                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0111n.06

                                          No. 15-3554

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Feb 25, 2016
LUIS CRUZ-OSORNIO,                                      )                DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner,                                      )
                                                               ON PETITION FOR REVIEW
                                                        )
                                                               FROM THE UNITED STATES
v.                                                      )
                                                               BOARD OF IMMIGRATION
                                                        )
                                                               APPEALS
LORETTA LYNCH, Attorney General,                        )
                                                        )
       Respondent.                                      )


       Before: GRIFFIN and KETHLEDGE, Circuit Judges; CLELAND, District Judge.*

       KETHLEDGE, Circuit Judge. Luis Cruz-Osornio petitions for review of a Board of

Immigration Appeals determination that he is ineligible for cancellation of removal because he

lacks 10 years’ continuous presence in the United States. We deny the petition.

       Cruz-Osornio, a Mexican national, entered the United States without inspection in 1998

and settled in this country illegally. In 2003 the government served him with a notice to appear

for removal proceedings pursuant to 8 U.S.C. § 1229(a). Thereafter an immigration judge

allowed Cruz-Osornio to depart the United States voluntarily by January 2005. See 8 U.S.C.

§ 1229c(a)(1). Cruz-Osornio left for Mexico in December 2004 and returned without inspection

to the United States less than a month later, in January 2005. In February 2010, police arrested

Cruz-Osornio for driving without a license. The Department of Homeland Security later served

him with another notice to appear for removal proceedings.




       *
        The Honorable Robert H. Cleland, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 15-3554, Cruz-Osornio v. Lynch


       In August 2011, Cruz-Osornio filed an application for cancellation of removal under

8 U.S.C. § 1229b(b). That provision affords the Attorney General discretion to cancel an alien’s

removal if, among other things, the alien was “physically present in the United States for a

continuous period of not less than 10 years immediately preceding the date of [his] application.”

8 U.S.C. § 1229b(b)(1)(A). An immigration judge reviewed Cruz-Osornio’s application and

found that he did not qualify for cancellation of removal because he had not been continuously

present in the United States for 10 years. The Board of Immigration Appeals agreed and

dismissed Cruz-Osornio’s appeal.

       Cruz-Osornio now argues that the Board erred as a matter of law in concluding that he

lacks ten years’ continuous presence in the United States. Specifically, he contends that his

physical presence under 8 U.S.C. § 1229b(b)(1)(A) should be measured from the date he first

entered the United States in 1998, not from the date of his re-entry in 2005. We review de novo

the Board’s legal determinations, and uphold the Board’s factual findings so long as they are

supported by substantial evidence. See Hanna v. Holder, 740 F.3d 379, 386 (6th Cir. 2014).

       The immigration statute prescribes “[s]pecial rules relating to continuous residence or

physical presence[.]” 8 U.S.C. § 1229b(d). Among these is that “any period of . . . continuous

physical presence . . . shall be deemed to end . . . when the alien is served a notice to appear

under section 1229(a) of this title[.]” 8 U.S.C. § 1229b(d)(1).

       The Board’s opinion states that Cruz-Osornio “was given voluntary departure after the

issuance of a Notice to Appear and a grant of voluntary departure in 2004.” That qualifies as a

presumptively accurate finding of fact. See 8 U.S.C. § 1252(b)(4)(B); Khozhaynova v. Holder,

641 F.3d 187, 191 (6th Cir. 2011). Moreover, in proceedings before the immigration judge,

Cruz-Osornio acknowledged that he appeared before an immigration judge in 2003 after he was

issued a notice to appear for removal proceedings. The undisputed reality is that, no later than

2003, Cruz-Osornio received a notice to appear for removal proceedings. Cruz-Osornio’s first

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No. 15-3554, Cruz-Osornio v. Lynch


period of continuous physical presence in the United States ended when he was first served with

a notice to appear for removal proceedings. See Gonzalez-Garcia v. Holder, 770 F.3d 431, 435

(6th Cir. 2014). Cruz-Osornio then began a new period of continuous physical presence in early

2005, when he returned without inspection to the United States. Thus, when the government

served Cruz-Osornio with a second notice to appear in 2010, he had been in the United States

continuously for only five years. Cruz-Osornio therefore lacked ten years’ continuous presence

in the United States for purposes of section 1229b(b), which means he is ineligible for relief

under that provision.

       The petition for review is denied.




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