                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-3661
                                  ___________

Hector Hinojosa Aguilar,               *
                                       *
             Petitioner,               *
                                       * Petition for Review of an
      v.                               * Order of the Board of
                                       * Immigration Appeals.
John Ashcroft, et al.,                 *
                                       *    [UNPUBLISHED]
                                       *
             Respondents.              *
                                  ___________

                             Submitted: December 19, 2003

                                 Filed: January 26, 2004
                                  ___________

Before LOKEN, Chief Judge, WOLLMAN and HANSEN, Circuit Judges.
                             ___________

PER CURIAM.

       Hector Hinojosa Aguilar is a native of Mexico who entered the United States
without inspection in 1987. In December 1991, Hinojosa Aguilar returned to Mexico
and attempted to reenter the United States the same day. Immigration officers
stopped Hinojosa Aguilar and forced him to return to Mexico. He illegally reentered
the United States the next day. The INS commenced deportation proceedings in
1995. Hinojosa Aguilar conceded deportability and requested suspension of
deportation. After a hearing, the immigration judge concluded that Hinojosa Aguilar
is not eligible for that relief because he failed to maintain a continuous physical
presence in the United States for more than seven years before the INS issued its
order to show cause. The Board of Immigration Appeals dismissed Hinojosa
Aguilar’s administrative appeal, and he now petitions this court for review of the
BIA’s final agency action.

       This deportation proceeding was pending when Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.
No. 104-208, 110 Stat. 3009 (1996). While retaining the continuous physical
presence principle from prior law, Congress added the rule that an alien has not
maintained continuous physical presence “if the alien has departed from the United
States for any period in excess of 90 days.” 8 U.S.C. § 1229b(d)(2). Under IIRIRA’s
transitional rules, this new rule applies to Hinojosa Aguilar’s deportation proceeding.
He argues that he is eligible for suspension of deportation under the statute as
amended by § 1229b(d)(2) because his voluntary return to Mexico in December 1991
was for less than ninety days and therefore was not a break in his continuous physical
presence in this country for more than seven years. The BIA disagreed, concluding
in this and similar cases that (i) § 1229b(d)(2) was not intended to define the only
means by which continuous physical presence may be broken, and (ii) an alien’s
voluntary departure under a threat of deportation proceedings interrupts the alien’s
continuous physical presence in this country.

       Agreeing with the Fifth and Ninth Circuits, this court recently held that the
BIA’s interpretation of § 1229b(d)(2) is a reasonable construction of the statute that
is within the Attorney General’s substantial discretion in granting relief such as a
suspension of deportation. Palomino v. Ashcroft, No. 02-3961, 2004 WL 63404, at
*3 (8th Cir. Jan. 15, 2004). Palomino controls the issue raised in this case.
Accordingly, the decision of the BIA is affirmed.
                       ______________________________




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