Gonzalez-Calderon v. Mukasey , 294 F. App'x 966 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 6, 2008
No. 07-60628
Summary Calendar Charles R. Fulbruge III
Clerk
REYNALDO GONZALEZ-CALDERON
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 044 202
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Reynaldo Gonzalez-Calderon (Gonzalez), a Mexican citizen, petitions for
review of the decision of the Board of Immigration Appeals (BIA) affirming the
Immigration Judge’s (IJ) denial of his application for cancellation of removal
under 8 U.S.C. §1229b. Gonzalez’s application was rejected on the basis that
Gonzalez had not been continuously physically present in the United States for
ten years prior to the filing of his application.
*
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should not be published and is not precedent except under the limited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.
No. 07-60628
This court generally reviews only the BIA’s decision, not that of the IJ,
except to the extent that the IJ’s decision influences the BIA. Mikhael v. INS,
115 F.3d 299, 302 (5th Cir. 1997). In the instant case, the BIA relied in part on
the IJ’s analysis in determining whether Gonzalez was entitled to relief. Thus,
consideration of the IJ’s decision is appropriate. See Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
The Attorney General has the authority to cancel removal of an
inadmissible or removable alien who, inter alia, “has been physically present in
the United States for a continuous period of not less than 10 years” immediately
preceding the date upon which the alien applied for cancellation of removal.
§ 1229b(b)(1)(A). An alien fails to maintain the necessary continuous physical
presence if he has “departed from the United States for any period in excess of
90 days.” § 1229b(d)(2).
Whether Gonzalez had been continually present for a period of not less
than ten years prior to his application is a factual determination that is subject
to this court’s review. See Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th
Cir. 2003). This court reviews the IJ’s factual conclusions regarding whether
Gonzalez established ten years of continuous presence for substantial evidence.
Id. “This Court must affirm the IJ’s decision if there is no error of law and if
reasonable, substantial, probative evidence on the record, considered as a whole,
supports his factual findings.” Id. In order to succeed on appeal, Gonzalez must
provide “evidence so compelling that no reasonable fact-finder could conclude
against it.” See id. (internal quotation marks and citation omitted). Questions
of law are reviewed by this court de novo. Id.The IJ based the denial upon Gonzalez’s testimony that he had left the
United States and stayed in Mexico for a period of three-and-a-half or four
months in 1998, such that Gonzalez had failed to maintain continuous physical
presence pursuant to § 1229(b)(d)(2). Gonzalez denies neither that he so
testified nor that the 1998 trip fell within the ten year period relevant to
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No. 07-60628
determining whether he qualifies for cancellation of removal. Rather, Gonzalez
argues that the IJ erred in basing the denial of relief solely upon Gonzalez’s
testimony because Gonzalez’s memory of events occurring in 1998 was not clear
at the time he testified. The record does not support Gonzalez’s argument.
Although over the course of his testimony Gonzalez slightly revised the length
of his 1998 stay in Mexico, he never testified that he could not accurately
remember the details of the trip in question. He has thus failed to show that the
IJ’s decision was not supported by substantial evidence. See Garcia-Melendez,
351 F.3d at 661.
Gonzalez also argues that his 1998 trip did not interrupt his continuous
physical presence in the United States because his departure to Mexico was not
precipitated by a formal removal or voluntary departure order, citing for support
In re Avilez-Nava, 23 I. & N. 799, 800-01 (BIA 2005). As the BIA noted in its
rejection of Gonzalez’s appeal, the holding of Avilez-Nava was specifically limited
to an applicant whose departure from the United States was not of sufficient
length to interrupt his continuous physical presence in the United States
pursuant to § 1229b(d)(2). Id. at 800 (referring to § 1229b(d)(2) as Immigration
and Nationality Act § 240A(d)(2)). Because Gonzalez was absent from the
United States for a period of over ninety days, and thereby interrupted his
continuous physical presence pursuant to § 1229b(d)(2), his case is
distinguishable from Avilez-Nava.
Finally, Gonzalez contends that the IJ was required to consider factors
beyond Gonzalez’s lack of continuous presence in the United States before
denying his application. This court has indicated that, when an alien has failed
to show continuous physical presence as required by § 1229b(b)(1)(A), further
analysis is unnecessary before relief may be properly denied. See Garcia-
Melendez, 351 F.3d at 662.
AFFIRMED.
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