Serrano Gutierrez v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDEL SERRANO GUTIERREZ; MARTHA 
CERVANTES; ALMA JANETH SERRANO
CERVANTES, No. 04-75650
Petitioners, Agency Nos.
v.  A75-304-498
A75-304-499
MICHAEL B. MUKASEY, Attorney A75-304-501
General,
Respondent.

FIDEL SERRANO GUTIERREZ; MARTHA 
CERVANTES; ALMA JANETH SERRANO No. 06-70551
CERVANTES, Agency Nos.
Petitioners,
v.  A75-304-498
A75-304-499
MICHAEL B. MUKASEY, Attorney A75-304-501
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 4, 2008—Pasadena, California
Filed April 2, 2008
Before: J. Clifford Wallace, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould
3435
GUTIERREZ v. MUKASEY 3437
COUNSEL
Simon Salinas and Carlos A. Cruz, Tustin, California, for the
petitioners.
Stacy S. Paddack, Hillel R. Smith, and Jeffery R. Leist, U.S.
Department of Justice, Civil Division, Washington, D.C., for
respondent United States of America.
3438 GUTIERREZ v. MUKASEY
OPINION
GOULD, Circuit Judge:
Fidel Serrano Gutierrez (“Serrano”) petitions for review of
a final order issued by the Board of Immigration Appeals
(“BIA”), summarily affirming the Immigration Judge’s (“IJ”)
denial of his application for cancellation of removal.1 In this
opinion we address whether Serrano’s departure from the
United States in 1990 interrupted the accrual of his continu-
ous physical presence for purposes of his application for can-
cellation of removal. We have jurisdiction pursuant to 8
U.S.C. § 1252. We determine that Serrano’s departure inter-
rupted his accrual of continuous physical presence, and thus
deny the petition.
I
In August of 1997 Serrano was served with a notice to
appear (“NTA”) and was charged with removability as being
an alien in the United States without having been admitted or
paroled. Serrano has conceded removability under those
charges, but has applied for cancellation of removal.2 Serrano
1
The petitions of Serrano’s wife Martha Cervantes Serrano and their
daughter Alma Serrano-Cervantes for review of the IJ’s denial of their
applications for cancellation of removal, as well as all three petitioners’
petition for review of the BIA’s denial of their motion to reopen, are the
subject of a separate, unpublished memorandum disposition filed contem-
poraneously with this opinion.
2
Under INA section 240A(b)(1) the Attorney General may cancel
removal of an alien deportable from the United States if the alien: “(A) has
been physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application; (B)
has been a person of good moral character during such period; (C) has not
been convicted of an offense under [section 212(a)(2), 237(a)(2), or
237(a)(3)] . . . ; and (D) establishes that removal would result in excep-
tional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1229b(b)(1).
GUTIERREZ v. MUKASEY 3439
illegally entered the United States in December of 1983 and
has lived and worked here since then, though some time in the
summer of 1990 he briefly returned to Mexico.
At the hearing on Serrano’s application for cancellation of
removal, the IJ questioned Serrano about his brief return to
Mexico to determine whether it had interrupted Serrano’s
accrual of the ten years of continuous physical presence that
is required for cancellation of removal. See 8 U.S.C.
§ 1229b(b)(1)(A). Serrano testified that he had been “de-
ported in ‘90,” clarifying that at some time in 1990 he had
gone “to work and Immigration caught [him] at work.” He
said that he had been detained for one day, that immigration
officials had sent him back to Mexico, and that he thought he
returned to the United States a couple of days later. When
asked whether he had been given an opportunity to go before
an immigration court, Serrano responded, “Yes, but since it
was so fast I just signed the voluntary departure and that was
it.” Asked a second time, he said, “I think so, maybe, but all
I know is I just had to sign and leave.”
The IJ denied Serrano’s application for cancellation of
removal, concluding that Serrano did not establish adequate
continuous physical presence. The IJ applied In re Romalez-
Alcaide, 23 I&N Dec. 423 (BIA 2002) (en banc), to determine
that Serrano’s continuous physical presence was interrupted
when Serrano was compelled—as the IJ concluded was the
case, based on Serrano’s testimony—to depart in 1990 under
the threat of removal proceedings. The IJ noted that Serrano
had been given the opportunity to go before an IJ at that time
but had chosen to leave voluntarily instead. Because of this
alleged administrative voluntary departure, Serrano fell three
years short of the required ten years’ continuous physical
presence. Though denying Serrano’s application for cancella-
tion of removal, the IJ granted Serrano voluntary departure.
Serrano appealed to the BIA, which affirmed the IJ without
opinion. Serrano in his petition for review asks us to review
the denial of his application.
3440 GUTIERREZ v. MUKASEY
II
Under the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), we lack jurisdiction
to review any discretionary judgment regarding certain com-
ponents of the granting of relief for cancellation of removal.
See 8 U.S.C. § 1252(a)(2)(B). However, we have jurisdiction
to review whether an alien has met the “ten years of continu-
ous physical presence requirement because this is an objec-
tive, factual inquiry.” Falcon Carriche v. Ashcroft, 350 F.3d
845, 853 (9th Cir. 2003) (internal quotation marks omitted).
We must accord Chevron deference to the BIA’s statutory
interpretations of the Immigration and Naturalization Act
(“INA”). INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)
(citing Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984)).
We review for substantial evidence the agency’s decision
concerning an applicant’s establishment of ten years of con-
tinuous physical presence in the United States. See Lopez-
Alvarado v. Ashcroft, 371 F.3d 1111, 1115 (9th Cir. 2004),
amended by 381 F.3d 847 (9th Cir. 2004). Here, because the
BIA affirmed the IJ’s decision without opinion, the IJ’s deci-
sion constitutes the final agency action for purposes of our
review. See 8 C.F.R. § 1003.1(e)(4)(ii); see also Tapia v.
Gonzales, 430 F.3d 997, 999 (9th Cir. 2005). In reviewing for
substantial evidence, we follow this rule: “To obtain reversal
under this standard, the petitioner must demonstrate that the
evidence not only supports that conclusion, but compels it.”
Lopez-Alvarado, 371 F.3d at 1115 (internal quotation and
citation omitted).
III
[1] In order to be eligible for cancellation of removal, an
applicant must first have “been physically present in the
United States for a continuous period of not less than 10 years
immediately preceding the date of such application . . . .” 8
GUTIERREZ v. MUKASEY 3441
U.S.C. § 1229b(b)(1)(A). Service with an NTA halts an
alien’s accrual of continuous physical presence. 8 U.S.C.
§§ 1229b(d)(1). Because Serrano was served with the present
NTA in August of 1997, he would need to establish continu-
ous physical presence in the United States since August of
1987 to meet the requirements of section 1229b(b)(1)(A). If
Serrano’s brief trip to Mexico in the intervening period inter-
rupted his accrual of presence, then Serrano is statutorily inel-
igible for cancellation of removal.
[2] A regulatory section governing the interruption of con-
tinuous physical presence provides that “a period of continu-
ous physical presence is terminated whenever . . . the alien
has voluntarily departed under the threat of deportation . . . .”
8 C.F.R. § 240.64(b)(3) (2003). In In re Romalez-Alcaide, 23
I & N Dec. 423, 429 (BIA 2002) (en banc), the BIA held, in
accordance with this regulation, that an alien who voluntarily
departs under threat of deportation breaks his or her continu-
ous physical presence period for cancellation of removal. In
Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir. 2003)
(per curiam), we upheld the BIA’s interpretation in Romalez,
stressing that to declare otherwise would be inconsistent with
the very purpose of removal.
Serrano does not contest this general proposition but rather
its applicability to him, arguing that his return to Mexico
should not interrupt his continuous physical presence,
Romalez notwithstanding. Serrano cites to an Eighth Circuit
case, Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir.
2005), in which our sister circuit stated, “before it may be
found that a presence-breaking voluntary departure occurred,
the record must contain some evidence that the alien was
informed of and accepted its terms.” Id. at 908. Since the fil-
ing of petitioners’ initial brief, we have also adopted this prin-
ciple. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th
Cir. 2006) (holding that an expressed and understood threat of
deportation is requisite to presence-breaking voluntary depar-
ture).
3442 GUTIERREZ v. MUKASEY
Serrano argues that he was not advised of his privileges and
rights and did not knowingly agree to administrative volun-
tary departure in 1990, that he did not have the opportunity to
be heard by an immigration judge, and that he therefore did
not interrupt the accrual of continuous physical presence. Yet
Serrano’s account of the circumstances of his departure per-
suasively suggests otherwise. Serrano testified to the IJ that he
was caught in a work raid conducted by the then-INS, and,
crucially, admitted twice that he had been given the opportu-
nity to go before an immigration court and had explicitly
rejected it and signed a voluntary departure document instead,
suggesting that he preferred removal because it was “faster.”
[3] Serrano’s case is thus critically different from cases
where we have found that substantial evidence did not support
the conclusion that the petitioner gave knowing and voluntary
consent. In this case, Serrano’s own testimony establishes that
he was given a choice between deportation proceedings and
leaving voluntarily, and that he chose the latter. He alleges no
misrepresentation by immigration officials, nor any other cir-
cumstances to indicate that his rejection of the offer to be
heard by an IJ constituted anything other than a knowing and
voluntary agreement to depart in lieu of removal proceedings.
Serrano’s testimony is substantial evidence supporting the
conclusion that Serrano knowingly and voluntarily consented
to such voluntary departure. By contrast in Ibarra-Flores, 439
F.3d at 620, the petitioner gave plausible testimony that he did
not knowingly and voluntarily accept administrative voluntary
departure because of the misrepresentations of immigration
officers. Based on this testimony, we concluded that substan-
tial evidence did not support the IJ’s determination that the
petitioner’s decision to accept voluntary departure was know-
ing and voluntary. Id. at 619. See also Tapia v. Gonzales, 430
F.3d 997, 1002 (9th Cir. 2005) (holding that petitioner—who
was merely turned away at the border when trying to reenter
the United States after a brief departure, and who did not
depart pursuant to a formalized process resulting in an agree-
ment to depart and not to return unless in accordance with the
GUTIERREZ v. MUKASEY 3443
legal entry process—did not interrupt his accrual of continu-
ous physical presence). We hold here that Serrano’s testimony
regarding his acceptance of the opportunity to depart from the
United States voluntarily, after having been apprehended in a
workplace raid, combined with his rejection of an opportunity
to go before an IJ, constitutes substantial evidence of a know-
ing and voluntary consent to administrative voluntary depar-
ture in lieu of removal proceedings.
[4] “[I]f voluntary departure is accepted in lieu of being
placed in deportation or removal proceedings, the alien agrees
to relinquish the right to present a claim for relief that might
otherwise allow the alien to stay in the United States.” Ibarra-
Flores, 439 F.3d at 620. Because the record contains substan-
tial evidence that immigration officials returned Serrano to
Mexico in 1990 under circumstances that constitute voluntary
departure under threat of removal proceedings, we reject Ser-
rano’s argument that his encounter with immigration officials
in 1990 and his resulting voluntary departure from the United
States did not interrupt his accrual of presence. Instead, sub-
stantial evidence supports the IJ’s determination that Serrano
voluntarily departed in 1990 in lieu of facing removal pro-
ceedings and, as a result of this departure, Serrano has failed
to make a prima facie case for cancellation of removal.
PETITION FOR REVIEW DENIED.