MANUEL TORRES v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-22No. No. 19-71935

Summary · law.co

Holding. The petition for review was denied. Substantial evidence supported the agency's finding that Torres failed to establish the required ten years of continuous physical presence because he accepted voluntary departure in 2008 and 2011, and the agency did not abuse its discretion in denying his motion to terminate proceedings.

Hector Manuel-Torres, a Mexican citizen, sought review of an immigration board decision that denied his application to cancel his removal order and rejected his motion to terminate proceedings. The central dispute involved whether Torres had maintained continuous physical presence in the United States for the ten-year period required by law to qualify for cancellation of removal. The court found that Torres had accepted voluntary departure agreements in 2008 and 2011, which interrupted any continuous presence period he might have accumulated, making him ineligible for the relief he sought.

Torres also argued that the immigration agency lacked jurisdiction over his case based on a Supreme Court decision regarding notice requirements. The court rejected this argument, finding it foreclosed by prior appellate precedent that had already addressed and rejected the same theory. The court upheld the agency's decisions across all issues raised and denied Torres's petition for review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether voluntary departure agreements interrupt the accrual of continuous physical presence for cancellation of removal
Whether an alien's testimony can overcome documentary evidence of accepted voluntary departure
Whether the immigration agency had jurisdiction over removal proceedings under the notice requirements established in Pereira v. Sessions

Procedural posture

Torres petitioned for review of a Board of Immigration Appeals decision dismissing his appeal from an immigration judge's denial of his cancellation of removal application and motion to terminate.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Hector Manuel-Torres, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for cancellation of removal and denying his motion to terminate. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys continuous physical presence determination. Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008). We review for abuse of discretion the denial of a motion to terminate and we review de novo questions of law. Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We deny the petition for review.

Substantial evidence supports the determination that Manuel-Torres failed to establish ten years of continuous physical presence for cancellation of removal, where the record includes two signed Form I-826s indicating that he accepted administrative voluntary departure in lieu of removal proceedings in 2008 and 2011. See 8 U.S.C. § 1229b(b)(1)(A); Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) (aliens acceptance of administrative voluntary departure interrupts the accrual of continuous physical presence); Gutierrez, 521 F.3d at 1117-18 (requiring some evidence that alien was informed of and accepted the terms of the voluntary departure agreement). Even assuming Manuel-Torress testimony to be credible, his testimony does not compel a contrary conclusion. Cf. Ibarra-Flores, 439 F.3d at 619-20 (insufficient evidence that alien knowingly and voluntarily accepted voluntary departure where record did not contain the voluntary departure form and aliens testimony suggested that he accepted return due to misrepresentations by immigration authorities).

The agency did not abuse its discretion in denying Manuel-Torress motion to terminate where his contention that the agency lacked jurisdiction over his proceedings under Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018) is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 889, 895 n.4 (9th Cir. 2020).

As stated in the courts September 18, 2019 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.