                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3326
                                   ___________

Antonio Reyes-Vasquez,                *
                                      *
             Petitioner,              *
                                      * Petition for Review of an Order
       v.                             * of the Immigration & Naturalization
                                      * Service Board of Immigration Appeals.
John Ashcroft, Attorney General       *
of the United States of America,      *
                                      *
             Respondent.              *
                                 ___________

                             Submitted: November 18, 2004
                                Filed: January 25, 2005
                                 ___________

Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES,1 District Judge.
                         ___________

WOLLMAN, Circuit Judge.

       Antonio Reyes-Vasquez petitions for review of the determination of the
Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) that he is not
entitled to cancellation of removal under 8 U.S.C. § 1229b(b). He asserts, however,
that we may not reach the merits of his claim until the BIA issues a reasoned opinion
because, he argues, the BIA’s affirmance without opinion procedure is
unconstitutional under separation of powers principles. We hold that our precedent

      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
answers the constitutional question. We grant his petition as to the cancellation of
removal issue and remand for further proceedings consistent with this opinion.2

                                           I.
       Reyes-Vasquez, a native and citizen of Mexico, first entered the United States
illegally from Mexico on April 1, 1984. He returned to Mexico for about two weeks
in August 1990 to attend to his ailing grandfather. He attempted to reenter the United
States on September 15, 1990, and was arrested by the United States Border Patrol.
He testified that the Border Patrol locked him in a cell for several hours and then put
him “back over the line again” without telling him that he would otherwise have to
go before a judge. Later that day, he successfully reentered the United States
illegally. He remained in the Chicago area until 1999, when he moved to Minnesota.
He received a notice to appear, initiating removal proceedings, on March 20, 2000.
Reyes-Vasquez conceded that he was removable, but applied for relief in the form of
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(A).3 The IJ found Reyes-
Vasquez credible and stated that Reyes would have been entitled to cancellation of
removal except for the fact that his voluntary return to Mexico in 1990 interrupted his
period of continuous physical presence in the United States and caused it to be less


      2
        We deny as moot the petitioner’s motion for stay of removal, subject to
petitioner’s right to renew it if necessary, based on the Government’s representation
that an administrative stay of removal is in place pending our disposition of this
appeal. We deny as untimely his motion for stay of voluntary departure. See Rife v.
Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004).
      3
       To be eligible for cancellation of removal, an alien must be “physically present
in the United States for a continuous period of not less than 10 years immediately
preceding the date of such application,” must be “a person of good moral character,”
must not have been convicted of certain offenses, and must show that his removal
“would result in exceptional and extremely unusual hardship” to a member of his
immediate family who is a citizen or lawful permanent resident. 8 U.S.C. §
1229b(b)(1)(A)-(D).

                                         -2-
than the statutorily required 10 years. Reyes-Vasquez was denied cancellation of
removal on that basis. The BIA issued a summary affirmance on August 22, 2003.

       Reyes-Vasquez and his wife have three sons, one of whom is a United States
citizen and suffers from learning disabilities.

                                          II.
                                          A.
       As our precedent makes clear, the BIA’s choice to use the affirmance without
opinion procedure does not affect our ability to review this case. Reyes-Vasquez
argues that the procedure, 8 C.F.R. § 1003.1(e)(4) (2003),4 is an unconstitutional
violation of separation of powers principles. We have rejected prior challenges to the
procedure, grounded in due process concerns, and conclude that the present challenge
presents no novel issues and must also fail. See Dominguez v. Ashcroft, 336 F.3d
678, 680 (8th Cir. 2003) (holding that the IJ’s decision satisfies the requirement set
out in SEC v. Chenery, 332 U.S. 194, 196-97 (1947), that an agency must set forth
the grounds for its conclusions).

      Reyes-Vasquez’s separation of powers claim fails because nothing in the
challenged regulation changes the relationship between the three branches of
government, for the regulation merely adjusts intra-agency procedures. See 8 C.F.R.
§ 1003.1 (establishing the organization, jurisdiction and powers of the BIA). The
Attorney General, a member of the executive branch, acts within his authority
delegated by Congress when he creates and interprets regulations to accomplish his
immigration management task. See 5 U.S.C. § 301 (stating that the head of an
executive department “may prescribe regulations for the government of his

      4
       The regulation states that the Board member assigned a case “shall affirm” if
he finds that certain criteria are met and that he “shall not include further explanation
or reasoning” but shall state that “[t]he decision below is, therefore, the final agency
determination.” 8 C.F.R. 1003.1(e)(4).

                                          -3-
department, the conduct of its employees, the distribution and performance of its
business, and the custody, use, and preservation of its records, papers, and
property.”); 8 U.S.C. § 1103 (assigning the duties to the Attorney General in the
immigration context, including duties to establish regulations, review immigration
proceedings and “delegate such authority” as he deems necessary). The Attorney
General therefore acts within his authority when he delegates intra-agency to
accomplish the duties given to him by Congress. Whether multiple layers of
independent review and analysis at the administrative level are necessary is therefore
a due process question, not a separation of powers question, and is controlled by our
precedent. See Loulou v. Ashcroft, 354 F.3d 706, 708 (8th Cir. 2003); Dominguez,
336 F.3d at 680.

                                           B.
       An alien may apply for relief in the form of cancellation of removal if he meets
the requirements set out in 8 U.S.C. § 1229b(b). We conclude that we have
jurisdiction to consider Reyes-Vasquez’s contention that the IJ improperly found him
ineligible for such relief. Although the decision to grant cancellation of removal is
a discretionary act by the Attorney General that we may not review, 8 U.S.C. §
1252(a)(2)(B); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir. 2003) (per curiam),
we may consider the predicate legal question whether the IJ properly applied the law
to the facts in determining an individual’s eligibility to be considered for the relief.
See Morales-Morales v. Ashcroft, 384 F.3d 418, 421-22 (7th Cir. 2004); Mireles-
Valdez v. Ashcroft, 349 F.3d 213, 216-17 (5th Cir. 2003) (holding that the continuous
presence requirement “is a nondiscretionary determination because it involves
straightforward statutory interpretation and application of law to fact”). In doing so,
we give substantial deference to the agency’s interpretation of immigration statutes.
See Alfolayan v. INS, 219 F.3d 784, 787 (8th Cir. 2000). Here, the IJ did not exercise
discretionary authority because he determined that Reyes-Vasquez was ineligible for
the relief. The IJ concluded that Reyes-Vasquez met all the requirements except one:
he had not “been physically present in the United States for a continuous period of

                                          -4-
not less than 10 years immediately preceding the date of such application.” 8 U.S.C.
§ 1229b(b)(1)(A). As indicated above, the IJ stated that if Reyes-Vasquez had met
the ten-year requirement, “the Court would grant this application for cancellation of
removal.”

       An alien’s continuous period of physical presence in the United States may be
cut off or broken in several ways. It stops accruing when an alien receives a notice
to appear from the INS. 8 U.S.C. § 1229b(d)(1). It is broken if the petitioner has
committed certain crimes or “has departed from the United States for any period in
excess of 90 days or for any periods in the aggregate exceeding 180 days.” 8 U.S.C.
§ 1229b(d)(2). Our case law establishes that it is also broken “when an alien
voluntarily departs under threat of deportation.” Palomino v. Ashcroft, 354 F.3d 942,
944 (8th Cir. 2004) (finding reasonable the BIA’s interpretation in In re Romalez-
Alcaide, 23 I. & N. Dec. 423 (2002)).

       In this case, it is clear that Reyes-Vasquez was not out of the country more than
90 days, as he returned to Mexico for only about two weeks to visit his ailing
grandfather. The principal question we must resolve, therefore, is whether Reyes-
Vasquez’s experience at the border in 1990 constituted voluntary departure “under
threat of deportation” so as to legally break his continuous period of physical
presence in the United States. We conclude that the record is insufficient to establish
that such a voluntary departure occurred.

      As indicated above, voluntary departure under threat of deportation is the form
of departure that breaks continual presence. See Palomino, 354 F.3d at 944; Morales-
Morales, 384 F.3d at 426. That language implies that there is an expressed and
understood threat of deportation. When an alien is legally permitted to depart
voluntarily, he should “leave[ ] with the knowledge that he does so in lieu of being
placed in proceedings” and therefore has no legitimate expectation that he may



                                          -5-
reenter and resume continuous presence. In re Romalez-Alcaide, 23 I. & N. Dec. 423,
429 (2002) (en banc).

       “There is a significant difference between . . . the Border Patrol simply turning
[the alien] back at the border and voluntary departure under threat of removal
proceedings.” Morales-Morales, 384 F.3d at 427. In cases in which a finding of a
break in continuous presence has been upheld, the threat of deportation was expressed
and understood by the alien. See Palomino, 354 F.3d at 943 (INS officials “gave
[Palomino] the option of voluntarily departing or facing formal administrative
deportation proceedings”); Mireles-Valdez, 349 F.3d at 214 (Mireles-Valdez “agreed
to accept an administrative voluntary departure; and was returned to Mexico without
having proceedings brought against him”); Vasquez-Lopez v. Ashcroft, 343 F.3d 961,
969 (9th Cir. 2003) (per curiam) (Vasquez-Lopez was arrested, admitted
deportability, requested voluntary departure, and was escorted to Mexico by the
Border Patrol), amending 315 F.3d 1201 (9th Cir. 2003). The alien is unlikely to
have understood the threat and its consequences, however, if the record fails to
establish that any communication about the possibility of deportation occurred and
the alien credibly testifies that he was simply released back over the border. See
Morales-Morales, 384 F.3d at 427 (noting Morales-Morales’s testimony that the
Border Patrol “just took me, threw me around, and turned me back”).

       In 1990, the U.S. Border Patrol had the authority to grant voluntary departure
to an alien “[w]ho is a native of a foreign contiguous territory” such as Mexico. See
8 C.F.R. § 242.5 (1990). Voluntary departures, which are formal and legally binding
grants, were commonly documented in an alien’s file, see Deportation Officer’s
Handbook, Immigration and Naturalization Service (Handbook), Ch. 1, ¶ 1-4 (1986),
even though extensive docket control was not necessary for cases involving
immediate departure. Id. at ¶ 1-2 (noting that I-274/274A and “satisfactory
departure” cases do not require docket control). The Handbook stated:



                                          -6-
      When an alien has been granted voluntary departure and removed at
      Government expense, care should be taken to leave written evidence in
      the alien’s file indicating the date of removal and the cost of the
      removal. Form I-274/274A has a portion devoted to this at the bottom
      of the form. Cases, other than I-274/274A cases, should have a memo
      to the file indicating the above information.

Id. at ¶ 1-4.5 If no government expense was involved, however, a “satisfactory
departure” was often just “noted on the reverse of the alien’s Form I-94" and not
otherwise recorded. See Detention and Deportation Officers’ Field Manual,
Department of Homeland Security, Ch. 11.8 (2002) (noting that the practice was
common prior to 1997).



      5
        Notably, the current versions of these documents make the requirements of
documentation and communication more clear, noting the need to establish that the
alien “was fully aware of the terms and conditions attached to the grant.” Detention
and Deportation Officers’ Field Manual Ch. 11.8 (2002) (Field Manual). The
Department of Homeland Security regulation states that “[e]very decision regarding
voluntary departure shall be communicated in writing on Form I-210, Notice of
Action—Voluntary Departure. Voluntary departure may not be granted unless the
alien requests such voluntary departure and agrees to its terms and conditions.” 8
C.F.R. § 240.25 (2004). In addition, the Field Manual clarifies that:

      [i]t is most important that arresting officers understand and
      communicate to aliens being granted voluntary departure that failure to
      depart under the terms given will not only result in the alien being
      placed in removal proceedings, but will also preclude him or her from
      receiving any grant ov voluntary departure for a period of 10 years, . . . .

      It is essential that no voluntary departure period be granted without
      issuance of Form I-210 (Rev 4/1/97) and that the affected alien be made
      aware of and agree to the terms of such a grant.

Field Manual Ch. 11.8 (emphasis in original).

                                          -7-
      We conclude that before it may be found that a presence-breaking voluntary
departure occurred, the record must contain some evidence that the alien was
informed of and accepted its terms. When viewed in the light of this requirement, we
believe that the facts of this case are more analogous to the facts in Morales-Morales,
384 F.3d 418, than Palomino, 354 F.3d 942. Reyes-Vasquez credibly testified that
he was detained by the Border Patrol but did not go before an IJ and was not told that
he would have to go to court. He stated only that he was briefly detained,
fingerprinted, and placed on a bus heading back into Mexico, from where he
reentered the United States again that very evening.6 Lacking any further details
regarding the circumstances under which Reyes-Vasquez returned to Mexico, the
record is insufficient to support a finding that Reyes-Vasquez knowingly agreed to
administrative voluntary departure under 8 U.S.C. § 1252(b)(4) (1990) and was made
aware that he would otherwise face removal proceedings.

      If Reyes-Vasquez was “simply returned to the border” without voluntarily
departing under an expressed threat of deportation or removal proceedings, his
departure did not constitute a break in his continuous physical presence. See
Morales-Morales, 384 F.3d at 428. Accordingly, we remand to the agency for


      6
         At oral argument, the government cited Form I-213 (“Record of Deportable/
Inadmissible Alien”) as proof of Reyes-Vasquez’s voluntary departure. See A.R. 510.
Special Agent Michael Diaz filled out the form after Reyes-Vasquez was arrested for
driving while intoxicated in March 2000. The agent’s notes on the form, presumably
based on an interview with Reyes-Vasquez, summarize Reyes-Vasquez’s 1990 border
arrest in the following terms: “[s]ubject read his administrative rights outloud and
states that he understood them. Subject requested a voluntary return to Mexico.” The
information in this document, if acknowledged by Reyes-Vasquez to be correct and
if further developed with respect to the rights that he was advised of, might support
a finding that Reyes-Vasquez’s September 5, 1990, return to Mexico did indeed
constitute a voluntary departure that broke his continue presence in this country. As
it is, however, under the standard we have articulated above, the form alone does not
override Reyes-Vasquez’s credible testimony to the contrary.
                                         -8-
specific factual findings on that question and for further proceedings consistent
therewith.
                       ______________________________




                                       -9-
