Jose Oviedo v. Eric Holder, Jr.

Case: 13-60617 Document: 00512618400 Page: 1 Date Filed: 05/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60617
Fifth Circuit
FILED
Summary Calendar May 5, 2014
Lyle W. Cayce
JOSE RAMON OVIEDO, 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. A200 722 792
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Ramon Oviedo, a native and citizen of Mexico, was charged in 2010
in a Notice to Appear (NTA) with being an alien present in the United States
without having been admitted or paroled. Oviedo conceded the facts and
allegations in the NTA and sought cancellation of removal, or in the
alternative, voluntary departure. The immigration judge (IJ) denied both.
Oviedo appealed to the Board of Immigration Appeals (BIA), which dismissed
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-60617
the appeal. Oviedo petitions for review of the BIA’s dismissing his appeal from
the denial of cancellation of removal. (He does not challenge the denial of
voluntary departure.)
The BIA determined Oviedo did not meet his burden of establishing ten
years’ continuous physical presence in the United States because of his 2008
deportation or voluntary departure to Mexico. Oviedo asserts the evidence
does not establish he was aware of his 2008 conviction for illegal entry or knew
that, prior to June 2010, he was placed in removal proceedings, ordered
removed, or granted voluntary departure.
Oviedo bears the burden of proving eligibility for cancellation of removal.
See 8 C.F.R. § 1240.8(d) (burdens of proof in removal proceedings). To be
eligible, an alien must satisfy four statutory requirements. See 8 U.S.C.
§ 1229b(b)(1) (cancellation of removal; adjustment of status). Continuous
physical presence in the United States for the ten-year period immediately
preceding the date of the application for cancellation of removal is required
(presence requirement). 8 U.S.C. § 1229b(b)(1)(A). An alien’s deportation or
voluntary departure under threat of immigration proceedings stops the
continuous-presence accrual. See 8 U.S.C. § 1229b(d); 8 U.S.C. § 1231(a)(5)
(detention and removal of aliens ordered removed); 8 C.F.R. § 240.64 (eligibility
for cancellation of removal); see also Mireles-Valdez v. Ashcroft, 349 F.3d 213,
214, 217–19 (5th Cir. 2003); In re Romalez-Alcaide, 23 I & N Dec. 423, 426–28
(BIA 2002).
We review the decision of the BIA, “unless the IJ’s decision has some
impact on” it. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Factual
findings, on whether Oviedo established the presence requirement, are
reviewed for substantial evidence. Garcia-Melendez v. Ashcroft, 351 F.3d 657,
661 (5th Cir. 2003). “This Court will not reverse the decision . . . unless the
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No. 13-60617
petitioner provides evidence so compelling that no reasonable fact-finder could
conclude against it”. Id. (citation and internal quotation marks omitted).
Oviedo testified that, in 2008, while attempting to reenter the United
States from a brief stay in Mexico, he was apprehended by border authorities,
detained for four days, transported to a court, ordered to return to Mexico, and
returned to Mexico. This testimony is consistent with the information reported
by the immigration agent in Form I-213 Record of Deportable/Inadmissible
Alien.
Because Oviedo was convicted of illegal entry, the BIA, in agreement
with the IJ, determined his return to Mexico in 2008 was either a deportation
or a grant of voluntary departure. Oviedo’s assertion that he was unaware of
his conviction, deportation, or voluntary departure is not “so compelling that
no reasonable fact-finder could conclude” the continuous-presence accrual was
not interrupted. Id. Thus, substantial evidence supported finding Oviedo
lacked the requisite continuous presence.
DENIED.
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