Gomez Zarate v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANGEL GOMEZ ZARATE, 
Petitioner, No. 08-70696
v.
 Agency No.
A076-349-255
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 16, 2011—San Francisco, California
Filed February 9, 2012
Before: Sidney R. Thomas, Ronald M. Gould, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Gould
1417
GOMEZ ZARATE v. HOLDER 1419
COUNSEL
Noam Mendelson and Dana Mendelson, Mendelson & Asso-
ciates, Daly City, California, for the petitioner.
1420 GOMEZ ZARATE v. HOLDER
Channah M. Farber, U.S. Department of Justice, Civil Divi-
sion, Office of Immigration Litigation, Washington, DC, for
the respondent.
OPINION
GOULD, Circuit Judge:
Jose Angel Gomez Zarate (“Gomez”) petitions for review
of an order of the Board of Immigration Appeals (“BIA”) dis-
missing his appeal from the Immigration Judge’s (“IJ”) deci-
sion pretermitting his application for cancellation of removal.
Gomez contends that his 1993 departure to Mexico—which
occurred after he attempted to reenter the United States but
was stopped by border patrol agents, arrested, charged and
convicted of possessing a false identification document, and
taken to the Mexican border in Immigration and Naturaliza-
tion Service (“INS”)1 custody—did not interrupt his continu-
ous physical presence for purposes of cancellation of removal.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny
the petition.
I
Gomez is a native and citizen of Mexico. He first entered
the United States in January of 1989. In February of 1993, he
went to Mexico for two or three weeks. Gomez attempted to
reenter the United States, and at the border, gave the immigra-
tion officer a “Notification of Birth Registration” from the
State of New Mexico. According to the Record of Deportable
Alien (Form I-213) documenting his attempted reentry,
Gomez at first claimed that he was a U.S. citizen, but on fur-
ther questioning, admitted that he was a Mexican citizen and
1
Pursuant to the Homeland Security Act of 2002, the functions of the
former INS were transferred to the newly formed Department of Home-
land Security. Pub. L. No. 107-296, 116 Stat. 2135 (2002).
GOMEZ ZARATE v. HOLDER 1421
that he had no documents allowing him to enter or legally
remain in the United States.
Gomez was then arrested and charged in the U.S. District
Court for the District of Arizona with two offenses: (1) falsely
claiming U.S. citizenship, and (2) possessing a false identifi-
cation document. Gomez pleaded guilty to Count 2, posses-
sion of a false identification document, in violation of 18
U.S.C. § 1028(a)(4), (b)(3).2 Count 1 was dismissed. The dis-
trict court sentenced Gomez to two years of supervised proba-
tion, but stated, “Since it is expected that the Immigration
authorities will cause the defendant to leave the United States
of America, no reports shall be required of defendant.” After
pleading guilty, Gomez went to jail for five days. He was then
returned to INS custody, put into a transport filled with other
aliens, taken to the Mexican border, and released. The next
day, Gomez crossed into the United States on foot.
On August 17, 2000, the INS filed a Notice to Appear
(“NTA”) charging Gomez with removability under 8 U.S.C.
§ 1227(a)(1)(C)(i). At a hearing before the IJ, Gomez con-
ceded removability, applied for cancellation of removal,3 and
2
At the time, § 1028(a)(4) punished “knowingly possess[ing] an identi-
fication document (other than one issued lawfully for the use of the pos-
sessor) or a false identification document, with the intent such document
be used to defraud the United States,” and § 1028(b)(3) provided for “a
fine of not more than $5,000 or imprisonment for not more than one year,
or both, in any other [non-enumerated] case.” 18 U.S.C. § 1028(a)(4),
(b)(3) (1988).
3
The Attorney General may cancel removal of an alien who is inadmis-
sible or deportable from the United States if the alien: “(A) has been phys-
ically present in the United States for a continuous period of not less than
10 years immediately preceding the date of such application; (B) has been
a person of good moral character during such period; (C) has not been
convicted of an offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) . . . ; and (D) establishes that removal would result in excep-
tional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1229b(b)(1).
1422 GOMEZ ZARATE v. HOLDER
requested voluntary departure in the alternative. The IJ preter-
mitted Gomez’s application for cancellation of removal, find-
ing that Gomez’s 1993 departure to Mexico interrupted his
continuous physical presence and made him ineligible for
cancellation of removal. The IJ granted Gomez voluntary
departure. Gomez appealed to the BIA.
On October 21, 2005, the BIA remanded the matter to the
IJ. The BIA found that the evidentiary record was insuffi-
ciently developed for it to conclude that Gomez’s 1993 return
to Mexico meaningfully interrupted his continuous physical
presence. Citing Vasquez-Lopez v. Ashcroft, 343 F.3d 961(9th Cir. 2003), and In re Romalez-Alcaide, 23 I. & N. Dec.
423 (BIA 2002) (en banc), the BIA instructed the parties to
present evidence on remand on whether Gomez departed
under threat of proceedings so as to terminate his continuous
physical presence.
At a hearing after the remand, Gomez testified about his
1993 departure. He testified that he did not recall discussing
leaving the United States before the district court. He also tes-
tified that no immigration official explained to him that he
could go to immigration court and fight his case and that he
was not given the option of returning voluntarily to Mexico.
Gomez believed that he had no choice but to board the bus
and go back to Mexico.
The IJ again pretermitted Gomez’s application for cancella-
tion of removal because Gomez did not establish the requisite
continuous physical presence. The IJ found that Gomez’s
1993 departure was “clearly different from” a mere turn-
around at the border, thus distinguishing this case from In re
Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005) (en banc). The
IJ again granted Gomez voluntary departure. Gomez again
appealed to the BIA.
The BIA dismissed Gomez’s appeal. Citing Juarez-Ramos
v. Gonzales, 485 F.3d 509 (9th Cir. 2007), and Avilez-Nava,
GOMEZ ZARATE v. HOLDER 1423
the BIA found Gomez’s departure more akin to expedited
removal than to a mere turnaround at the border. The BIA
stated that it agreed with the IJ that “the process of being
arrested by Border Patrol while attempting to enter the United
States, detained, convicted of a crime related to the attempted
entry, and returned to Mexico in DHS custody is sufficiently
formal to constitute a break in the respondent’s otherwise
continuous physical presence.” The BIA reinstated the IJ’s
grant of voluntary departure. Gomez filed a timely petition for
review in this court.
II
We review for substantial evidence the BIA’s decision that
an alien did not establish ten years of continuous physical
presence in the United States. Gutierrez v. Mukasey, 521 F.3d
1114, 1116 (9th Cir. 2008). Under the substantial evidence
standard, a petitioner can obtain reversal only if the evidence
compels a contrary conclusion. Id.III
[1] To be eligible for cancellation of removal, an applicant
must “ha[ve] been physically present in the United States for
a continuous period of not less than 10 years immediately pre-
ceding the date of such application.” 8 U.S.C.
§ 1229b(b)(1)(A). Service with an NTA ends an alien’s
accrual of continuous physical presence. Id. § 1229b(d)(1).
Because Gomez was served with an NTA in August of 2000,
he is eligible for cancellation of removal only if he can estab-
lish continuous physical presence in the United States since
August of 1990.
[2] Deportation under a formal exclusion or deportation
order or an expedited removal order breaks an applicant’s
continuous physical presence. Landin-Zavala v. Gonzales,
488 F.3d 1150, 1153 (9th Cir. 2007); Juarez-Ramos, 485 F.3d
at 511 (holding that “a slightly more formal procedure at the
1424 GOMEZ ZARATE v. HOLDER
border—an expedited removal—does interrupt continuous
physical presence”). A departure under threat of removal pro-
ceedings also interrupts continuous physical presence.
Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir. 2003)
(per curiam); Romalez, 23 I. & N. Dec. at 424; 8 C.F.R.
§ 240.64(b)(3).
[3] On the other hand, under our precedent, “continuous
physical presence is not interrupted if a person is merely
stopped at the border and turned away without any more for-
mality.” Valadez-Munoz v. Holder, 623 F.3d 1304, 1311 (9th
Cir. 2010); see also Tapia v. Gonzales, 430 F.3d 997, 998 (9th
Cir. 2005). The BIA has stated the rule regarding turnarounds
at the border as follows:
[A]n immigration official’s refusal to admit an alien
at a land border port of entry will not constitute a
break in the alien’s continuous physical presence,
unless there is evidence that the alien was formally
excluded or made subject to an order of expedited
removal, was offered and accepted the opportunity to
withdraw his or her application for admission, or
was subjected to any other formal, documented pro-
cess pursuant to which the alien was determined to
be inadmissible to the United States.
Avilez-Nava, 23 I. & N. Dec. at 805-06.
[4] Gomez contends that the proceedings after his 1993
departure to Mexico were not the sort of “formal, documented
process” that breaks continuous physical presence. We dis-
agree.
[5] The evidence required to show a “formal, documented
process pursuant to which the alien was determined to be
inadmissible to the United States” sufficient to terminate an
alien’s continuous physical presence will vary from case to
case. In Avilez-Nava, the BIA stated that such evidence might
GOMEZ ZARATE v. HOLDER 1425
include, among other things, “testimony or documentary evi-
dence of a legally enforced refusal of admission and return
such as a Record of Deportable/Inadmissible Alien (Form I-
213).” Id. at 806. We have held that the making of a record
of a turnaround, or the acts of photographing and fingerprint-
ing, do not alone “constitute sufficient formality to break [an
alien’s] continuous physical presence.” Valadez-Munoz, 623
F.3d at 1311; Tapia, 430 F.3d at 1003-04; see also Juarez-
Ramos, 485 F.3d at 510-11. Something must be “legally
added to a simple [turnaround],” and as we have stressed,
“some formality is required.” Valadez-Munoz, 623 F.3d at
1311.
In Valadez-Munoz, we rejected the argument that an alien
“stopped at the border and ultimately turned away” necessar-
ily continues to accrue continuous physical presence. 623
F.3d at 1310-11. In that case, Valadez sought to use a false
birth certificate and driver’s license to reenter the United
States. Id. at 1306. After questioning from immigration
inspectors, Valadez admitted his true identity. Id. He was
given the option of either seeing an IJ or withdrawing his
application for admission and voluntarily returning to Mex-
ico; he chose the latter. Id. at 1306-07. Though this procedure
“may not have been as formal as an actual completed pro-
ceeding that results in an exclusion order or in an expedited
removal order,” we held that “it was formal nonetheless” and
that Valadez’s continuous physical presence was interrupted.
Id. at 1312 (footnotes omitted).
Similarly, the Second Circuit in Ascencio-Rodriguez v.
Holder, 595 F.3d 105, 107 (2d Cir. 2010), held that an alien’s
conviction for illegal entry and subsequent return to Mexico
broke his continuous physical presence. There Ascencio had
attempted to use fraudulent documents to reenter the United
States, but gave his true name at the checkpoint, was arrested
and charged with illegal entry in violation of 8 U.S.C.
§ 1325(a)(1), and pleaded guilty to that offense before a mag-
istrate judge. Id. at 107-08. Ascencio requested a hearing
1426 GOMEZ ZARATE v. HOLDER
before the Immigration Court, but no hearing was conducted.
Id. at 108. Instead, “after appearing in court and signing some
documents, [Ascencio] was placed on a bus and returned to
Mexico.” Id. The Second Circuit stated that the above
sequence of events was “a far cry from merely being turned
back at the border” and that Ascencio’s departure was “more
akin to a formal removal than the informal interactions at the
border that the BIA and other Courts of Appeals have found
insufficient to terminate a period of continuous physical pres-
ence.” Id. at 113, 115 n.8 (citing, inter alia, Tapia, 430 F.3d
at 999, and Avilez-Nava, 23 I. & N. Dec. at 800). The court
concluded that Ascencio’s § 1325 conviction was a “formal,
documented process” that was “the functional equivalent of
an adjudication of inadmissibility,” and accordingly, held that
his conviction and return to Mexico terminated his continuous
physical presence within the meaning of § 1229b(b)(1). Id. at
115.
[6] While it is not an easy question because Gomez’s con-
viction did not declare that he was inadmissible, we conclude
that Gomez was subjected to a “formal, documented process”
sufficient to break his continuous physical presence in the
United States. See Avilez-Nava, 23 I. & N. Dec. at 805-06.
Gomez was convicted of possessing a false identification doc-
ument while attempting to enter the United States illegally.
This conviction, in the context of the process that led to
Gomez’s departure, was “the functional equivalent of an adju-
dication of inadmissibility.” See Ascencio-Rodriguez, 595
F.3d at 115. Though this process was not as formal as one
resulting in an exclusion or expedited removal order, or even
an illegal entry conviction, it was “formal nonetheless.” See
Valadez-Munoz, 623 F.3d at 1312. A Form I-213 documents
Gomez’s attempted entry. See Avilez-Nava, 23 I. & N. Dec.
at 806. The Form I-213 states that “[a]t [the] time of applying
for admission to the United States, [Gomez] presented a
‘Notification of Birth Registration’ document from the state
of New Mexico and claimed to be a citizen of the United
States.” An immigration officer read Gomez his Miranda
GOMEZ ZARATE v. HOLDER 1427
rights. Gomez was arrested and charged with federal
offenses, including falsely claiming United States citizenship.
He appeared in federal court, represented by a public
defender, and pleaded guilty to possession of a false identifi-
cation document—the same document he had tried to use to
gain entry into the United States. A judgment documents
Gomez’s guilty plea, conviction, and sentence. He went to jail
for five days. Finally, he boarded a bus and returned to the
Mexican border in INS custody.
[7] Though the circumstances of Gomez’s departure do not
fit neatly within the categories of departures that we have con-
sidered in prior cases, the sequence of events culminating in
Gomez’s return to Mexico—his presentation of a false identi-
fication document to a border official and, at least as reported
on the Form I-213, his false claim of U.S. citizenship, his sub-
sequent arrest, his guilty plea and conviction in federal court,
the five days he spent in jail, and his return to the Mexican
border in INS custody—was a “far cry” from a mere turn-
around at the border. See Ascencio-Rodriguez, 595 F.3d at
113. Like the Second Circuit in Ascencio-Rodriguez, we con-
clude that Gomez’s departure was “more akin to a formal
removal than the informal interactions at the border that [we]
have found insufficient to terminate a period of continuous
physical presence.” Id. at 115 n.8.
Gomez argues that his case is different from Ascencio-
Rodriguez because Ascencio was convicted of illegal entry
under 8 U.S.C. § 1325(a)(1), yet Gomez was convicted of
possession of a false identification document under 18 U.S.C.
§ 1028(a)(4)—a statute that, on its face and unlike § 1325,
sheds no light on an alien’s admissibility.4 We agree that a
4
See Ascencio-Rodriguez, 595 F.3d at 113 (concluding that language of
§ 1325 “almost mirrors the definition of inadmissibility contained in 8
U.S.C. § 1182(a)(6)(A)(I)”). Compare 8 U.S.C. § 1325(a) (penalizing
“[a]ny alien who (1) enters or attempts to enter the United States at any
time or place other than as designated by immigration officers”), and 8
1428 GOMEZ ZARATE v. HOLDER
conviction under § 1028(a)(4), without more, does not render
an alien ineligible for cancellation of removal. But the fact
that Gomez pleaded guilty to possession of a false identifica-
tion document rather than illegal entry does not deprive the
process of its “formal, documented” character. See Avilez-
Nava, 23 I. & N. Dec. at 805. Nor does it alter the fact that
the formal process resulted in Gomez’s return to INS custody
and then to Mexico.
As we see it, Gomez got more process than the alien in
Valadez-Munoz, whose departure we held interrupted continu-
ous physical presence. Valadez, though given the option of
going before an immigration judge, chose not to do so.5 623
F.3d at 1312; see also Gutierrez, 521 F.3d at 1117-18. Here
Gomez actually appeared before a judge, albeit not an immi-
gration judge, and pleaded guilty to an offense directly relat-
ing to his attempted reentry. In addition, not only did Gomez
present an admittedly false birth registration document to a
U.S.C. § 1182(a)(6)(A)(i) (“An alien present in the United States without
being admitted or paroled, or who arrives in the United States at any time
or place other than as designated by the Attorney General, is inadmissi-
ble.”), with 18 U.S.C. § 1028(a)(4) (penalizing any person who “know-
ingly possesses an identification document (other than one issued lawfully
for the use of the possessor), authentication feature, or a false identifica-
tion document, with the intent such document or feature be used to
defraud the United States”).
5
In Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006), we
held that voluntary departure breaks continuous physical presence “only
when the alien has been informed of, and has knowingly and voluntarily
consented to” the terms of an agreement to depart in lieu of being placed
in deportation proceedings. Gomez contends that he was never given the
option of going before an immigration judge and therefore that he did not
“knowingly and voluntarily consent[ ] to” departure in lieu of deportation
proceedings. This may be true, but the BIA’s holding was not that Gomez
departed voluntarily in lieu of more formal proceedings, but that the pro-
ceedings that did occur were sufficient to terminate his continuous physi-
cal presence. For this reason, Gomez’s argument that he did not depart
voluntarily does not help him.
GOMEZ ZARATE v. HOLDER 1429
border official, but also there is “documentary evidence of a
legally enforced refusal of admission and return”—a Form I-
213—stating that Gomez falsely claimed U.S. citizenship. See
Avilez-Nava, 23 I. & N. Dec. at 806.
In holding that Gomez’s 1993 departure broke his continu-
ous physical presence, the BIA did not state that Gomez had
been determined inadmissible, and our review is limited to the
grounds actually relied upon by the BIA. INS v. Ventura, 537
U.S. 12, 16-17 (2002). Nevertheless, an explicit finding of
inadmissibility is not essential to our holding, because to
allow Gomez to continue to accrue continuous physical pres-
ence after the particular sequence of events resulting in his
departure, even absent such a finding, “would be contrary to
the objectives of [our immigration] laws and the BIA’s rele-
vant decisions.” Ascencio-Rodriguez, 595 F.3d at 114 (citing
Avilez-Nava, 23 I. & N. Dec. at 806; Romalez-Alcaide, 23 I.
& N. Dec. at 429).
[8] In light of the “formal, documented process” that
resulted in Gomez’s return to Mexico, as shown by the Form
I-213 and the judgment of conviction viewed in context, we
hold that substantial evidence supports the BIA’s determina-
tion that Gomez’s departure was “sufficiently formal to con-
stitute a break in [his] otherwise continuous physical
presence.” See Avilez-Nava, 23 I. & N. Dec. at 805. Gomez
was thus statutorily ineligible for cancellation of removal.
PETITION FOR REVIEW DENIED.