Ivan Torres-Balderas v. Loretta E. Lynch , 806 F.3d 1157 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3030
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Ivan Israel Torres-Balderas
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 22, 2015
Filed: December 8, 2015
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Before MURPHY, MELLOY, and SMITH, Circuit Judges.
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MELLOY, Circuit Judge,
Ivan Israel Torres-Balderas petitions for review of an order of the Board of
Immigration Appeals affirming an immigration judge's denial of his application for
cancellation of removal. The BIA determined Torres-Balderas failed to establish the
continuous presence requirement and, therefore, was ineligible for cancellation of
removal. Because substantial evidence supports this determination, we affirm the
denial of relief and deny the petition for review.
I. Background
A. General Background
Torres-Balderas, a Mexican native and citizen, entered the United States in
1996 with a border-crossing visa. He then lost the visa and was not eligible to obtain
another. He returned to Mexico several times in the subsequent fourteen years and
reentered the United States several times without inspection. On at least two
occasions, border officials apprehended him when he attempted to enter, or shortly
after he entered, the United States. In both instances, he voluntarily departed but later
reentered without inspection. He later assisted the St. Louis Police Department as
well as the FBI in matters concerning false documents. In exchange, he obtained a
one-year Significant Public Benefit Parole in late 2007 and a one-year Deferral of
Action in early 2009. Eventually, on April 20, 2010, he received a Notice to Appear
charging him with removability. He admitted removability and applied for
cancellation of removal and voluntary departure.
To be eligible for cancellation of removal, an applicant must prove his
continuous presence in the United States for ten years preceding the Notice to Appear.
See 8 U.S.C. §§ 1229b(b)(1)(A), 1229b(d)(1). Presence is considered non-continuous
if broken by one absence from the United States in excess of ninety days or any
combination of absences that, in the aggregate, exceed 180 days. See id.
§ 1229b(d)(2). An application for cancellation of removal requires the applicant to
list departure and return dates for trips outside the United States. The applicant also
must sign, swear, and affirm the truth of the application to the best of his knowledge.
In his application, Torres-Balderas initially reported four absences from the
United States after entering in 1996. He did not report any absences specific to his
post-apprehension voluntary departures. The IJ noticed he also had not listed an
absence in relation to his own 2003 wedding in Mexico. The IJ permitted Torres-
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Balderas to amend his application to include this event. With the reported wedding-
related absence, his five reported absences totaled exactly 180 days (not counting the
days of departure or return).1
At his hearing, Torres-Balderas presented evidence material to the several
elements a removable alien must establish to prove eligibility for cancellation of
removal. The IJ found him credible but ruled against him as to every element, denied
cancellation of removal, and permitted voluntary departure. Although the IJ found
Torres-Balderas credible, much of his testimony simply lacked clarity and precision,
thus creating ambiguities. Further, the IJ had to make several findings regarding the
duration and dates of trips because Torres-Balderas's imprecise testimony differed
from the dates and durations he reported in his application. The IJ stressed that
Torres-Balderas had sworn to the veracity of his application and that the burden of
proof rested with Torres-Balderas to establish his continuous presence. On appeal,
Torres-Balderas challenged the IJ's ruling as to each element, but the BIA addressed
only the continuous presence requirement. Like the BIA, we address only the
continuous presence requirement.
B. February 1999/June 2000 Absence
Torres-Balderas testified that he obtained an I-94 card in Mexico during his
1999 trip, re-entered the United States using the card, but was apprehended at a check
point sixty miles inside the United States where officials identified the card as
fraudulent. At that point, he voluntarily returned to Mexico. When questioned about
1
Because we reach the same conclusion in this case regardless of whether we
discount the days of departures and returns, we assume such days are not considered
days absent from the United States. The departure and return dates listed in Torres-
Balderas's application were as follows: 02/01/1999 to 03/01/1999 (27 days);
02/01/2003 to 03/02/2003 (28 days); 01/01/2004 to 02/01/2004 (30 days); 03/01/2004
to 05/01/2004 (60 days); 01/25/2008 to 03/01/2008 (35 days).
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these events, Torres-Balderas told the IJ that he must have incorrectly reported the
dates of his trip because he was only apprehended once with a fraudulent I-94 card
and his voluntary removal record indicated he had been apprehended on July 4, 2000.
Based on this testimony, the IJ determined the trip had occurred in June 2000 rather
than February 1999. This determination brought the trip within the ten-year window
preceding the Notice to Appear. The IJ attributed a thirty-day absence to this trip,
stating that the trip occurred in June rather than February but otherwise took place as
reported in the application.
C. February 2003 Trip
Torres-Balderas listed a twenty-eight day absence related to his wedding. He
testified that he traveled to Mexico and spent time with his future wife every day for
about "a month" prior to their wedding. He also stated, however, that this pre-
wedding visit may have lasted only fifteen to twenty days. He stated that he and his
new wife came to the United States about one week after their wedding. The IJ found
the unclear testimony sufficiently similar to the times listed in the sworn application
to accept the application's description of a twenty-eight-day absence.
D. January 2004 Trip
The dates listed in the application for a January 2004 trip indicated a thirty-day
absence from the United States. During testimony, Torres-Balderas initially indicated
the duration listed in the application was accurate. He later equivocated as to the
duration of this trip. The IJ, relying on the application and Torres-Balderas's
confirmation of its accuracy, relied on the dates listed in the application because he
was unsure of the exact dates when testifying.
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E. March–April 2004 Trip
The IJ accepted the dates as listed in the sworn application for a sixty-day trip
to Mexico from March 1 through May 1, 2004. These dates were consistent with
Torres-Balderas's testimony, and the IJ noted that a series of hotel bills dated from
May 25, 2004 through July 13, 2004, supported the claim that he had returned to the
United States by May 2004.
F. January–February 2008 Trip
The IJ accepted the dates of the 2008 trip as listed in the application. The dates
of this thirty-five-day trip were consistent with physical evidence of Torres-Balderas's
presence in the United States and consistent with his testimony at the hearing.
Further, Torres-Balderas indicated he was stopped at the border in relation to this trip,
but the IJ did not add any time to the duration of the trip associated with such a stop.
Based on these individual determinations, the IJ concluded Torres-Balderas had
been outside the United States for "at least 183 days." The BIA affirmed.
II. Discussion
When the BIA adopts the opinion of the IJ with added analysis, we review both
opinions as reflecting the agency's judgment. Setiadi v. Gonzales, 437 F.3d 710, 713
(8th Cir. 2006). The continuous-presence determination is "a nondiscretionary
determination" that is not subject to the jurisdiction-stripping provisions of the REAL
ID Act. Hernandez-Garcia v. Holder, 765 F.3d 815, 816 (8th Cir. 2014). Our review
of the continuous-presence determination is narrowly constrained, however, because
"administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude the contrary." Sanchez-Velasco v. Holder, 593 F.3d
733, 735–36 (8th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(B)); Hassan v. Gonzales,
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484 F.3d 513, 516 (8th Cir. 2007) ("[F]actual determinations must be upheld if
supported by reasonable, substantial, and probative evidence on the record considered
as a whole."). The applicant bears the burden of proving continuous presence.
See Sanchez-Velasco, 593 F.3d at 736; 8 U.S.C. § 1229a(c)(4)(A)(i) ("An alien
applying for relief or protection from removal has the burden of proof to establish that
the alien . . . satisfies the applicable eligibility requirements.")
Here, the IJ found absences totaling at least 183 days, thus "breaking" Torres-
Balderas's continuous presence and rendering him ineligible for cancellation of
removal. In doing so, it appears the IJ may have mistakenly attributed thirty days of
absence for the June 2000 trip when, if the IJ had accepted the one-month duration as
set forth in the application (as the IJ purported to do), the absence would have been
twenty-nine days. Even taking this reduction into account, the absences still added
up to 182 days, thus exceeding 180 days. Further, in reaching this overall count, the
IJ did not attribute any additional time outside the United States due to the separate
voluntary departure and return after Torres-Balderas's July 4, 2000 apprehension.
Torres-Balderas nevertheless argues the record does not support the IJ's
determination because the IJ expressly found him credible but refused to rely
exclusively on his hearing testimony. He argues specifically that the IJ imposed an
insurmountable burden of proof and demanded evidence and specificity that was not
reasonably available. In making these arguments, Torres-Balderas fails to
acknowledge that the sworn application itself is evidence and that the IJ is required
to "weigh the credible testimony along with other evidence of record." Sanchez-
Velasco, 593 F.3d at 736 (quoting 8 U.S.C. § 1229a(c)(4)(B)); 8 C.F.R. § 1240.9("The hearing before the immigration judge, including the . . . applications . . . shall
constitute the record in the case."). Here, in each instance where the IJ relied on the
application rather than the testimony, the corresponding testimony, while deemed
credible, was unclear or imprecise. A positive credibility assessment simply does not
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elevate imprecise or unclear testimony to the level where an IJ must accept it as
defeating more clear and more specific prior sworn statements from the application.
III. Conclusion
We affirm the BIA and deny the petition for review.
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