Mendioza v. Ashcroft

*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should not be published and is not precedent except under the limited circumstances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.
1 The Immigration and Naturalization Service (INS) initiated proceedings
against Froylan Mendioza, his wife Oralia Mendioza, and his daughter Valeria
United States Court of Appeals
Fifth Circuit
F I L E D
April 14, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60364
Summary Calendar
FROYLAN MENDIOZA,
Petitioner,
versus
JOHN ASHCROFT, UNITED STATES
ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A76 452 343)
_______________________________________________________
Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.
PER CURIAM:*
Froylan Mendioza,1 a native and citizen of Mexico, petitions for review of the

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Mendioza. Only Mr. Mendioza’s petition for review is before this Court. The
amended petition for review, which included the cases of Mrs. Mendioza and
Valeria, was dismissed as untimely on the INS’s motion.
2
Board of Immigration Appeal’s (BIA) denial of his application for cancellation of
removal. The Immigration Judge (IJ) determined that Mendioza was statutorily ineligible
for the remedy of cancellation because he was voluntarily returned to Mexico by the
Border Patrol in 1994, which interrupted his continuous physical presence in the United
States. See 8 U.S.C. § 1229b(b)(1)(A) (2002). We affirm.
1. In immigration cases, we generally review only the decision of the BIA where it
conducts a de novo review of the record. We review the factual findings of the
BIA for substantial evidence. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th
Cir. 1996). We review its conclusions of law de novo. Id. We accord deference
to the BIA’s interpretation of immigration statutes unless the BIA’s interpretation
is unreasonable. Id. (citing Chevron U.S.A. Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984)).
2. In order to be statutorily eligible for cancellation of removal, the alien must
demonstrate, among other things, that he “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.” 8 U.S.C. § 1229b(b)(1)(A). The burden
of proof of statutory eligibility for cancellation rests on the applicant. 8 C.F.R. §
240.64(a) (2002).

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3
3. Mendioza was taken into custody by the Border Patrol in March or April of 1994
when he crossed the Sierra Blanca checkpoint in Texas during the course of his
employment. No paperwork was completed, and, upon being told by a Border
Patrol agent that he would be detained pending a removal hearing, Mendioza
agreed to voluntarily return to Mexico. Mendioza testified that he intended to
illegally return to the United States when the Border Patrol agents escorted him
across the border. Mendioza walked back across the border into Texas the next
day.
4. An alien “must establish that any period of absence less than 90 days was casual
and innocent and did not meaningfully interrupt the period of continuous physical
presence in the United States.” 8 C.F.R. § 240.64(b)(2). A period of continuous
physical presence is terminated if an alien is removed under an order of
deportation or removal, if an alien voluntarily departs in lieu of deportation or
removal, or if the departure is made for purposes of committing an unlawful act.
Id. § 240.64(b)(3). The BIA determined that Mendioza could not establish 10
years of continuous physical presence in the United States because he departed
under the threat of deportation.
5. The BIA has determined that departure under the threat of deportation constitutes a
meaningful break in the continuous physical presence requirement of 8 U.S.C. §
1229b(b)(1)(A). In re Romelz-Alcaide, 23 I. & N. Dec. 423 (BIA 2002); see also

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2 We recognize that Vasquez-Lopez involved a formal application by
Vasquez-Lopez requesting that the INS not initiate removal proceedings if Vasquez-
Lopez voluntarily departed the United States. See Vasquez-Lopez, 2003 WL
103002, at *2 (citing 8 U.S.C. 1254(e)(1) (1994), repealed by Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, § 308(b)(7), 110 Stat. 3009-
615). However, as the Ninth Circuit noted, a departure under the threat of
deportation cannot be understood as a casual or innocent absence. Id. That court’s
rationale applies equally to cases involving a formal grant of voluntary departure
(now governed by 8 U.S.C. § 1229c (2002)) and cases involving an informal
agreement that if the alien departs of his own will, the Border Patrol agents will not
cause removal proceedings to be initiated against him. Were we to hold otherwise,
the alien who knowingly deceived Border Patrol agents would be in a better position
than the alien who respected the legal process and submitted an application for
voluntary departure in accordance with statutory procedures.
4
Vasquez-Lopez v. Ashcroft, 2003 WL 103002 (9th Cir. 2003) (rejecting the
argument advanced by Mendioza that 8 U.S.C § 1229b(d)(2) mandates that only
lengthy physical absences can affect continuous physical presence).2 The BIA’s
interpretation of 8 U.S.C. § 1229b(b)(1)(A) is not unreasonable. Accordingly,
Mendioza’s petition for review is DENIED.

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