Alfredo Guerrero-Botello v. Loretta Lynch

Case: 14-60636 Document: 00513180265 Page: 1 Date Filed: 09/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-60636 FILED
Summary Calendar September 3, 2015
Lyle W. Cayce
Clerk
ALFREDO GUERRERO-BOTELLO,
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 340 595
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Alfredo Guerrero-Botello, a native and citizen of Mexico, seeks review of
the Board of Immigration Appeals’ (BIA) dismissal of his cancellation-of-
removal appeal. The BIA determined Guerrero did not meet his burden of
establishing ten years of continuous physical presence in the United States in
the light of his 2004 and 2005 voluntary departures to Mexico.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-60636
Guerrero contends: because he was not subjected to a formal
documented deportation proceeding, not advised of his right to apply for
cancellation of removal, and knowingly agreed to voluntary departure, these
departures should not count against the ten-year-continuous-physical-
presence requirement. Regarding another of the elements for cancellation of
removal, he claims his children will suffer exceptional and extremely unusual
hardship should he be deported.
In reviewing an order of the BIA, our court considers the underlying
decision of the immigration judge (IJ) to the extent it influenced the BIA’s
decision. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). To establish
eligibility for cancellation of removal, Guerrero must demonstrate, inter alia,
continuous physical presence in the United States for the ten-year period
immediately preceding the date of the application for cancellation of removal.
See Ramos-Torres v. Holder, 637 F.3d 544, 548 (5th Cir. 2011); 8 U.S.C.
§ 1229b(b)(1)(A); 8 C.F.R § 1240.64(a). An alien’s voluntary departure under
threat of immigration proceedings interrupts his ten-year continuous physical
presence. See Mireles-Valdez v. Ashcroft, 349 F.3d 213, 218 (5th Cir. 2003); 8
C.F.R. § 1240.64(b)(3).
The substantial evidence standard applies to factual determinations
concerning an alien’s claim of ten years of continuous physical presence.
Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003); Gonzalez-
Torres v. INS, 213 F.3d 899, 901 n.3 (5th Cir. 2000). A reversal of the BIA’s
decision requires “not only that the evidence supports a contrary conclusion,
but also that the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006) (emphasis in original) (internal quotation marks omitted).
Nothing in the record compels a finding that Guerrero was not granted
a voluntary departure in lieu of deportation in 2004 and 2005. His assertions
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No. 14-60636
he was not subject to a formal documented deportation proceeding, he was not
advised of his right to apply for cancellation of removal, and he did not
knowingly agree to voluntary departure do not compel a different result. See
Garcia-Melendez, 351 F.3d at 661.
For the other factor at issue, we lack jurisdiction over Guerrero’s claim
that the IJ erred in finding his qualifying relatives (his daughter and son, who
are United States citizens) would not suffer exceptional and extremely unusual
hardship as a result of the denial of his application for cancellation of removal.
(The BIA’s having ruled against Guerrero on the continuous-physical-presence
element, it did not decide the hardship issue.)
Challenges to the IJ’s assessment of the hardship factors are not
reviewable because such contentions are nothing more than a disagreement
with the IJ’s weighing of the factors underlying the discretionary hardship
determination. E.g., Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014); Sung
v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007).
DENIED.
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