     Case: 09-60061     Document: 00511012676          Page: 1    Date Filed: 01/26/2010




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

                                                  FILED
                                                                          January 26, 2010

                                     No. 09-60061                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DARIO CASTILLO-GONZÁLEZ,

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                   Respondent




                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A75 948 327


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Dario Castillo-González (“Castillo”) petitions for review from the Board of
Immigration Appeals’ (“BIA”) final decision denying his motion to reconsider its
earlier denial of his motion to remand for consideration of his application for
cancellation of removal. Castillo argues that the BIA erroneously concluded that
the Immigration Judge (“IJ”) found him statutorily ineligible for cancellation of
removal because he had not demonstrated a ten-year uninterrupted presence in


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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the United States. Because the BIA did not abuse its considerable discretion
when it denied Castillo’s motion to reconsider, we deny Castillo’s petition for
review.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       In January 2007, Castillo, a Mexican native and citizen, received a Notice
to Appear (“NTA”) charging him with removability for illegally entering the
country and placing him into removal proceedings.1 Castillo proceeded to a
hearing before an IJ where he admitted most of the factual allegations in the
NTA. Castillo asserted that he entered the United States in 1993, although he
submitted no evidence to support this contention. The IJ sustained the charge
of entering without inspection, and Castillo requested discretionary cancellation
of removal for nonlawful permanent residents under 8 U.S.C. § 1229b(b)(1).
       In response to Castillo’s request, the Government submitted a Record of
Deportable Alien (“Form I-213”) stating that Castillo last entered the United
States illegally in January 2005 and had previously entered the United States
in April 1998, after which he was voluntarily returned to Mexico in September
1998. 2 According to an earlier Form I-213, dated September 18, 1998, police
arrested Castillo in Waco, Texas for “Murder Intention Death, Failure to Stop
& Render Aid” after Castillo struck his ex-girlfriend with a car while driving
drunk.3 This earlier Form I-213 indicated that Castillo stated that he illegally
entered the United States in 1995.

       1
        The NTA also charged Castillo with removability for his 1998 conviction for deadly
conduct, a crime of moral turpitude. The Government withdrew this charge.
       2
        The Government also submitted additional documents demonstrating Castillo’s 1998
departure from the country, including a Notice of Rights, dated September 18, 1998; a Record
of Inadmissible Alien, dated September 18, 1998; an Immigration Detainer—Notice of Action;
a biographical data entry; a fingerprint card; and a printout of Castillo’s biographical
information entered into the Deportable Alien Control System (“DACS”) database.
       3
       According to the Record, Castillo’s ex-girlfriend survived the accident. It is unclear
why Castillo was arrested for a homicide offense.

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      The Government also produced a Notice of Rights (“Form I-826”) which the
Department of Homeland Security (“DHS”) had served on Castillo after his 1998
arrest.   This Form I-826, which bore Castillo’s signature and was dated
September 18, 1998, stated that Castillo had entered the United States illegally,
and advised him of his right to either request a hearing before an IJ to
determine whether he may remain in the country, or to return to Mexico as soon
as possible without a hearing. The Form I-826 also advised Castillo of his right
to contact an attorney, informing him that, should he request counsel, the officer
serving him the form would provide a list of legal organizations that would
provide representation at no cost or for a minimal fee. On the Form I-826,
Castillo initialed the paragraph that read:
      I admit that I am in the United States illegally, and I do not feel
      that I will be in danger if I return to my country. I waive my right
      to a hearing before the Immigration Court. I wish to return to my
      country as soon as arrangements can be made for my departure. I
      understand that I may be detained until my departure.
According to a DACS printout that the Government produced and which
documented Castillo’s biographical information, Castillo left the United States
for Mexico the same day he signed the Form I-826.
      In support of his request for cancellation of removal, Castillo explained to
the IJ that his “wife,” Maria Reyes Garcia,4 was a naturalized United States
citizen. At this point, the IJ noted that the Form I-826 seemed to indicate that
Castillo’s departure in 1998 cut off the ten-year uninterrupted period necessary
for the IJ to consider cancelling Castillo’s removal. The IJ continued the hearing
in order to secure a Spanish translator so that the IJ could question Castillo
about the Form I-826 and ascertain whether it interrupted Castillo’s period of
physical presence in the United States.


      4
        During the hearing, Reyes Garcia was referred to as “Ramirez,” the surname of her
then husband.

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      When the hearing resumed, Castillo withdrew his request for cancellation
of removal after he informed the IJ that Reyes Garcia had never officially
divorced her first husband, which left Castillo without a statutorily-required
qualifying relative. Castillo requested a continuance so that Reyes Garcia could
finalize her divorce and formalize her and Castillo’s common law marriage. The
IJ denied the request for a continuance, citing several issues demonstrating that
Castillo was not prima facie eligible for cancellation.
      Castillo then requested that the IJ permit his post-merits voluntary
departure under 8 U.S.C. § 1229c(b). The IJ granted a continuance to allow
Reyes Garcia to testify in support of Castillo’s request.        Once the hearing
resumed, Castillo, testifying through a Spanish interpreter, admitted to
numerous arrests and convictions, and conceded that in 1998, he “was thrown
back” to Mexico. He also acknowledged that the Form I-826 waiving his right
to a hearing contained his signature, although he testified that he did not
remember signing it. When asked whether he understood or had the Form I-826
explained to him, Castillo testified that DHS agents explained “some things,” but
that he did not understand them because the agents spoke in English. He did,
however, testify that at the time he signed the Form I-826, he wished to leave
the United States and return to Mexico.
      After Castillo finished testifying, he renewed his request for a continuance
pending Reyes Garcia’s divorce proceedings, which he claimed would “arguably”
make him statutorily eligible for cancellation of removal. The IJ responded that
“I don’t see it [sic] at this point that he would be eligible to have cancellation of
removal,” and opined that she had sufficient evidence of a break in the ten year
continuous period based on Castillo’s signed renunciation of rights. Although
Castillo argued that questions remained as to whether an interruption occurred
because he did not seem to understand his rights upon his 1998 departure, the
IJ responded that the Government had produced contrary evidence concerning

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that matter, and declined to further continue the proceedings. Although the IJ
had initially continued the hearings to allow Reyes Garcia to testify, the IJ
determined that she did not need any information not already in Reyes Garcia’s
previously-submitted affidavit.
      The IJ rendered an oral decision denying Castillo’s request for another
continuance, pretermitting his request for cancellation of removal, denying
voluntary departure, and ordering him removed to Mexico on the charge in the
NTA. In reference to Castillo’s cancellation request, the IJ found that Castillo
was not presently eligible because he had no qualifying relative as required by
8 U.S.C. § 1229b(b)(1)(D). The IJ also denied Castillo’s request for a continuance
because Castillo had an issue as to whether he could satisfy the statutory ten-
year continuous presence requirement, and summarized the evidence tending
to show Castillo’s 1998 departure from the United States.           Based on that
information, the IJ determined that at the time, there did not exist enough
evidence in the record to conclude that Castillo had either the requisite
qualifying relative or ten years continuous presence to statutorily authorize him
for cancellation of removal. Although Castillo met the statutory requirements
for voluntary departure, the IJ exercised her discretion to deny Castillo’s
request.
      Castillo filed an appeal with the BIA, contending that the IJ deprived him
of due process by denying voluntary departure without allowing Reyes Garcia
the chance to testify. After briefing, but prior to the BIA’s decision, Reyes Garcia
finalized her divorce and formalized her common-law marriage to Castillo,
providing him with a qualifying relative. Castillo filed a motion to remand to the
IJ so that she could rule on his renewed request for cancellation of removal,
arguing that the IJ never made any conclusive findings as to his eligibility other
than his lack of a qualifying relative.



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      The BIA dismissed the appeal, concluding that the IJ did not err when it
denied his request for voluntary departure. The BIA also denied Castillo’s
motion for remand, finding that despite Castillo’s recent familial developments,
the IJ had also found Castillo statutorily ineligible for cancellation of removal
because he could not prove the requisite period of continuous presence, and that
the IJ’s finding as to this matter was dispositive.
      Castillo filed a motion to reconsider with the BIA, arguing that the BIA
erred when it concluded that the IJ found him statutorily ineligible based on his
failure to demonstrate the statutorily-required ten years of uninterrupted
physical presence. Castillo acknowledged that the IJ expressed doubt in his
ability to do so when considering whether to grant his request for a continuance.
Castillo argued, however, that the IJ did not find that he lacked ten years
continuous presence as a basis for pretermitting his cancellation request, and
that the IJ never conducted a full evidentiary examination of the issue.
      The BIA denied the motion for reconsideration, rejecting Castillo’s
argument that he did not have the chance to present evidence as to his physical
presence. In support, the BIA cited Castillo’s testimony where he admitted his
desire to return to Mexico in 1998 when provided the opportunity. The BIA
found no merit in Castillo’s argument that it had erred when it stated that the
IJ had found that Castillo could not meet the physical presence requirement.
This petition followed.
             II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s denial
of a motion to reconsider “under a highly deferential abuse-of-discretion
standard.”    Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (citation
omitted). We must affirm the BIA’s decision “[s]o long as [the Board’s decision]
is not capricious, racially invidious, utterly without foundation in the evidence,
or otherwise so irrational that it is arbitrary rather than the result of any

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perceptible rational approach.” Id. (citation omitted) (alteration in original). We
review the BIA’s “legal conclusions de novo unless a conclusion embodies the
[BIA’s] interpretation of an ambiguous provision of a statute that it administers;
a conclusion of the latter type is entitled to the deference prescribed by Chevron
U.S.A. Inc. v. Natural Resources Defense Council, [467 U.S. 837 (1984)].” Id.
(internal citation omitted).
                                III. ANALYSIS
      A motion to reconsider must “specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.”           8 U.S.C.
§ 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1). To qualify for discretionary
cancellation of removal as a nonpermenant resident, an alien must demonstrate
ten years of continuous physical presence immediately preceding the date of his
or her application, good moral character during that period, no criminal
convictions for offenses covered under certain provisions of the Immigration and
Nationality Act, and “exceptional and extremely unusual hardship” to a United
States citizen or lawful permanent resident spouse, parent, or child. 8 U.S.C.
§ 1229b(b).    As a matter of discretion, the Attorney General may deny
cancellation even if an alien establishes statutory eligibility. Id. § 1229b(b)(1).
      “[A] period of continuous physical presence is terminated whenever . . . the
alien has voluntarily departed under the threat of deportation.”         8 C.F.R.
§ 1240.64(b)(3). The BIA denied Castillo’s motion to reconsider its denial of his
motion for remand, stating that the IJ found that Castillo had been unable to
meet the physical presence requirement for cancellation of removal, and noted
that the finding was dispositive.     Castillo argues that the BIA’s refusal to
reconsider its denial of his motion for remand violates his right to due process,
mischaracterizes the record, and prevented him from presenting evidence on his
own behalf. Castillo’s arguments are without merit.



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      Because the Attorney General has discretion to grant or deny a request for
cancellation of removal, Castillo cannot claim either a liberty or property
interest giving rise to a due process violation. See Mireles-Valdez v. Ashcroft,
349 F.3d 213, 219 (5th Cir. 2003). Although “[t]he Fifth Amendment entitles
aliens to due process of law in deportation proceedings,” Reno v. Flores, 507 U.S.
292, 306 (1993), we have held that “[e]ligibility for discretionary relief from a
removal order is not ‘a liberty or property interest warranting due process
protection.’” Mireles-Valdez, 349 F.3d at 219 (quoting United States v. Calderon-
Pena, 339 F.3d 320, 324 (5th Cir. 2003), vacated on other grounds, 383 F.3d 254
(en banc)). Therefore, Castillo’s due process claim fails.
      Castillo’s claim that the BIA erroneously concluded that the IJ found that
there existed an interruption in his continuous presence also fails. The IJ’s oral
decision stated that “there is insufficient evidence at this time in the record to
support that [Castillo] would be statutorily eligible for cancellation of
removal . . . [f]or lack of continuous physical presence as well as lack of a
qualifying relative as required by statute.” Based on this language, we cannot
say that the BIA abused its considerable discretion in denying Castillo’s motion
to reconsider his previously denied request for remand.
      Finally, we note that the BIA’s disposition did not violate Castillo’s right
to present evidence on his own behalf. In the context of his testimony regarding
his request for voluntary departure, the IJ questioned Castillo extensively
regarding his 1998 return to Mexico. Castillo admitted that he was sent back
to Mexico in 1998, that he wished to leave the United States at that time, and
that he had signed a Form I-826 waiving his right to a hearing and agreeing to
leave the country. Based on his testimony, the IJ stated that “I think I already
have enough evidence that there was a break in the presence in the United
States because I’ve got a signed renunciation of rights.”



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      In response to Castillo’s claim that he did not understand his renunciation,
the IJ stated that “there’s evidence that contradicts his testimony as far as that
goes.” Although the IJ made this comment in the context of a denial of a
continuance, Castillo had notice of the physical presence issue, and prior to the
denial, Castillo’s counsel questioned him as to the nature of his 1998 departure.
Castillo has not indicated what, if anything, he would offer in addition to his
previous testimony to dispute the contention that there was a break in his
continuous presence in the United States. On the contrary, Castillo would have
to change the answers to his sworn testimony in order to demonstrate statutory
eligibility for cancellation of removal. We cannot say that the BIA’s denial of
Castillo’s motion to reconsider violated Castillo’s right to present evidence on his
own behalf.
                              IV. CONCLUSION
      Castillo has not demonstrated that the BIA abused its considerable
discretion when it denied his motion to reconsider its previous denial of his
motion to remand. We therefore deny his petition for review.
      DENIED.




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