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Ascencio-Rodriguez v. Holder

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Argued: May 8, 2009

Before: WALKER,*fn2 CABRANES,and WALLACE,*fn3 Circuit Judges.

Petitioner Jesus Ascencio-Rodriguez (“Ascencio-Rodriguez” or “petitioner”) seeks review of a May 22, 2008 decision by the Board of Immigration Appeals (“BIA”) affirming the November 3, 2006 judgment of an Immigration Judge (“IJ”), which denied petitioner’s application for cancellation of removal but granted his request for voluntary departure. Petitioner asserts that the IJ and the BIA erred in concluding that his arrest and conviction for illegal entry into the United States in February 2001 interrupted his “continuous physical presence” in the United States and thereby rendered him ineligible for cancellation of removal pursuant to 8 U.S.C. § 1229b(b). Whether a conviction for illegal entry is a “formal, documented process” pursuant to which an alien is determined to be inadmissible, see In re Avilez-Nava, 23 I. & N. Dec. 799, 801 (B.I.A. 2005) (en banc)-and, if so, whether such a process interrupts an alien’s continuous physical presence in the United States-are issues of first impression in this Circuit. We conclude that petitioner’s conviction and subsequent return to Mexico did interrupt his continual physical presence and therefore the BIA properly concluded that he is ineligible for cancellation of removal.

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