration official, as a result of which she was refused
admission at the border port of entry and was simply directed back across the border.
3

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Interim Decision #3822

The court found that this departure broke the alien’s continuous physical
presence because he was “subjected to a ‘formal, documented process’
by which he was determined inadmissible.” Id. at 113 (quoting Matter
of Avilez, 23 I&N Dec. at 805−06). According to the court, the alien’s
conviction for illegal entry under section 275(a)(1) of the Act was the
“functional equivalent” of a finding of inadmissibility under section
212(a)(6)(A)(i) because the two sections almost mirror each other. Id. at
113−14. Specifically, section 275(a)(1) states that that “[a]ny alien who . . .
enters or attempts to enter the United States at any time or place other than
as designated by immigration officers” is guilty of the crime of illegal
entry. Under section 212(a)(6)(A)(i), “[a]n alien . . . who arrives in the
United States at any time or place other than as designated by the Attorney
General” is inadmissible.4
Thus, even though the alien never appeared before an Immigration
Judge or was explicitly found to be inadmissible, his conviction after a
guilty plea to the crime of illegal entry constituted an admission of
facts that rendered him inadmissible. Id. at 114−15. Holding that the
alien’s conviction, coupled with his departure to Mexico, terminated
his continuous physical presence, the court upheld our interpretation
of section 240A(d)(2) of the Act in Matter of Romalez and Matter of Avilez.
Id. at 115; see also Garcia v. Holder, 732 F.3d at 311−12 (finding our
interpretation of section 240A to be reasonable and noting that all of the
circuit courts that considered the issue found our construction to be
permissible) (listing cases).
In Zarate v. Holder, 671 F.3d 1132, the alien returned to Mexico
following his conviction under 18 U.S.C. § 1028(a)(4) (1988) for
possession of fraudulent documents, which he presented while attempting
to enter the United States illegally by falsely claiming United States
citizenship. The Ninth Circuit held that his departure was sufficient to
break his continuous physical presence.
The court reasoned that
the “sequence of events” leading up to the departure—his use of
false identification, as indicated on the Form I-213 (Record of
Deportable/Inadmissible Alien); his false claim of United States citizenship
(a criminal charge that was dismissed); his arrest; his guilty plea and
conviction in Federal court; the 5 days he spent in jail; and his eventual
4

The Second Circuit acknowledged that some convictions for illegal entry under
section 275(a) of the Act may not conclusively determine an alien’s admissibility, noting,
for example, that certain battered women and children may not be deemed inadmissible
under section 212(a)(6)(A)(ii) of the Act. Ascencio-Rodriguez v. Holder, 595 F.3d at
113−14. The respondent has the burden of establishing her eligibility for relief and does
not claim that any exception applies to her. 8 C.F.R. § 1240.8(d) (2014).

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Interim Decision #3822

return to Mexico in immigration custody—“was a ‘far cry’ from a mere
turn-around at the border.” Id. at 1137 (quoting Ascencio-Rodriguez
v. Holder, 595 F.3d at 113).
The respondent argues on appeal that her circumstances are
distinguishable from those of the aliens in Ascencio-Rodriguez and Zarate
because, unlike them, she was not attempting to enter the country when she
was apprehended. Rather, she was already in the United States. However,
the alien in Ascencio-Rodriguez was also arrested within the United States
near Brownsville, Texas. In any case, we find no reason for the outcome of
this case to change based on the fact that the respondent’s apprehension
was not literally at the border.5
The respondent also emphasizes that she was not subject to a finding of
inadmissibility and she never received advisals regarding a possible hearing
before an Immigration Judge. We recognize that the circumstances
surrounding each of the respondent’s departures are less than clear.
However, the dispositive factor in determining that there was a break in the
respondent’s continuous physical presence remains the same—she departed
the United States pursuant to a conviction for illegal entry under section
275(a)(1) of the Act.
The Second Circuit’s reasoning in Ascencio-Rodriguez v. Holder, 595
F.3d at 114, in this regard is persuasive. The court noted that, even though
the evidence of the alien’s removal was less than clear and he was not given
an opportunity to appear before an Immigration Judge, his departure
subsequent to a criminal conviction for illegal entry “was more akin to a
formal removal than the informal interactions at the border that the BIA and
other Courts of Appeals have found insufficient to terminate a period of
continuous physical presence.” Id. at 115 n.8; see also Zarate v. Holder,
671 F.3d at 1137−38 (finding that because the alien appeared before a
Federal judge and pled guilty to a crime related to his entry, he had received
sufficient process to establish a break in continuous physical presence, even
without a finding equivalent to an inadmissibility determination or an
opportunity to appear before an Immigration Judge).
5

We note that regardless of whether an alien who illegally enters the United States is
caught at the border or inside the country, he or she will still be required to prove
eligibility for admission. See section 235(a)(1) of the Act, 8 U.S.C. § 1225(a)(1) (2012)
(stating that an alien who is present in the United States without having been admitted is
deemed to be an applicant for admission); see also Ascencio-Rodriguez v. Holder, 595
F.3d at 108−09 n.3 (noting that “[a]liens not admitted are treated as ‘applicants for
admission’” and “are ‘deemed to be legally at the border’ and bear the burden of
establishing their entitlement to admission”) (citations omitted)).

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Interim Decision #3822

Based on our de novo review of the legal issue presented, we agree with
the Immigration Judge that the respondent’s departures following her
convictions for illegal entry under section 275(a)(1) of the Act served to
break her continuous physical presence. 8 C.F.R. § 1003.1(d)(3)(ii) (2014).
The respondent appeared in Federal criminal court following both arrests
and, each time with the assistance of counsel, she pled guilty to a crime that
is sufficient to establish her inadmissibility. After each conviction, she
departed the United States and immediately reentered without permission.
Under these circumstances, “[t]here is no legitimate expectation . . . that an
alien could illegally reenter and resume a period of continuous physical
presence.” Matter of Romalez, 23 I&N Dec. at 429. The sequence of
events leading to the respondent’s departure in each case is a “far cry” from
a mere turnaround at the border and is sufficient to constitute a break
in continuous physical presence. Zarate v. Holder, 671 F.3d at 1137;
Ascencio-Rodriguez v. Holder, 595 F.3d at 113.
We conclude that each of the respondent’s departures following her
convictions was pursuant to a “formal, documented process” that resulted
in a break in her continuous physical presence. Matter of Avilez, 23 I&N
Dec. at 805. To hold otherwise would allow aliens to continue to accrue
continuous physical presence in a manner that is “contrary to the objectives
of [the immigration] laws and the [Board’s] relevant decisions.”
Ascencio-Rodriguez v. Holder, 595 F.3d at 114 (citing Matter of Avilez,
23 I&N Dec. at 806; Matter of Romalez, 23 I&N Dec. at 429); see also
Zarate v. Holder, 671 F.3d at 1138.

IV. CONCLUSION
The respondent’s departures following her convictions for illegal entry
pursuant to section 275(a)(1) of the Act interrupted her continuous physical
presence because they were pursuant to a formal, documented process
during which she admitted sufficient facts to establish her inadmissibility.
Consequently, we agree with the Immigration Judge that the respondent has
not met her burden to establish 10 years of continuous physical presence.
She is therefore ineligible for cancellation of removal under section
240A(b)(1)(A) of the Act. The Immigration Judge properly pretermitted
the respondent’s application for that relief without addressing the other
eligibility requirements. Accordingly, the respondent’s appeal will be
dismissed.
ORDER: The appeal is dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3Ab1b230ed04adf171. Public record. Not legal advice.