Ramirez Andrade v. Holder , 332 F. App'x 978 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 18, 2009
No. 08-60517
Summary Calendar Charles R. Fulbruge III
Clerk
JUAN CARLOS RAMIREZ ANDRADE,
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. A79 559 273
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Carlos Ramirez Andrade appeals the Board of Immigration Appeals’s
(BIA’s) decision denying his applications for adjustment of status and
cancellation of removal. Andrade first argues that, as an Immigration and
Nationality Act (INA) § 245(i) applicant, he is exempt from INA
§ 212(a)(9)(C)(i)(I), 8 U.S.C. § 1182(a)(9)(C)(i)(I), and is thus statutorily eligible
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60517
to seek adjustment of status. This argument is foreclosed by Mortera-Cruz v.
Gonazles, 409 F.3d 246, 254-56 (5th Cir. 2005).
Andrade additionally argues that he is statutorily eligible for cancellation
of removal under INA § 240A(b), 8 U.S.C. § 1229b(b)(1), because his 1998
encounter with immigration officials did not end his accrual of continuous
physical presence. It was Andrade’s burden to establish 10 years of continuous
physical presence. See 8 C.F.R. § 1240.8(d). Given the lack of evidence
regarding the circumstances of his 1998 departure on account of his purposeful
deception, as well as his three-hour detention and questioning prior to his
departure, substantial evidence supports the immigration judge’s finding that
Andrade did not carry his burden of proof on this issue and is thus ineligible for
cancellation of removal. See Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th
Cir. 2003).
PETITION DENIED.
2