                       REVISED April 20, 2011

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                                                 FILED
                                                                 April 4, 2011
                                No. 09-60862
                                                               Lyle W. Cayce
                                                                    Clerk
CIRILO RAMOS-TORRES, also known as Cirilo Ramos,
also known as Cirilo R. Torres,

                                          Petitioner
v.

ERIC H. HOLDER, JR., U.S. Attorney General,

                                          Respondent



                        Petition for Review of an Order
                     of the Board of Immigration Appeals


Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
      Petitioner Cirilo Ramos-Torres, a Mexican citizen, was convicted in 1982
for illegal entry into the United States. He was sentenced to three years of
unsupervised probation that was conditioned on his making no illegal return to
the United States. Ramos-Torres requested an administrative voluntary
departure in lieu of deportation, which was granted, and he returned to Mexico.
At some point during the next decade, Ramos-Torres did illegally reenter the
United States, and, in 1993, he became a lawful permanent resident (LPR). In
2006, Ramos-Torres was convicted for illegally transporting aliens and was
                                        No. 09-60862

ordered removed from the United States. Ramos-Torres applied for cancellation
of removal as an LPR, but the Immigration Judge (IJ) determined as a matter
of law that he had never been eligible for LPR status because of his 1982
voluntary departure, and thus he was ineligible for cancellation of removal. The
BIA affirmed the IJ’s decision. We agree and deny Ramos-Torres’s petition for
review.
                             I. FACTS & PROCEEDINGS
A. Facts
      In 1980, Ramos-Torres, a Mexican citizen, illegally entered and began
residing in the United States. In March 1982, the former Immigration and
Naturalization Service (INS) apprehended Ramos-Torres while he was illegally
transporting aliens. Ramos-Torres pleaded guilty only to the offense of
unlawfully entering the United States and was convicted on that count. He was
subsequently sentenced to three years of unsupervised probation conditioned on
his “making no illegal return to the United States.” As noted, Ramos-Torres
applied for an administrative voluntary departure in lieu of deportation
proceedings, which was granted, and he returned to Mexico.
      Ramos-Torres did illegally return to the United States, however, allegedly
right after he voluntarily departed in March 1982. In 1993, he applied for and
was granted LPR status under the amnesty provision of the Immigration Reform
and Control Act of 19861 (IRCA).
      In 2006, the INS again apprehended Ramos-Torres for illegally
transporting aliens. He pleaded guilty and was convicted of that offense for
which he was sentenced to one year of unsupervised probation. Based on that
conviction, however, the INS took him into custody for violation of his
immigration status, pending removal proceedings. At those proceedings, the IJ



      1
          Pub. L. No. 99-603, § 201, 100 Stat. 3359, codified at 8 U.S.C. § 1255a.

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                                  No. 09-60862

sustained the charge of removability.
B. Proceedings
      In a separate proceeding, Ramos-Torres sought LPR cancellation of
removal under § 240A(a) of the Immigration and Nationality Act2 (INA). In his
original application, he stated that he first entered the United States in 1993 as
an LPR, but he later amended the application to admit that he had first entered
the United States in 1982 and had done so illegally.
      At the cancellation-of-removal hearing, the IJ had Ramos-Torres confirm
that he was admitting that he had returned to Mexico under an administrative
voluntary departure order following his illegal entry conviction in 1982. Based
on this admission, the IJ determined that Ramos-Torres could never have
lawfully obtained temporary resident status—which requires continuous
residence in the United States since January 1, 1982—because his voluntary
departure later that year broke the requisite period of continued residence. And,
if Ramos-Torres could not have legally adjusted his status to that of a temporary
resident, he could not have lawfully adjusted his status to that of an LPR. Based
on this determination, the IJ concluded that Ramos-Torres was ineligible for
cancellation of removal as a matter of law under the INA and ordered Ramos-
Torres removed to Mexico.
      Ramos-Torres appealed the IJ’s judgment to the BIA, which conducted a
de novo review and affirmed the IJ’s order. Ramos-Torres timely petitioned for
review of the BIA’s order.
                                II. ANALYSIS
A. Standard of Review
      We have jurisdiction to review final orders of removal only to the extent




      2
          8 U.S.C. § 1229b.

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                                         No. 09-60862

that they raise “constitutional claims or questions of law.”3 In reviewing the
BIA’s decision, we review de novo questions of law and the BIA’s interpretation
and application of Supreme Court and Fifth Circuit precedent.4 We do accord
deference to the BIA’s interpretation of immigration statutes, however, “unless
it is plainly erroneous or inconsistent with the regulation.”5
B. Ramos-Torres’s Voluntary Departure Was “Under Threat of
Deportation”
       When we review a final order of removal, “a constitutional claim or
question of law may be reviewed only if ‘the alien has exhausted all
administrative remedies available to the alien as of right.’ Failure to exhaust is
a jurisdictional bar.”6 “Petitioners fail to exhaust their administrative remedies
as to an issue if they do not first raise the issue before the BIA, either on direct
appeal or in a motion to reopen.”7
       Ramos-Torres asserts on appeal that “[t]he conclusions of the IJ and the
BIA that [he] departed ‘under threat of deportation’ [are] not supported by the
record.” The government counters that we “lack[] jurisdiction to consider
Ramos’s argument that he did not accept voluntary departure under threat of
being placed in deportation proceedings because Ramos did not exhaust this
argument before the agency.” Alternatively, the government contends that
Ramos-Torres’s argument is without merit in light of record evidence that



       3
           Id. § 1252(a)(2)(D).
       4
           See Lopez De Jesus v. I.N.S., 312 F.3d 155, 158-89 (5th Cir. 2002).
       5
         Silwany-Rodriguez v. I.N.S., 975 F.2d 1157, 1160 (5th Cir. 1992) (“[Our de novo
review] is limited, and the court accords deference to the Board’s interpretation of immigration
statutes unless there are compelling indications that the Board’s interpretation is wrong.”
(internal quotation marks and citation omitted)).
       6
           Claudio v. Holder, 601 F.3d 316, 317 (5th Cir. 2010) (quoting 8 U.S.C. § 1252(d)(1)).
       7
           Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).

                                                4
                                      No. 09-60862

supports the finding that his voluntary departure was under threat of deportation.
       In Ramos-Torres’s brief to the BIA, he only argued that a “voluntary
departure” is distinct from a “departure under an order of deportation.” At no
time did he contest the IJ’s conclusion that he “was voluntarily returned to
Mexico in lieu of deportation.” The BIA, in turn, determined that “[t]he findings
of fact which are fully set forth in the Immigration Judge’s decision are not
clearly erroneous. The issue before us involves the respondent’s 1982 voluntary
return to Mexico under a threat of deportation . . . .”
       To the extent that the question whether Ramos-Torres’s voluntary
departure was “in lieu of deportation” requires a factual determination that was
made by the IJ and confirmed by the BIA, we have no jurisdiction to review it.8
To the extent that this question presents an issue of law, Ramos-Torres did
indeed fail to exhaust his administrative remedies by not first raising it before
the BIA. We therefore have no jurisdiction to review it and must accept that
Ramos-Torres voluntarily departed the United States in 1982 under threat of
deportation.
C. A “Voluntary Departure Under Threat of Deportation” Establishes
a Break in Continuous Residence
       As the BIA explained in its order, “An alien seeking cancellation of
removal has the burden of proof to establish that he is eligible for the relief
sought.” If, as a matter of law, Ramos-Torres was not eligible to receive LPR
status in 1993, then he could not, and therefore did not, lawfully acquire
it—absent which he is not eligible for cancellation of removal.9 The key issue
before us, therefore, is whether Ramos-Torres’s 1982 voluntary return to Mexico


       8
         Furthermore, Ramos-Torres acknowledged in his appeal brief to the BIA that “[t]he
IJ”s written decision, issued March 23, 2009, correctly and accurately summarizes the facts
. . . .”
       9
        The Attorney General may terminate resident status “if it appears to the Attorney
General that the alien was in fact not eligible for such status.” 8 U.S.C. § 1255a(b)(2)(A).

                                             5
                                        No. 09-60862

under a threat of deportation (which the BIA refers to as an “administrative
voluntary departure”) interrupted his continuous residence in the United States
such that he has never been eligible for LPR status.
      Ramos-Torres putatively obtained LPR status under the amnesty
provision of the IRCA, which requires that the alien applicant “establish that he
entered the United States before January 1, 1982, and that he has resided
continuously in the United States in an unlawful status since such date and
through the date the application is filed under this subsection.”10 The IRCA
further states:
      [A]n alien shall not be considered to have resided continuously in
      the United States, if, during any period for which continuous
      residence is required, the alien was outside the United States as a
      result of a departure under an order of deportation . . . .11
The Attorney General “may provide for a waiver, in the discretion of the
Attorney General, of the periods [of continuous residence] in the case of an
absence from the United States due merely to a brief temporary trip abroad
required by emergency or extenuating circumstances outside the control of the
alien.”12
      Ramos-Torres’s primary argument both to the BIA and in his petition here
is that, for purposes of the IRCA, his “voluntary departure under the threat of
deportation” is not the same thing as “a departure under an order of
deportation.” Notwithstanding the fact that both are “departures,” argues
Ramos-Torres, “Congress knew the difference between voluntary departure and
deportation,” so a voluntary departure should not break continuous residence
the way that deportation does under the statute.


      10
           Id. § 1255a(a)(2)(A) (emphasis added).
      11
           Id. § 1255a(g)(2)(B)(i) (emphasis added).
      12
           Id. § 1255a(g)(2)(C) (emphases added).

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                                           No. 09-60862

      Both the BIA and the government rely on our analysis in Mireles-Valdez
v. Ashcroft.13 There, we held that an administrative voluntary departure, like
that of Ramos-Torres, interrupts continuous presence for purposes of a related
INA provision.14 We pointed to the “obvious and compelling fact” that “voluntary
departure, with its attendant understanding that the alien will cease his illegal
presence, is not consistent with continuous presence.”15 We did not understand
a voluntary departure to be different by nature “whether offered at the end of
the immigration proceedings or earlier at the border . . . . When the Attorney
General grants voluntary departure, the alien cannot later claim that he did so
while continuing his continuous presence for use in a future adjudication for
discretionary relief.”16 We also considered a regulation that the Attorney General
had issued in the context of the Nicaraguan Adjustment and Central American
Relief Act, which stated outright that “‘a period of continuing physical presence
is terminated whenever . . . the alien has voluntarily departed under threat of
deportation.’”17
      Although not mentioned by either party, Mireles-Valdez is distinguishable
because that case addressed continuous presence, whereas the controlling statute
here requires continuous residence.18 The Supreme Court has said in the past,
in the context of a statute being amended to replace “continuous residence” with


      13
           349 F.3d 213 (5th Cir. 2003).
      14
           Id. at 214.
      15
           Id. at 218.
      16
           Id.
      17
           Id. (quoting 8 C.F.R. § 240.64(b)(3)).
      18
          The IJ seemingly confused the requirements of the statute as well. The statute
requires continuous residence since January 1, 1982 and continuous physical presence since
November 6, 1986. See 8 U.S.C. § 1255a(a)(2), (3). Seemingly, Ramos-Torres’s continued
physical presence is not at issue in this case.

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                                           No. 09-60862

“continuous       presence”:     “Had        Congress     been   concerned   only   with
‘non-intermittent’ presence or with the mere maintenance of a domicile or
general abode, it could have retained the ‘continuous residence’ requirement.
Instead, Congress expressly opted for the seven year ‘continuous physical
presence’ requirement.”19 The requirement of maintaining continuous residence,
therefore, although not as strict as the requirement of continuous physical
presence discussed in Mireles-Valdez, is nevertheless based on the same
principles.
      For example, it is no stretch to argue, along the lines of Mireles-Valdez,
that voluntary departure, with its attendant understanding that the alien will
thereby cease his illegal presence, is equally inconsistent with continuous
residence. As the Supreme Court has held, “The obvious purpose of deportation
is to terminate residence.”20 Consequently, a voluntary departure in lieu of
deportation has the same purpose of terminating residence, which is still
inconsistent with fulfilling a continuous residence requirement.
      Ramos-Torres directs us to the Ninth Circuit cases of Pedroza-Padilla v.
Gonzalez21 and Espinoza-Gutierrez v. Smith22 to support his proffered distinction
between voluntary departure under threat of deportation and a departure under
order of deportation. If anything, however, both cases cut against his argument.
In Pedroza-Padilla, the alien was “ordered deported from the United States in
1984, [and] was given until January 5, 1985 to depart voluntarily, but failed to
depart until March 27, 1985.”23 Agreeing with the Administrative Appeals Office,

      19
           I.N.S. v. Phinpathya, 464 U.S. 183, 191 (1984).
      20
           Mrvica v. Esperdy, 376 U.S. 560, 568 (1964).
      21
           486 F.3d 1362 (9th Cir. 2007).
      22
           94 F.3d 1270 (9th Cir. 1996).
      23
           486 F.3d at 1363.

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                                          No. 09-60862

the Ninth Circuit held that the alien’s March 1985 voluntary departure rendered
him “ineligible for legalization because he had not resided continuously in the
United States since at least January 1, 1982.”24
       In Espinoza-Gutierrez, the alien had departed, without receiving advance
permission from the INS, for a four-day trip to his hometown in Mexico to check
on some property for his parents while his application for LPR status was
pending.25 The Ninth Circuit examined whether this trip interrupted the LPR
requirement that he have been physically present in the United States since
November 6, 1986.26 Consequently, the analysis in Espinoza-Gutierrez is distinct
from ours today because that case involved both a different provision and a
different type of departure.27 As the Ninth Circuit clarified, “[H]e was not subject
to a deportation hearing, nor is he subject to an order of deportation. He was the
subject of an exclusion proceeding [upon reentering the United States after his
four-day trip].”28
       As a general matter, in fact, the Ninth Circuit has embraced reasoning
contrary to that urged by Ramos-Torres, concluding that a voluntary departure
does not differ from a deportation order vis-à-vis interruption of continued
presence:
       An administrative “voluntary departure” under the statute is
       something that occurs with the permission of the Attorney General
       in lieu of removal proceedings. . . . While the statute provides some


       24
            Id. at 1365.
       25
            94 F.3d at 1271-72.
       26
            Id. at 1274. See also 8 U.S.C. § 1255a(a)(3).
       27
         The Ninth Circuit accordingly remanded the case for the district court to determine
whether the trip was “brief, casual, and innocent” in accordance with the standard for
determining which absences interrupt continuous physical presence. See Espinoza-Gutierrez,
94 F.3d at 1279.
       28
            Id. at 1278.

                                                 9
                                         No. 09-60862

       incentives to an alien to apply for voluntary departure and thus
       avoid removal proceedings and removal, nothing there suggests that
       an alien who commits to departure in order to avoid such
       proceedings is nevertheless entitled to continue accruing “presence”
       so as to become eligible for other discretionary relief.29
The decisions of the Ninth Circuit, therefore, do not lend support to Ramos-
Torres’s argument.
       Ramos-Torres also asserts that “Congress intended the remedial
provisions of 8 U.S.C. § 1255a, targeted exclusively and specifically at illegal
aliens, to be generously construed in order to relieve applications of unintended
consequences,” and points to the waivers of absence provided for by the statute.
But again, the waivers of absence are only provided in the Attorney General’s
discretion for “brief temporary trip[s] abroad required by emergency or
extenuating circumstances.”30 In contrast, the record here confirms that
(1) Ramos-Torres signed an order of voluntary departure, agreeing to return to
Mexico, and (2) his criminal sentence suggested that he was not to reenter the
United States for three years. His trip was not brief or temporary; neither was
it required by an emergency or the type of extenuating circumstances excused
by the Attorney General.
       Such a departure is equally significant, under threat of deportation or
under an order of deportation,31 and either breaks an alien’s continuous


       29
         Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir. 2003) (per curiam). The statute
providing for voluntary departures prior to 1996 provided, in relevant part, that the “Attorney
General may, in his discretion, permit any alien under deportation proceedings . . . to depart
voluntarily from the United States at his own expense in lieu of deportation.” 8 U.S.C.
§ 1254(e)(1) (1994).
       30
            8 U.S.C. § 1255a(g)(2)(C).
       31
           According to the law at the time of Ramos-Torres’s voluntary departure, we
determined that such a departure under threat of deportation “significantly interrupt[ed]” an
alien’s presence in the United States and thus that such departure was “a significant departure
from the United States.” Vargas-Gonzalez v. I.N.S., 647 F.2d 457, 458 (5th Cir. 1981);
Segura-Viachi v. I.N.S., 538 F.2d 91, 92 (5th Cir. 1976).

                                              10
                                        No. 09-60862

residence to the same extent. The inescapable fact is that Ramos-Torres left the
United States for an unknown period of time after agreeing that he would not
illegally return to the United States for at least three years. He did not briefly
depart for reasons of emergency or extenuating circumstances; rather, he
departed because he was convicted of a crime and sentenced to three years of
probation, which required his departure from the United States. The LPR
provision at issue here falls into a subsection of the INA entitled “Absences
caused by deportation or advanced parole.”32 Ramos-Torres’s absence was surely
caused by the imminence of his deportation, even if deportation proceedings had
not yet commenced against him. Consequently, his voluntary departure in lieu
of deportation interrupted his alleged continuous residence as a matter of fact
and as a matter of law.
      In sum, there are no compelling indications that the BIA incorrectly
concluded, as a matter of law, that Ramos-Torres was ineligible for LPR status
based on his 1982 voluntary departure from the United States and that he is
now ineligible for LPR cancellation of removal.
                                        CONCLUSION
      For the foregoing reasons, Ramos-Torres’s petition for review of the BIA’s
order is DENIED.




      32
           8 U.S.C. § 1255a(g)(2)(B).

                                            11
