Garcia-Farias v. Ashcroft

102 F. App'x 538

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2004
• Docket: No. 03-70401
• Status: Published

Opinion

MEMORANDUM

**

Appellant Victoriano Garcia-Farias appeals the oral decision of the Immigration Judge, which the Board of Immigration Appeals affirmed without opinion, denying his petition for cancellation of removal. The IJ determined that, on three separate occasions at the U.S.-Mexican border, Garcia-Farias was granted administrative voluntary departure and returned to Mexico. The IJ concluded that these returns to Mexico interrupted Garcia-Farias’s continuous presence in the United States, and, therefore, Garcia-Farias failed to qualify for cancellation of removal. We presume that the parties are familiar with the facts of the case and refer to them only as necessary in this disposition. For the reasons stated below, we affirm.

I. Streamlining

Garcia-Farias first contends that the BIA erred in opting to affirm without opinion because his case presented novel factual and legal issues. However, whatever reason the BIA employed in deciding to streamline Garcia-Farias’s case, we need not review such decision because we have jurisdiction to review the merits of the claim directly. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003); see also Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir.1997).

II. Ten-Year-Presence Requirement

The IJ determined that, on three occasions in January 2000, Garcia-Farias “was granted administrative voluntary return by the Service and was returned to Mexico and immediately illegally re-entered this country.” Although the record indicates that such voluntary departures occurred at the border, they nonetheless constitute departures upon threat of deportation and therefore interrupt GarciaFarias’s continuous presence in the United States. Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir.2003). Because Garcia-Farias could not demonstrate that he satisfied the ten-year continuous presence requirement, the IJ did not err in concluding that Garcia-Farias did not qualify for cancellation of removal.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.