Misael Acevedo-Aguilar v. MICHAEL MUKASEY, Attorney General

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael B. *
Mukasey has been substituted for former Attorney General Alberto R.
Gonzales.
United States Court of Appeals
For the First Circuit
No. 07-1261
MISAEL ACEVEDO-AGUILAR,
Petitioner,
v.
MICHAEL MUKASEY, Attorney General, *
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Cyr, Senior Circuit Judge,
and Howard, Circuit Judge.
Peter Darvin on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, and Kathryn L. Deangelis,
Trial Attorney, Office of Immigration Litigation, United States
Justice Department, on brief for respondent.
February 15, 2008

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HOWARD, Circuit Judge. Misael Acevedo-Aguilar, a native
and citizen of Mexico, petitions for review of a Board of
Immigration Appeals ("BIA") order affirming the decision of an
immigration judge ("IJ") that he was ineligible for cancellation of
removal because he was not continuously present in the United
States for the requisite 10 years prior to his application, as
required by section 240A(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b. We deny the petition.
STANDARD OF REVIEW
Where, as here, the BIA adopts and affirms a portion of
the IJ's decision, while also providing additional analysis of its
own, we directly review the adopted portions of the IJ decision,
Sulaiman v. Gonzalez, 429 F.3d 347, 350 (1st Cir. 2005), as well as
the BIA's additions, Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.
2006). We review the decisions of the IJ and BIA according to a
"substantial evidence" standard, under which we will uphold the
decisions if they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Carcamo-
Recinos v. Ashcroft, 389 F.3d 253, 256 (1st Cir. 2004) (citation
and internal quotation omitted). Under this deferential standard,
we will reverse only if "the record evidence would compel a
reasonable factfinder to make a contrary determination." Stroni,
454 F.3d at 87 (citation omitted).

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FACTUAL BACKGROUND AND LEGAL ANALYSIS
The petitioner claims to have first entered the United
States without inspection in August 1992, when he was 16 years old,
by crossing the Mexican border. In March 2001, he married Kobi
Littlefield, the mother of his then one-year old daughter, and
shortly thereafter filed an I-485 adjustment of status application
containing an I-130 immediate relative visa petition, filed by his
wife. As a result of marital discord which eventually culminated
in divorce, Ms. Littlefield withdrew her I-130 petition, which led
to the denial of Acevedo-Aguilar's I-485 application in November
2001.
On August 7, 2003, federal immigration authorities issued
Acevedo-Aguilar a Notice to Appear, charging him with removability.
He eventually conceded removability, but filed an application for
cancellation, pursuant to 8 U.S.C. § 1229b(b), under which removal
of a deportable alien may be cancelled if, inter alia, he "has been
physically present in the United States for a continuous period of
10 years immediately preceding the date of [his] application."
Such "physical presence time" stops accruing upon service of a
notice to appear. 8 U.S.C. § 1229b(d)(1). In addition, an alien
departing the United States for "any period in excess of 90 days or
aggregate periods exceeding 180 days" is considered to have failed
to "maintain a continuous physical presence in the United States."
8 U.S.C. § 1229b(d)(2).

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Under this construct for cancellation of removal,
Acevedo-Aguilar's burden was to prove that he was continuously
present in the United States for the 10 years preceding August 7,
2003. The dispute in this case centers on a period in 1998 when he
returned to Mexico to attend his brother's wedding. He testified
that he left the United States on March 20, 1998, and submitted
into evidence an airline ticket receipt bearing that date. Thus,
he would have had to return to this country by June 18, 1998, to
fall within the 90 day rule.
Pinpointing the petitioner's return date, however, is no
simple task, since he reentered to the United States by illegally
crossing the border at Nogales, Arizona. Weighing heavily against
him was the I-485 application for adjustment he submitted in 2001,
in which he noted that his last entry into the United States was
July 9, 1998, 21 days outside the allowable time window. He
testified however, that he returned to the United States on June
10, 1998, which would be within the allowable time. He explained
that the discrepancy was due to confusion about his departure date,
which caused him to put the wrong date on the I-485. He testified
that he knew he was away for approximately two months and a few
days after his brother's April 18 wedding, so when his mother
showed him the plane ticket with the March departure date, he
realized that his correct return date was in June, not July.

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Because we resolve this petition on the issue of Acevedo-Aguilar's 1
1998 absence from the United States, we do not reach his other
claims of error.
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In addition to his own testimony, Petitioner's mother
testified about his absence from the United States in 1998. She
did little to clear up the confusion, however, as she offered three
different accounts of Acevedo-Aguilar's return, testifying first
that she last saw him in Mexico on May 10, 1998, prior to an
expected border crossing between May 10 and June 10. She also
testified that her son was in her house in Mexico between May 10
and June 10, and later stated that he crossed the border into the
United States on June 5.
In finding that Acevedo-Aguilar had not met his burden of
proving his continuous presence in the United States, the IJ cited
the discrepancy between petitioner's testimony regarding his
absence, the plane ticket receipt and his sworn I-485 form. The
BIA adopted that finding and placed additional reliance on the
inconsistent testimony of petitioner's mother regarding
petitioner's whereabouts between March and July 1998. As these
conclusions are supported by substantial record evidence, the
petition for review is denied.1

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