                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 10-13379                  FEB 15, 2011
                                                             JOHN LEY
                          Non-Argument Calendar                CLERK
                        ________________________

                         Agency No. A028-590-509


CESARIO DEJESUS REYES-MORALES,
a.k.a. Sesario De Jesus Reyes Muralles,
a.k.a. Cesar Anibal Reyes Muralles,

                                                                   Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                 Respondent.
                       ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        ________________________

                            (February 15, 2011)

Before HULL, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
       Cesario Anibal Reyes-Muralles,1 a Guatemalan national, petitions for

review of the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) denial of his application for special rule

cancellation of removal under § 203 of the Nicaraguan and Central American

Relief Act of 1997 (“NACARA”).2 Pub. L. No. 105-100, 111 Stat. 2160, 2196–99

(1997). We have jurisdiction under 8 U.S.C. § 1252.3

       To establish his eligibility for special rule cancellation of removal under the

NACARA, Reyes-Muralles bears the burden of showing, inter alia, that he has

been continually present in the United States for the seven years preceding the

disposition of his application—in this case, 2002–09.4 See 8 C.F.R. §


       1
          This case is docketed under the name “Cesario DeJesus Reyes-Morales,” but the
petitioner has clarified that his name is “Cesario Anibal Reyes-Muralles.”
       2
          Section 203 of the NACARA allows nationals of certain countries to apply for special
rule cancellation of removal, provided they filed asylum applications with the INS on or before
April 1, 1990 and meet certain other conditions.
       3
          Notwithstanding § 1252’s jurisdiction-stripping provision precluding judicial review of
discretionary BIA determinations, § 1252(a)(2)(B), we have jurisdiction to review the Board’s
non-discretionary determination here-at-issue: whether Reyes-Muralles has satisfied the
NACARA’s continuous-presence requirement. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1298
(11th Cir. 2001) (evaluating the statutory predecessor of the requirement at issue and determining
it was not a “discretionary decision” within the scope of the jurisdiction-stripping provision);
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam)
(applying Al Najjar to the current statute).
       4
          Notwithstanding 8 U.S.C. § 1229b(d)(1)’s stop-time provision, the BIA has interpreted
the continuous-presence requirement to apply to the seven years preceding the final
administrative disposition of an application for special rule cancellation of removal. See In re
Garcia, 24 I. & N. Dec. 179, 183 (BIA 2007). We are bound to follow agencies’ reasonable

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1240.66(b)(2). He must do so by a preponderance of the evidence. 8 C.F.R. §

1240.64(a). The IJ determined Reyes-Muralles failed to meet this burden, and the

BIA agreed, dismissing his administrative appeal. Reyes-Muralles claims this was

error.

         We review the BIA’s continuous-presence determination under the

substantial-evidence test, evaluating whether the record as a whole supports the

decision with “reasonable, substantial, and probative evidence.”5 Al Najjar v.

Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001). Under this test, we view “the

record evidence in the light most favorable to the agency’s decision,” and we will

only reverse the findings of the agency when the record evidence compels that

result. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). In

this case, there is no such compulsion.

             The BIA’s conclusion is supported by substantial evidence. Reyes-

Muralles’s hearing testimony contained several inconsistencies, leading the IJ to

find that he was not “fully credible.” Furthermore, despite his claim that he has

resided in the United States for decades, Reyes-Muralles offered scant evidence to


interpretations of the statutes they are entrusted to administer. Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S. Ct. 2778 (1984); Lin v. U.S. Atty. Gen.,
555 F.3d 1310, 1316 n.4 (11th Cir. 2009).
         5
          We review the BIA’s decision as the final judgment, unless the BIA expressly adopted
the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007).

                                                 3
corroborate his continuous presence in the country during the time period in

question. The BIA specifically found that he failed to offer “any contemporaneous

documentation” from the years in question. Contrary to that finding, however, the

record shows Reyes-Muralles did offer some documentation actually generated

during this time period, including a Florida driver’s license issued in 2004 and

three “1099” tax forms issued from his employer in the years 2005, 2006, and

2008. Nevertheless, we cannot say that, when coupled with the IJ’s credibility

determination, this evidence compels the conclusion that Reyes-Muralles

demonstrated his continuous presence in the United States by a preponderance of

the evidence. Consequently, we must deny his petition.

      Reyes-Muralles also asserts that the administrative proceedings were

procedurally deficient, claiming the IJ enforced a clear-and-convincing evidentiary

burden against him, instead of the appropriate preponderance standard. Because

Reyes-Muralles failed to exhaust his administrative remedies with respect to these

claims, we are without jurisdiction to entertain them. 8 U.S.C. § 1252(d). This

lack of jurisdiction extends to Reyes-Muralles’s procedural-due-process claim.

See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006)

(per curiam). Accordingly, his claims of procedural defect are dismissed.




                                         4
      For the foregoing reasons, Reyes-Muralles’s petition for review of the

BIA’s final order is dismissed in part and denied in part.

      DISMISSED IN PART, DENIED IN PART.




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