Cristobal Martinez-Escobar v. Eric Holder, Jr.

Case: 14-60074 Document: 00512949730 Page: 1 Date Filed: 02/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-60074 February 26, 2015
Summary Calendar Lyle W. Cayce
Clerk
CRISTOBAL MARTINEZ-ESCOBAR, also known as Cristobal Miguel
Escobar,
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. A200 956 036
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Petitioner Cristobal Martinez-Escobar, a native and citizen of Mexico,
petitions this court for review of the dismissal by the Board of Immigration
Appeals (BIA) of his appeal from the Immigration Judge’s (IJ) order denying
relief in the form of cancellation of removal based on a finding that he was
ineligible for such relief. The BIA determined that Martinez-Escobar did not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60074
meet his burden of establishing ten years of continuous physical presence in
the United States in light of his 2002 and 2003 voluntary departures to Mexico
in lieu of deportation. Martinez-Escobar admits that he signed papers
indicating that he would voluntarily return to Mexico after being apprehended
by Border Patrol authorities in 2002 and 2003. However, he argues that he
would not have signed those papers if he had been informed of the possibility
of appearing before an IJ.
We review the order of the BIA and will consider the underlying decision
of the IJ to the extent that it influenced the BIA’s decision. Zhu v. Gonzales,
493 F.3d 588, 593 (5th Cir. 2007). 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). An alien’s deportation or voluntary
departure under threat of immigration proceedings stops the ten-year physical
presence time period accrual. Mireles-Valdez, 349 F.3d at 214, 217-19.
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 Martinez-Escobar’s brief or in the record compels a finding
that he was not granted a voluntary departure in lieu of deportation in 2002
and 2003. His assertion that he would not have agreed to a voluntary
departure if he had been informed of the full nature of deportation proceedings
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is not “so compelling that no reasonable fact-finder could conclude” that the
ten-year presence requirement was not interrupted. Garcia-Melendez, 351
F.3d at 661.
Accordingly, the petition for review is DENIED.
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