                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                      No. 10-1230
                      ___________

                  GAD DEMANDSTEIN,
                              Petitioner

                            v.

   ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent
      ____________________________________

        On Petition for Review of an Order of the
             Board of Immigration Appeals
                     (A071-875-923)
      Immigration Judge: Honorable Annie S. Garcy
       ____________________________________

     Submitted Pursuant to Third Circuit LAR 34.1(a)
                   February 23, 2011

 Before: FUENTES, VANASKIE and NYGAARD, Circuit
                     Judges

            (Opinion filed: February 24, 2011)

Lauren A. Anselowitz
Harlan York & Associates
60 Park Place
Suite 1010
Newark, NJ 07102

Robert A. Frank
Frank & Pollack
                            1
972 Broad Street
Suite 602
Newark, NJ 017102

      Counsel for Petitioner

Eric H. Holder, Jr.
Tony West
John C. Cunningham, I
Regina A. Byrd
Thomas W. Hussey
Don G. Scroggin
United States Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044-0878

      Counsel for Respondents

                        ___________

                OPINION OF THE COURT
                     ___________

FUENTES, Circuit Judge.

       Gad Demandstein, a native and citizen of Israel,
petitions for review of a final order of removal. For the
reasons that follow, we hold that the record supports the
Board of Immigration Appeals‟s (“BIA”) determination that
Demandstein is ineligible for cancellation of removal under
INA § 240A(b)(1), and will deny the petition for review.

                               I.

        Demandstein, formerly “Gad Yahalomi,” first entered
the United States in 1987 on a visitor visa and overstayed. In
1990 and 1991, he again entered as a visitor and overstayed
each time. In 2004, Demandstein applied for an adjustment
of status based on an employer‟s approved immigrant petition

                               2
for an alien worker. The Department of Homeland Security
(“DHS”) denied the request to adjust status because
Demandstein failed to submit an affidavit detailing his past
attempts to enter the United States, and because he was
arrested in 1992 for attempting to smuggle another alien into
this country.

       In 2007, DHS served a Notice to Appear, charging
Demandstein as inadmissible for being present without being
admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), and as an
alien who knowingly encouraged or assisted another alien in
trying to enter the United States illegally, id. §
1182(a)(6)(E)(i). In proceedings before an Immigration
Judge (“IJ”), Demandstein conceded both grounds and he was
deemed inadmissible as charged.

        Demandstein applied for cancellation of removal under
INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which permits the
Attorney General to cancel removal if an inadmissible alien
meets certain requirements, including a showing that he “has
been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the
date of such application[.]” 8 U.S.C. § 1229b(b)(1)(A). DHS
moved to disallow Demandstein‟s application on the ground
that he cannot make this showing. It argued that, because
Demandstein withdrew an application for admission to the
United States in 1999 when he was refused entry at the
Canadian border, the continuity of his period of physical
presence terminated at that time. Consequently, DHS argued,
Demandstein cannot show ten continuous years of presence
prior to being served with the Notice to Appear in 2007.

       The IJ granted DHS‟s motion, concluding from the
evidence presented at an evidentiary hearing on the issue that
Demandstein “knowingly withdrew his application for
admission [in 1999] and terminated his period of continuous
physical presence by doing so.” A.R. at 49. The IJ ordered
removal to Israel. The BIA dismissed Demandstein‟s appeal.
It found that his “actions show that the withdrawal of [his]
application for admission, in lieu of a formal determination of
admissibility, was made with the understanding that [he] had
no legitimate expectation that he could legally reenter the
                              3
United States and resume his continuous physical presence in
this country.” A.R. at 4. Consequently, the BIA held that
Demandstein is ineligible for cancellation of removal.
Demandstein timely filed a petition for review.

                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a) to
review the question of Demandstein‟s statutory eligibility for
cancellation of removal. See Okeke v. Gonzales, 407 F.3d
585, 588 n.4 (3d Cir. 2005); Mendez-Reyes v. Att‟y Gen.,
428 F.3d 187, 189 (3d Cir. 2005). “Where, as here, the BIA
issues a decision on the merits and not simply a summary
affirmance, we review the BIA‟s, not the IJ‟s, decision.” Li
v. Att‟y Gen., 400 F.3d 157, 162 (3d Cir. 2005). “We review
the BIA‟s legal determinations de novo, subject to established
principles of deference.” Wang v. Ashcroft, 368 F.3d 347,
349 (3d Cir. 2004). “We apply substantial evidence review to
agency findings of fact, departing from factual findings only
where a reasonable adjudicator would be compelled to arrive
at a contrary conclusion.” Mendez-Reyes, 428 F.3d at 191.

       Demandstein argues on appeal that he did not
knowingly withdraw his application for admission to this
country in 1999, and therefore did not end his period of
continuous physical presence under § 1229b(b)(1)(A),
because he retained a legitimate expectation that he could
reenter the United States and resume his period of continuous
presence. We discern no error in the BIA‟s rejection of this
argument.

       “[A]n alien applying for cancellation of removal must
establish at least ten years of continuous physical presence in
the United States under § 1229b(b)(1)(A).” Mendez-Reyes,
428 F.3d at 191. “Section 1229b(d) sets forth two situations
in which continuous presence is deemed to have been
broken.” Id. First, physical presence ends when an alien is
served a notice to appear or has committed an applicable
criminal offense. 8 U.S.C. § 1229b(d)(1). Second, an alien
fails to maintain continuous physical presence if he has
departed from the United States “for any period in excess of
90 days or for any periods in the aggregate exceeding 180
                              4
days.” Id. § 1229b(d)(2).

       Continuous physical presence also can end for reasons
other than those set forth in § 1229b(d). For example, the
BIA has held that continuous presence is broken when an
alien voluntarily departs under threat of removal proceedings.
See Matter of Romalez-Alcaide, 23 I. & N. Dec. 423, 429
(B.I.A. 2002). When an “alien leaves with the knowledge
that he does so in lieu of being placed in proceedings[,] …
[t]here is no legitimate expectation by either of the parties
that an alien could illegally reenter and resume a period of
continuous physical presence.” Id. This Court has approved
of the reasoning in Romalez-Alcaide as a permissible
construction of § 1229b. Mendez-Reyes, 428 F.3d at 192.
Further, we held in Mendez-Reyes that an alien‟s withdrawal
of an application for admission to the United States, inasmuch
as it is identical in effect to an acceptance of voluntary
departure in lieu of removal proceedings, terminates an
alien‟s continuous physical presence for purposes of §
1229b(b)(1)(A). Id. at 193.


       As the BIA observed, the issue here “is whether
[Demandstein], upon returning from a [brief] trip to Canada
[in 1999], knowingly withdrew his application for admission
to the United States in lieu of a formal determination of
inadmissibility, so that [his] continuous physical presence in
this country was terminated and he was rendered statutorily
ineligible for cancellation[.]” A.R. at 3. The IJ held an
evidentiary hearing on the issue, and Demandstein testified at
the hearing. The BIA summarized the pertinent facts
established before the IJ as follows:

      It is undisputed that [Demandstein] was refused
      permission to enter the United States at the
      Canadian border [in 1999] and told that his
      [non-immigrant] visa had been cancelled.
      [Demandstein] was advised by an immigration
      attorney to return to Israel and apply for a new
      visa to enter the United States. [Demandstein]
      signed a formal withdrawal of his application
      for admission which explained that he was
                              5
       doing so in lieu of a formal determination of
       admissibility, although [Demandstein] now
       claims that he did not understand what he was
       signing. [Demandstein] returned to Israel [for
       approximately two months] and obtained a new
       passport under a different name. [Demandstein]
       testified that he applied for a new visa but
       apparently abandoned the application after he
       was told the process would take several months.
       [Demandstein] returned to the United States
       without a valid entry visa after bypassing the
       [Canadian] border checkpoint by walking into
       this country through the woods, without
       inspection.

A.R. at 3-4 (citation to the record and footnote omitted).

       At the time he was refused entry at the border
checkpoint, Demandstein signed a two-page form titled
“Withdrawal of Application for Admission/Consular
Notification” (Form I-275). Demandstein concedes that his
signature appears on the Form I-275 that DHS submitted into
evidence before the IJ.         This document reflects that
Demandstein‟s visa was cancelled, that he had chosen to
withdraw his application for admission, and that his
admissibility was in question because of “Alien smuggling
1992.” A.R. at 161. Demandstein‟s signature on the Form
appears directly under the following language:

       I understand that my admissibility is questioned
       for the above reasons, which I have read or
       which have been read to me in the English
       language. I request that I be permitted to
       withdraw my application for admission and
       return abroad. I understand that my voluntary
       withdrawal of my application for admission is
       in lieu of a formal determination concerning my
       admissibility … by an immigration officer.

A.R. at 162. There is no dispute that Demandstein fully
understands English.

                               6
       The BIA rejected Demandstein‟s argument that he
unknowingly withdrew the application for admission,
explaining that the argument “was undermined by
[Demandstein‟s] conduct in returning to Israel to obtain a new
passport under a different name, his decision not to pursue a
new visa, and his evasion of border authorities upon
reentering the United States.” A.R. at 4. The BIA found that
Demandstein‟s withdrawal “was made with the understanding
that [he] had no legitimate expectation that he could legally
reenter the United States and resume his continuous physical
presence in this country.” Id.

       The record supports the BIA‟s findings. In addition to
the undisputed evidence that he signed Form I-275,
Demandstein‟s actions provide ample support for the finding
that he knowingly withdrew the application for admission in
lieu of a proceeding on admissibility, with the consequence
that he could not expect to resume his continuous physical
presence after doing so. Demandstein devotes much of his
argument on this appeal to highlighting portions of the
administrative record -- mainly in the form of his own
testimony before the IJ -- which he believes support a finding
that he did not knowingly withdraw the application for
admission. His argument fails, however, in light of the
limited scope of this Court‟s review. In considering the
BIA‟s determination, we must “uphold the findings of the
BIA to the extent that they are supported by reasonable,
substantial and probative evidence on the record considered
as a whole, and will reverse those findings only if there is
evidence so compelling that no reasonable factfinder could
conclude as the BIA did.” Kayembe v. Ashcroft, 334 F.3d
231, 234 (3d Cir. 2003). Consequently, even accepting that a
factfinder could conclude that there is some evidence of
record to support Demandstein‟s position, he has not shown
that the record as a whole compels a finding that his
withdrawal of the application for admission was unknowing.

      Furthermore, our holding in Mendez-Reyes -- that
withdrawal of an application for admission in lieu of a
determination of admissibility ends continuous physical
presence -- controls the legal effect of Demandstein‟s actions.

                              7
We observed in Mendez-Reyes that whether an alien is
granted permission to withdraw an application for admission
lies within the Attorney General‟s discretion and is not
merely a unilateral decision on the alien‟s part. 428 F.3d at
193. Further, the alien in Mendez-Reyes, like Demandstein,
signed a form acknowledging his voluntary withdrawal of the
application for admission in lieu of a determination on
admissibility. Id. An alien‟s “acquisition of permission to
withdraw his application is identical to being granted
voluntary departure insofar as [he] obtained that permission
in order to avoid the perils of removal proceedings,” and thus
it terminates the period of continuous physical presence. Id.

       Demandstein argues that his circumstances can be
distinguished from Mendez-Reyes. He concedes that he
signed Form I-275, but he claims that the circumstances
surrounding the signing, including that he was refused
admission at the border and told to reapply for a visa in Israel
rather than being paroled into this country, show that he did
not fully understand the import of withdrawing the
application for admission, and therefore he retained an
expectation that he could reenter and resume his continuous
physical presence. Demandstein argues that his case should
be viewed as similar to those in which an alien is turned away
at the border and later reenters without inspection, a scenario
that would not serve to break the period of continuous
physical presence.

       Demandstein‟s attempt to evade the precedential force
of Mendez-Reyes is unpersuasive. Courts have recognized
that “continuous physical presence is not interrupted if a
person is merely stopped at the border and turned away
without any more formality.” Valadez-Munoz v. Holder, 623
F.3d 1304, 1311 (9th Cir. 2010); see Ascencio-Rodriguez v.
Holder, 595 F.3d 105, 111 (2d Cir. 2010) (“Although no
Court of Appeals has rejected the central holding of In re
Romalez-Alcaide, several have held that it does not apply in
cases where an alien is simply turned away at the border”). In
Matter of Avilez-Nava, the BIA held, consistent with circuit
court precedent, that being turned away at the border without
formal acceptance of voluntary departure does not break

                               8
continuous physical presence. 23 I. & N. Dec. 799, 805
(B.I.A. 2005). The BIA made clear, however, that “an
immigration official‟s refusal to admit an alien at a land
border port of entry will not constitute a break in the alien‟s
continuous physical presence, unless there is evidence that the
alien … was offered and accepted the opportunity to
withdraw his or her application for admission[.]” Id.
(emphasis added).

        Demandstein was not merely turned away at the
border. Instead, border officials cancelled the visa that he
presented, noted that his admissibility was in question due to
a prior arrest, and presented Form I-275. There is no
evidence that Demandstein could have failed to appreciate the
language of Form I-275, which, given his signature on the
document, is sufficient to establish that he voluntarily
requested permission to withdraw his application and return
abroad, and that he did so in lieu of a proceeding to determine
his admissibility. Had Demandstein “allowed immigration
proceedings to be initiated against him in 199[9], his
continuous physical presence would have been automatically
terminated under § 1229c(d)(1),” Mendez-Reyes, 428 F.3d at
193, and thus, rather than face certain interruption of the
continuous-presence period, Demandstein elected to
withdraw the application for admission and return to Israel to
apply for a new visa. But “[j]ust as with a voluntary
departure, neither the government nor [Demandstein] himself
could have a „legitimate expectation . . . that [he] could
illegally reenter and resume a period of continuous physical
presence.‟” Id. (quoting Romalez-Alcaide, 23 I. & N. Dec. at
429). Demandstein, therefore, cannot “benefit from the fact
that he managed to illegally reenter the United States before
the 90-day time frame expired[.]” Id.

                             III.

       In sum, we find no error in the BIA‟s determination
that Demandstein is unable to satisfy the ten-year continuous
physical presence requirement of § 1229b(b)(1)(A), and is
therefore ineligible for the relief of cancellation of removal.
Accordingly, we will deny the petition for review.

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