On Petition for Review of an Order of the Board of Immigration Appeals D.C. No. A075-219-367
The opinion of the court was delivered by: Fernandez, Circuit Judge
Argued and Submitted October 5, 2010-San Francisco, California
Before: Ferdinand F. Fernandez and Barry G. Silverman, Circuit Judges, and Kevin Thomas Duffy,*fn1 District Judge.
Jose Valadez-Munoz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' (BIA) dismissal of his appeal from the Immigration Judge's (IJ) order of removal. Specifically, he asserts that the BIA erred when it determined that he was removable because he had made a false claim of United States citizenship,*fn2 and because he was not entitled to cancellation of removal due to a break in his continuous physical presence in the United States.*fn3 We deny the petition.
Valadez first entered the United States without inspection in December of 1987 at the age of sixteen, and resided in the United States thereafter, although he visited his family in Mexico for about four months in 1988, three weeks in 1992, and a month in 1994. In 1994, his brother gave him a State of Texas birth certificate for Robert Louis Moreno. Valadez used that birth certificate to obtain a California driver license in the name of Robert Moreno so that he could more easily obtain and maintain employment.
In January of 1997, Valadez again left the country for Mexico; he traveled by airplane to Mexico so that his then fiancée could meet his family. Following his return flight to the Houston, Texas airport on February 15, 1997, he attempted to use the false Texas birth certificate and the driver license to re-enter the United States under the name of Robert Moreno. He was asked a few questions by the primary immigration inspector, who, unsatisfied with the responses, sent him to a secondary inspection officer for intensified inspection.
The secondary inspector asked Valadez questions about his family based on the birth certificate. After Valadez gave contradictory answers, the inspector left to gather more information about Robert Moreno. When the inspector returned, Valadez continued to assert that he was Robert Moreno. It was not until the secondary inspector confronted Valadez with biographical information about the real Robert Moreno (height, weight, presence of tattoos), which was inconsistent with Valadez's appearance, that he confessed his true identity. The officer found that he was an excludable alien and gave him the option of either seeing an IJ or withdrawing his application for admission and voluntarily returning to Mexico. Valadez chose the latter option and signed a document which stated, among other things, "[a]lthough I understand I may choose to appear before an immigration judge for a hearing in exclusion proceedings, I request that I be permitted to withdraw my application for admission and return abroad." That request was granted, and he returned to Mexico that same day, but a few days later he reentered the United States without inspection.
Valadez married his current wife, a United States citizen, on July 27, 1998. The couple's first child, a United States citizen, was born on September 29, 1999. Their second child, also a United States citizen, was born on February 26, 2004. Valadez applied for adjustment of status in December of 2001, but his application was denied on November 19, 2002, on the basis that he was ineligible due to his false claim of United States citizenship. See 8 U.S.C. § 1255(a).
On February 4, 2003, removal proceedings were initiated against Valadez. The notice to appear charged that he was subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being admitted, and under § 1182(a)(6)(C)(ii) as an alien who has falsely represented himself to be a United States citizen. Following a hearing on August 23, 2004, in which Valadez testified regarding the alleged 1997 false claim to citizenship incident, the IJ found that he was removable under § 1182(a)(6)(C)(ii). The IJ found that Valadez had made a false claim of citizenship in 1997 when attempting to gain entry, and that he did not timely retract that false claim.
In November of 2004, Valadez submitted an application for cancellation of removal based upon hardship to his wife and children. At the hearing on February 11, 2005, the Department of Homeland Security argued that Valadez was ineligible for cancellation of removal because his withdrawal of his application for admission at the Houston Airport and subsequent immediate voluntary return to Mexico interrupted his continuous physical presence in the United States, as a result of which he had not been here for ten years "immediately preceding the date of" his application for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(A). Following the hearing, the IJ determined that "the February 1997 rejection of his application for admission, followed by his immediate departure from the United States while under custodial control, disrupted the continuity of [his] required 10 years of domicile in the United States." As a result, the IJ denied the application for cancellation of removal.
The BIA dismissed Valadez's appeal. In so doing, it independently reviewed the IJ's findings and agreed that Valadez was not entitled to adjustment of status. See 8 U.S.C. § 1255(a). It held that Valadez's presentation of a Texas birth certificate to immigration officers constituted a false claim of United States citizenship. It also held that Valadez did not timely retract his claim of citizenship because he failed to correct his misrepresentation prior to its exposure as a falsity. It finally held that his withdrawal of his application for admission and return to Mexico broke his ...