Hernandez-Salas v. Mukasey

279 F. App'x 528

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2008
• Docket: No. 06-74082
• Status: Published

Opinion

MEMORANDUM

**

Gil Alfredo Hernandez-Salas, a native and citizen of Mexico, petitions for review of the.Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision pretermitting his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the agency’s continuous physical presence determination for substantial evidence. Ibarrar-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006). We grant the petition for review and remand.

Substantial evidence does not support the agency’s determination that Hernandez-Salas’ continuous physical presence was broken based on an Apprehension History form, where the form is unsigned and does not show that Hernandez-Salas was informed of the terms of his departure or that he accepted them voluntarily or knowingly. See id. at 619 (administrative voluntary departure under threat of deportation breaks the accrual of continuous physical presence only where the record shows the alien was informed of the terms of departure and knowingly and voluntarily accepted them).

We therefore grant the petition for review and remand for further proceedings. INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

PETITION FOR REVIEW GRANTED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.