Bernardo Garcia-Chavez v. Eric Holder, Jr.

Case: 14-60338 Document: 00512997715 Page: 1 Date Filed: 04/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60338
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2015
BERNARDO ABIEL GARCIA-CHAVEZ,
Lyle W. Cayce
Clerk
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. A206 251 410
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Bernardo Abiel Garcia-Chavez, 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
cancellation of removal based on a finding that he was ineligible for such relief.
The IJ found that Garcia-Chavez was not credible and, in light of a prior
voluntary departure to Mexico in lieu of deportation, he was ineligible for
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60338
cancellation of removal because he had not met his burden of establishing ten
years of continuous physical presence in the United States. The BIA
determined that the IJ did not clearly err in finding Garcia-Chavez was not
credible and that he had not established his eligibility for cancellation of
removal.
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 certain 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.
In addition, we will defer to a credibility determination “unless, from the
totality of the circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Wang v. Holder, 569 F.3d 531, 538
(5th Cir. 2009) (internal quotation marks and citation omitted). An adverse
credibility determination must be supported “by specific and cogent reasons
derived from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Garcia-Chavez admitted that, after he was detained in 2009, he signed
certain documents agreeing that he would waive his right to an immigration
hearing and would voluntarily return to Mexico. However, in the instant
proceeding, he testified that he did not read these documents before signing
them and that he was not informed that he was waiving his right to appear
before an IJ. Garcia-Chavez’s version of events is inconsistent with the
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No. 14-60338
representations on the signed documents and his stated practices and
experience as a businessman. Thus, the IJ and BIA’s adverse credibility
determination was supported “by specific and cogent reasons derived from the
record.” Zhang, 432 F.3d at 344. Garcia-Chavez has not shown that, under
“the totality of the circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Wang, 569 F.3d at 538.
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 Garcia-Chavez’s brief or in the record
compels a finding that he was not granted a voluntary departure in lieu of
deportation in 2009. In light of the adverse credibility finding, his contrary
testimony was 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.
To the extent that Garcia-Chavez challenges the IJ’s determination that
he was ineligible for voluntary departure, we lack jurisdiction to consider his
arguments because the IJ alternatively declined to exercise discretion to grant
voluntary departure. See 8 U.S.C. § 1252(a)(2)(B)(i); Sattani v. Holder, 749
F.3d 368, 373 (5th Cir. 2014).
Accordingly, the petition for review is DENIED in part and DISMISSED
in part for lack of jurisdiction. Garcia-Chavez’s motion for leave to file an out-
of-time reply brief is GRANTED.
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