Betancourt-Parga v. Gonzales

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 8, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60220
Summary Calendar
BAUDELIO BETANCOURT-PARGA,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY,
Respondent.
--------------------------------------------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A91 246 157
--------------------------------------------------------
Before WIENER, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Baudelio Betancourt-Parga, a native and citizen of Mexico, has filed a petition for review
from a final order denying his request for suspension of deportation. Betancourt argues that the BIA
failed to give proper consideration to the factors announced in Rosenberg v. Fleuti, 374 U.S. 449
(1963) in determining his eligibility for suspension. He also argues that there was not substantial
evidence to support the BIA’s determination that he failed to demonstrate seven years of continuous

-- 1 of 2 --

-2-
physical presence in the United States prior to the commencement of the deportation proceedings.
Betancourt’s reliance on the application of the Fleuti doctrine in determining his continual
physical presence is misplaced because that holding has been superceded by the enactment of certain
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provisions in cases involving
suspension of deportation. See Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir. 2003).
Betancourt has not rebutted the evidence that he spent in excess of 180 days in the aggregate
outside of the United States prior to being served with the order to show cause. Thus, he is
statutorily ineligible for suspension of deportation. See Gonzalez-Torres v. INS, 213 F.3d 899, 902
(5th Cir. 2000); 8 U.S.C. § 1229b(d)(1), (2).
Because Betancourt is statutorily ineligible for suspension of deportation, whether he was
found to have a continual physical presence since 1982 under an amnesty program qualifying him for
permanent residency has no relevance to the determination of his continual physical presence for
suspension of deportation purposes. Nor can Betancourt take advantage of his continuous presence
in the United States since his 1992 departure. See McBride v. INS, 238 F.3d 371, 377 (5th Cir.
2001)
The petition for review is DENIED.

-- 2 of 2 --