                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                                May 27, 2009
                             No. 08-16670                     THOMAS K. KAHN
                         Non-Argument Calendar                    CLERK
                       ________________________

                         Agency No. A079-477-494

RENE JERONIMO,


                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                       ________________________

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

                               (May 27, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.

PER CURIAM:
      Rene Jeronimo, a native and citizen of Guatemala, petitions for review of the

Board of Immigration Appeals’s (“BIA”) denial of cancellation of removal,

pursuant to Immigration and Nationality Act (“INA”) § 240A(b)(1)(A), 8 U.S.C.

§ 1229b(b)(1)(A). For the reasons set forth below, we deny the petition.

                                          I.

      Jeronimo entered the United States without inspection on February 15, 1996.

He submitted an application for asylum and withholding of removal. The

application form instructed him that, “Any information provided in completing this

application may be used as a basis for the institution of, or as evidence in, removal

proceedings even if the application is later withdrawn.” On December 1, 2004, the

Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”)

charging that Jeronimo was removable as an alien present without being admitted

or paroled, pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).

      Thereafter, Jeronimo withdrew his application for asylum and withholding

of removal and submitted an application for cancellation of removal. At a hearing,

the government made an oral motion to pretermit Jeronimo’s motion for

cancellation of removal. The Immigration Judge (“IJ”) granted the government’s

oral motion and denied Jeronimo cancellation of removal, reasoning that the NTA

was served within ten years’ of Jeronimo’s entry into the United States, such that

he was ineligible for cancellation of removal, pursuant to INA § 240A(d)(1), 8
                                          2
U.S.C. § 1229b(d)(1).

      Jeronimo, with the aid of counsel, appealed to the BIA, arguing that

application of this time-stop rule to an asylum-seeker such as himself (1) was a

sanction that violated the Administrative Procedures Act (“APA”); (2) set up a

scenario wherein the DHS could abuse the removal process by serving an NTA on

a vulnerable asylum-seeker who was just shy of accruing the requisite ten years’

continuous physical presence in the United States for cancellation-of-removal

purposes and, thereby, forever preclude him from seeking this form of relief; and

(3) violated his due process right to notice and an opportunity to be heard upon

being assessed a negative penalty. The BIA dismissed the appeal, reasoning that

the IJ had correctly applied the time-stop rule and noting that the application form

instructed Jeronimo that the information provided could serve as the basis for the

institution of removal proceedings.

                                         II.

      When the BIA affirms the IJ’s decision, but issues a separate opinion, as

here, we review the BIA’s opinion “except to the extent that [the BIA] expressly

adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). We review legal determinations de novo and factual determinations under

the “substantial evidence test.” See D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 817 (11th Cir. 2004); Al Najjar, 257 F.3d at 1283-84. Under this test, which
                                          3
is “highly deferential,” we “must affirm the BIA’s decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted).

      Pursuant to INA § 240A(b)(1)(A), 8 U.S.C. § 1229b(b)(1)(A), “[t]he

Attorney General may cancel removal of, and adjust to the status of an alien

lawfully admitted for permanent residence, an alien who is inadmissible or

deportable from the United States if the alien (A) 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; (B) has been a person of good moral

character during such period; (C) has not been convicted of [certain offenses]; and

(D) establishes that removal would result in exceptional and extremely unusual

hardship to the alien's spouse, parent, or child, who is a citizen of the United States

or an alien lawfully admitted for permanent residence.” Regarding the requisite

ten years’ continuous physical presence, “any period of continuous residence or

continuous physical presence in the United States shall be deemed to end . . . when

the alien is served a [NTA].” INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).

                                          III.

      As an initial matter, substantial evidence supports the BIA’s finding that

Jeronimo was ineligible for cancellation of removal because he had not established

the requisite ten years’ continuous physical presence in the United States. See INA
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§§ 240A(b)(1)(A), (d)(1), 8 U.S.C. §§ 1229b(b)(1)(A), (d)(1); Al Najjar, 257 F.3d

at 1283-84. Jeronimo arrived in the United States on February 15, 1996, and the

NTA was served less than ten years later, on December 1, 2004. See id. Jeronimo

does not dispute this point.

      Rather, Jeronimo argues that the instant application of the time-stop rule

violated the APA, represented an abuse of the system by the DHS, and violated his

due process rights. First, Jeronimo’s APA-argument lacks merit, as the Supreme

Court has held that the provisions of the APA do not apply in immigration

proceedings because they have been supplanted by the INA. See Ardestani v. INS,

502 U.S. 129, 132-34, 112 S.Ct. 515, 518-19, 116 L.Ed.2d 496 (1991) (“Congress

intended the provisions of the Immigration and Nationality Act of 1952 (INA), 66

Stat. 163, as amended, 8 U.S.C. 1101 et seq., to supplant the APA in immigration

proceedings”). Also, Jeronimo’s argument that the DHS abused the removal

process by serving an NTA on a vulnerable asylum-seeker who was just shy of

accruing the requisite ten years’ continuous physical presence in the United States

for cancellation-of-removal purposes is without merit, as the application form put

Jeronimo on notice that the information he provided could lead to an NTA, and as

initiating removal proceedings on aliens without authority to remain in the United

States is part and parcel of the DHS’s authority. Furthermore, Jeronimo’s due-

process argument is without merit, as this Court has held that, because
                                          5
cancellation of removal is a form of discretionary relief, an alien has no

constitutionally protected right to that form of relief. See Mohammed v. Ashcroft,

261 F.3d 1244, 1250-51(11th Cir. 20001). Accordingly, the BIA did not err in

denying cancellation of removal, and we deny the petition. See D-Muhumed, 388

F.3d at 817.

      PETITION DENIED.




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