Isabella Silva-Blanco v. Eric Holder, Jr. , 568 F. App'x 293 ( 2014 )

Case: 13-60511 Document: 00512633286 Page: 1 Date Filed: 05/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60511 May 16, 2014
Summary Calendar
Lyle W. Cayce
Clerk
ISABELLA SILVA-BLANCO, also known as Isabella Silva,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A078 999 982
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Isabella Silva-Blanco, a native and citizen of Mexico, petitions this court
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
her appeal from the denial of cancellation of removal. The BIA determined
that she did not meet her burden of establishing ten years of continuous
physical presence in the United States in light of her 2006 voluntary departure
to Mexico. Silva-Blanco asserts generally that her testimony and evidence
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-60511 Document: 00512633286 Page: 2 Date Filed: 05/16/2014
No. 13-60511
established that she did not depart the United States in 2006 under a threat
of removal, knowingly accept a voluntary departure, or participate in any other
formal proceeding in which she was determined to be inadmissible.
To establish eligibility for cancellation of removal, “an alien must satisfy
four statutory requirements” under 8 U.S.C. § 1229b(b). Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 214 (5th Cir. 2003). One of the requirements is
continuous physical presence in the United States for the ten-year period
immediately preceding the date of the application for cancellation of removal.
§ 1229b(b)(1)(A). A voluntary departure under threat of immigration
proceedings interrupts the ten-year period. Mireles-Valdez, 349 F.3d at 214,
218. Voluntary departure is “a form of clemency” granted in exchange for an
alien’s agreement “to relinquish his illegal presence.” Id. at 218. It is “obvious
and compelling” that a “voluntary departure, with its attendant understanding
that the alien will cease his illegal presence, is inconsistent with continuous
presence.” Id.
We review the decision of the BIA, not the immigration judge (IJ),
“unless the IJ’s decision has some impact on the BIA’s decision.” Mikhael v.
INS, 115 F.3d 299, 302 (5th Cir. 1997). The substantial evidence standard
applies to factual determinations concerning an alien’s claim of ten years of
continuous presence. Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir.
2003). We will not reverse the BIA’s decision “unless the petitioner provides
evidence so compelling that no reasonable fact-finder could conclude against
it.” Id. (internal quotation marks and citation omitted).
Nothing in Silva-Blanco’s brief or the record compels a finding that she
did not agree to the voluntary departure to Mexico in 2006 under threat of
immigration proceedings. The record shows that she signed a form I-826 prior
to her departure in which she acknowledged her arrest for illegal presence in
2
Case: 13-60511 Document: 00512633286 Page: 3 Date Filed: 05/16/2014
No. 13-60511
the United States and indicated a desire to depart the country in lieu of a
hearing before the Immigration Court. An immigration official certified in
writing that Silva-Blanco read the document and that he read it to her in
Spanish. The record also contains a form I-213, which documents the 2006
determination by the Department of Homeland Security that Silva-Blanco was
inadmissible and that she “requested and was granted” a voluntary departure
to Mexico. Although Silva-Blanco submitted an affidavit to the Immigration
Court in which she asserted that she did not know she was signing an
agreement for voluntary departure when she signed the form I-826, the
affidavit is not “so compelling that no reasonable fact-finder could conclude”
that she accepted a voluntary departure. Garcia-Melendez, 351 F.3d at 661.
Accordingly, the finding by the BIA that Silva-Blanco lacked ten years of
continuous presence is supported by substantial evidence. See id.
Additionally, Silva-Blanco contends that the BIA’s dismissal of her
appeal violated her right to due process because her spouse filed an I-130
petition and she must be allowed to pursue it before her applications for relief
are dismissed. The determination that an alien is not eligible for cancellation
of removal does not implicate the Due Process Clause because “[e]ligibility for
discretionary relief from a removal order is not a liberty or property interest
warranting due process protection.” Mireles-Valdez, 349 F.3d at 219 (internal
quotation marks and citation omitted).
Finally, Silva-Blanco attempts to challenge the BIA’s denial of her
motion to reopen or reconsider its decision. However, she did not petition this
court for review of the denial of the motion; we have no jurisdiction in the
absence of a timely petition for review, so we dismiss that challenge. Navarro-
Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).
DENIED in part; DISMISSED in part.
3