                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

NEFTALI LANDIN-ZAVALA,                      
                              Petitioner,            No. 04-70765
                    v.
                                                     Agency No.
                                                     A74-413-910
ALBERTO R. GONZALES, Attorney
General,                                               OPINION
                     Respondent.
                                            
           On Petition for Review of an Order of the
                Board of Immigration Appeals

                     Argued and Submitted
              April 18, 2007—Pasadena, California

                         Filed May 25, 2007

Before: Jerome Farris and Ronald M. Gould, Circuit Judges,
         and Kevin Thomas Duffy,* District Judge.

                      Opinion by Judge Duffy




   *The Honorable Kevin Thomas Duffy, Senior Judge, United States Dis-
trict Court for the Southern District of New York, sitting by designation.

                                  6233
                 LANDIN-ZAVALA v. GONZALES              6235


                        COUNSEL

Kevin A. Bove, Escondido, California, for the petitioner.
6236              LANDIN-ZAVALA v. GONZALES
Nancy Friedman, United States Department of Justice, Wash-
ington, DC, for the respondent.


                          OPINION

DUFFY, District Judge:

   Neftali Landin-Zavala (“Petitioner”), a native and citizen of
Mexico, petitions for the review of a final order denying his
application for cancellation of removal under section 240A(b)
of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1229b(b). The order was entered by the Board of Immigra-
tion Appeals (the “Board”) on January 23, 2004, affirming
Immigration Judge Ignacio P. Fernandez’s decision of Sep-
tember 9, 2002. Petitioner argues that neither his formal order
of exclusion nor his voluntary return to Mexico subsequent to
apprehension by the U.S. border patrol later that month ended
his continuous physical presence in the United States for pur-
poses of the cancellation of removal statute. We find Petition-
er’s arguments to be without merit, and the petition is denied.

   According to Petitioner’s testimony, he first came to the
United States in August 1990, and was apprehended by the
(former) Immigration & Naturalization Service (“INS”) bor-
der patrol, who allowed him to return to Mexico voluntarily.
Shortly thereafter, he reentered the United States and
remained until 1995 when he went to Mexico to visit his
mother. He returned to the United States approximately a
month later and remained until 1996, when he again traveled
to Mexico. Upon Petitioner’s attempted return, he was appre-
hended by the INS and placed in exclusion proceedings. On
June 12, 1996, an Immigration Judge ordered that Petitioner
be “excluded and deported” from the United States. See Order
of Immigration Judge Zsa Zsa DePaolo, June 12, 1996. Sev-
eral days after his deportation, Petitioner reentered the United
States, and was again apprehended by the INS at the border.
                  LANDIN-ZAVALA v. GONZALES                 6237
On this occasion, he was temporarily detained and then
allowed to voluntarily return to Mexico. A few days after his
return, Petitioner yet again illegally entered the United States,
and remained undiscovered until the INS commenced
removal proceedings against him in February of 2002.

   In response to the most recent removal proceedings, Peti-
tioner applied for cancellation of removal for certain nonper-
manent residents pursuant to section 240A(b)(1) of the INA,
8 U.S.C. § 1229b(b)(1). Judge Fernandez denied Petitioner’s
application for cancellation of removal, finding that his
accrued period of physical presence was interrupted in June
of 1996, both when he was deported to Mexico and when he
voluntarily departed later in the month. Petitioner appealed to
the Board, who affirmed Judge Fernandez’s decision, without
opinion, on January 23, 2004.

    This court reviews the Board’s non-discretionary factual
determinations, including the determination of continuous
physical presence, for “substantial evidence.” See Ibarra-
Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) (quot-
ing Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th
Cir. 2004)). “Substantial evidence is ‘more than a mere scin-
tilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’ ” Id. (quot-
ing Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.
2003), amended by 339 F.3d 1012 (9th Cir. 2003)). The
Board’s decision that Petitioner did not accrue the requisite
ten years of continuous physical presence for purposes of the
cancellation of removal statute was supported by substantial
evidence, and its decision will be affirmed.

   [1] The Illegal Immigration Reform and Immigrant
Responsibility Act (the “IIRIRA”), Pub. L. 104-208, 110 Stat.
3009 (1996) provides for cancellation of removal when an
alien who is not a lawful permanent resident can demonstrate,
among other things, that his “removal would result in excep-
tional and extremely unusual hardship to the alien’s spouse,
6238                 LANDIN-ZAVALA v. GONZALES
parent, or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence,” and that he
has had continuous physical presence in the United States for
the ten years prior to either the date he applied for cancella-
tion of removal or when he was served with a notice to
appear. 8 U.S.C. §§ 1229b(b)(1) and (d)(1).1 Pursuant to 8
U.S.C. § 1229b(b)(1):

      The 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 appli-
      cation;

      (B) has been a person of good moral character dur-
      ing such period;

      (C) has not been convicted of an offense under sec-
      tion 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this
      title, subject to paragraph (5); and

      (D) establishes that removal would result in excep-
      tional 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 per-
      manent residence.
  1
    The continuous physical presence requirement was initially established
through a 1948 amendment to the Alien Act of 1940. The argument pur-
ported in favor of this amendment was that it was necessary to provide an
opportunity for relief to individuals who have resided in the United States
for many years, but were nevertheless technically deportable. S. Rep. No.
80-1204 (1948). See also Tapia v. Gonzales, 430 F.3d 997, 1000 (9th Cir.
2005).
                     LANDIN-ZAVALA v. GONZALES                       6239
   Petitioner’s executed order of exclusion and subsequent
deportation to Mexico, as well as his voluntary return to Mex-
ico after his apprehension by INS officers later in the month,
were clearly sufficient to end his continuous physical pres-
ence in the United States.

   [2] Not every departure from the United States constitutes
a break in an alien’s accrual of “continuous physical pres-
ence” for purposes of the cancellation of removal statute. See
Tapia v. Gonzales, 430 F.3d 997, 998 (9th Cir. 2005) (“A
short departure from the United States, such as a brief return
to the alien’s native country for family reasons, does not nec-
essarily interrupt the accrual of an alien’s period of physical
presence in the United States, pursuant to an exception for
brief absences provided in 8 U.S.C. § 1229b(d)(2).”).
Although an absence for a period in excess of 90 days breaks
an alien’s continuity of presence, 8 U.S.C. § 1229b(d)(2), an
absence of shorter duration does not necessarily have the
same effect.

   [3] In Tapia and Ibarra-Flores v. Gonzales, 439 F.3d 614
(9th Cir. 2006), this Court held that being turned away at the
border by immigration officials does not have the same effect
as an “administrative voluntary departure”2 and does not itself
interrupt the accrual of an alien’s continuous physical pres-
ence. When an alien leaves pursuant to an administrative vol-
untary departure:

      [he] leaves with the knowledge that he does so in
      lieu of being placed in proceedings. The clear objec-
      tive of an enforced departure is to remove an illegal
  2
    An “administrative voluntary departure” is a “term of art, denoting a
form of relief from removal provided for by statute.” Tapia, 430 F.3d at
998 n.2. In Vasquez-Lopez v. Ashcroft, this court deferred to the Board’s
conclusion in In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) (en
banc), and held that an “administrative voluntary departure” interrupted an
alien’s continuous physical presence. See Vasquez-Lopez v. Ashcroft, 343
F.3d 961, 972 (9th Cir. 2003) (per curiam).
6240                LANDIN-ZAVALA v. GONZALES
      alien from the United States. There is no legitimate
      expectation by either of the parties that an alien
      could illegally reenter and resume a period of contin-
      uous physical presence.

   See Tapia 430 F.3d at 1002; Vasquez-Lopez v. Ashcroft,
343 F.3d 961, 973 (9th Cir. 2003) (quoting Romalez-Alcaide,
23 I. & N. Dec. 423, 429 (BIA 2002) (en banc)). “[A]n agree-
ment to accept voluntary departure is akin to a plea bargain
in which the alien gives up any expectation that the alien can
‘illegally reenter and resume a period of continuous physical
presence.’ ” Ibarra-Flores, 439 F.3d at 620 (quoting Tapia,
430 F.3d at 1002).

   [4] In this case, it is not necessary to belabor the issue of
whether Petitioner underwent an “administrative voluntary
departure” in light of the fact that he had been excluded ear-
lier in the same month. The formal exclusion order, stating
that Petitioner was both “excluded” and “deported,” ends the
inquiry. In Romalez-Alcaide, the Board held that an alien’s
continuous physical presence is deemed to end when he is
deported from the United States or when he is compelled to
depart the United States under threat of removal proceedings.
See Romalez-Alcaide, 23 I. & N. Dec. at 429. Recently, in
Juarez-Ramos v. Gonzales, it was held that even an expedited
removal order was sufficient to interrupt a period of continu-
ous physical presence. See Juarez-Ramos v. Gonzales, Nos.
05-72472, 05-75364, 2007 WL 1330910, at *1 (9th Cir. May
8, 2007). It could not be any clearer that the accrual of Peti-
tioner’s continuous physical presence was terminated when
the formal exclusion order was entered against him and he
was deported.

  [5] Petitioner makes the strained argument that, because he
was placed in “exclusion” proceedings,3 he did not make an
  3
   Since the enactment of the IIRIRA, “exclusion” and “deportation” pro-
ceedings have been merged into the broader category of “removal” pro-
                     LANDIN-ZAVALA v. GONZALES                      6241
entry into the United States and therefore was never deported.
Petitioner cites no authority in support of his position.
Romalez-Alcaide opines that “[a]n order of removal is
intended to end an alien’s presence in the United States, as
was an order of deportation under prior law.” See Romalez-
Alcaide, 23 I. & N. Dec. at 426. We adopt this holding, as it
makes good sense and comports with the overall objectives of
the IIRIRA. We conclude that the order that excluded the
Petitioner and Petitioner’s deportation pursuant to that order
ended his physical presence in the United States.

   [6] Even if the exclusion order had not sealed Petitioner’s
fate, this case is clearly distinguishable from Tapia and
Ibarra-Flores. Here, Petitioner was not merely turned around
at the border but had been through formal exclusion proceed-
ings before an immigration judge and ordered excluded a
month earlier. Undoubtedly Petitioner had no legitimate
expectation that he could illegally reenter the United States
and resume the accrual of his continuous physical presence
after he voluntary departed subsequent to a formal exclusion
order. See, e.g., Vasquez-Lopez, 343 F.3d at 973. Any other
result would defy logic and run afoul of the objectives of the
IIRIRA. See Romalez-Alcaide, 23 I. & N. Dec. at 429.

   [7] Petitioner’s contention that he fulfilled the requirement
of 8 U.S.C. § 1229b(b)(1)(A), and that his application for can-
cellation of removal should have been granted based on ten
years of continuous physical presence, is without merit. Peti-
tioner illegally entered the United States five times since
August of 1990. There was an executed order of exclusion, a
deportation, an INS arrest, and a voluntary exit due to the

ceedings. See Kalaw v. I.N.S., 133 F.3d 1147, 1149 n.2 (9th Cir. 1997).
Before the IIRIRA was enacted, there were separate “exclusion” proceed-
ings (for persons seeking admission into the United States) and “deporta-
tion” proceedings (for persons who had already entered the United States).
However, the exclusion order signed by the immigration judge in June of
1996 stated that the “[a]pplicant has been ordered excluded and deported
from the United States.” (emphasis added).
6242              LANDIN-ZAVALA v. GONZALES
threat of deportation proceedings that all transpired during the
course of the alleged ten years of continuous physical pres-
ence at issue. There was more than substantial evidence to
properly deny Petitioner’s application. The petition is
DENIED.
