                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-3936
CELIA MORALES-MORALES,
                                                      Petitioner,
                               v.

JOHN ASHCROFT, Attorney General
of the United States,
                                                     Respondent.

                        ____________
                Petition for Review of an Order of
               the Board of Immigration Appeals.
                         No. A77-459-612
                        ____________
 ARGUED SEPTEMBER 16, 2003—DECIDED SEPTEMBER 15, 2004
                        ____________




 Before FLAUM, Chief Judge, and DIANE P. WOOD and
WILLIAMS, Circuit Judges.
  DIANE P. WOOD, Circuit Judge. Celia Morales-Morales
(Morales) is a Mexican citizen who has resided in the
United States since her original entry without inspection in
1986. After briefly returning to Mexico to attend to her
gravely ill mother, Morales repeatedly and unsuccessfully
attempted to reenter the United States in March 1999.
Ultimately, she was arrested and convicted for the latter
attempt. Upon Morales’s release from imprisonment, the
2                                                 No. 02-3936

Immigration and Naturalization Service (INS)1 initiated
removal proceedings, and Morales in turn applied for can-
cellation of removal. The Immigration Judge (IJ) ruled that
Morales’s brief absence from the country rendered her
ineligible under the statute for cancellation of removal, and
on that ground only, rejected her petition. The Board of
Immigration Appeals (BIA) affirmed without opinion under
its streamlining procedure. Because we conclude that the
statute did not preclude this relief for Morales, we grant her
petition for review and remand for further proceedings.


                               I
  Morales first entered the United States without inspec-
tion (i.e., illegally) in June 1986 at age 16. She is married to
a lawful permanent resident of the United States and is the
mother of four U.S. citizen children, ranging in age from
nine to 16 years old. As far as this record shows, Morales
remained in the United States from the time of her entry
until early March 1999, when she returned to Mexico to
visit her ailing mother. On March 22, 1999, after about two
weeks in Mexico, Morales reentered the United States
without inspection. The U.S. Border Patrol promptly
detained her informally, and she voluntarily returned to
Mexico. These events repeated themselves on three more oc-
casions over the course of six days. Morales testified that
each time the Border Patrol “just took me, threw me around,
and turned me back.” Importantly, she never appeared
before an immigration judge, and no removal proceedings
were initiated. On March 31, 1999, the U.S. Border Patrol
apprehended Morales as she entered the country without
inspection for the fifth time. This time the authorities took


1
 The INS no longer exists as an independent agency within the
Department of Justice and is now part of the Department of
Homeland Security.
No. 02-3936                                                     3

matters more seriously. Morales was charged with, and
pleaded guilty to, illegal entry in violation of 8 U.S.C.
§ 1325 and 8 U.S.C. § 1329, and was sentenced to 179 days’
imprisonment, which she served.
  Upon completion of her sentence, Morales was released
into the custody of the INS, which initiated removal pro-
ceedings. Shortly thereafter, Morales applied for cancella-
tion of removal under 8 U.S.C. § 1229b(b). On January 11,
2001, an IJ found that Morales’s “return to Mexico by the
Immigration Service was meaningfully interruptive of her
physical presence,” and therefore she could not satisfy the
ten years of continuous physical presence required for eligi-
bility for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(A).
On this basis, the IJ denied Morales’s application for can-
cellation of removal and ordered that she be deported to
Mexico. Morales appealed to the BIA, which affirmed with-
out opinion under its streamlining procedure on October 7,
2002. See 8 C.F.R. § 1003.1(a)(7). This petition for review
followed.


                               II
  Before we reach the merits of Morales’s appeal, we must
address several preliminary matters. The first concerns this
court’s jurisdiction over her petition for review. We have an
independent obligation to ensure that subject matter
jurisdiction is proper before proceeding to the merits, even
where, as here, neither of the parties has raised this as an
issue in the case. Smith v. Am. Gen. Life & Acc. Ins. Co.,
337 F.3d 888, 892 (7th Cir. 2003). The governing statute is
8 U.S.C. § 1252(a)(2)(B), which reads as follows:
    (B) Denials of discretionary relief
    Notwithstanding any other provision of law, no court
    shall have jurisdiction to review—
        (i) any judgment regarding the granting of relief
4                                                No. 02-3936

        under section 1182(h), 1182(I), 1229b, 1229c, or 1255
        of this title, or
        (ii) any other decision or action of the Attorney
        General the authority for which is specified under
        this subchapter to be in the discretion of the Attor-
        ney General, other than the granting of relief under
        section 1158(a) of this title.
Section 1229b, which is included in the list in part (i),
governs cancellation of removal. The question before us is
whether this statute was intended to preclude all judicial
review whatsoever, or only judicial review of the way in
which the Attorney General exercises his discretion. At first
blush, the language of the statute appears to be quite
broad: read literally, it would preclude judicial review even
of a decision by the Attorney General to deny cancellation
of removal to all Muslims, or a decision by the Attorney
General to eliminate this form of relief from the statute al-
together. In other areas of immigration law, however, courts
have resisted such an extreme position. Instead, relying on
the proposition that at a minimum, jurisdiction to deter-
mine jurisdiction exists, see Jideonwo v. INS, 224 F.3d 692,
696 (7th Cir. 2000), courts have exercised the authority to
decide whether the particular alien’s claim falls within the
scope of the jurisdiction-stripping statute. See, e.g., Yang v.
INS, 109 F.3d 1185, 1192 (7th Cir. 1997) (deciding whether
the alien had committed one of the enumerated crimes that
leads to automatic, and unreviewable, removal from the
United States).
  Although it is true that Morales ultimately wants can-
cellation of removal, that is not the relief she is seeking
before this court—for good reason, as we have no power to
grant that relief. Instead, she seeks to have the Attorney
General consider her petition for cancellation of removal
under the correct interpretation of the eligibility require-
ments set forth in § 1229b(b). That is not the same as
No. 02-3936                                                   5

requesting review of the grant or denial of cancellation of
removal, any more than the request by certain Caucasian
applicants to the University of Michigan for a race-neutral
admissions process necessarily included a demand for a spot
in the class. See Gratz v. Bollinger, 539 U.S. 244, 252 (2003)
(relief requested included damages, an injunction requiring
reformation of the admissions process, and only lastly an
order requiring an opportunity to transfer to the Univer-
sity). Morales’s petition only indirectly concerns the ulti-
mate grant or denial of cancellation of removal; its focus is
on the meaning of the statutory criteria that cabin the
Attorney General’s decisionmaking. In that respect, it is
much like Yang, where the only issue was whether the
petitioner had committed the kind of crime that led to
removal.
  Although our conclusion that § 1252(a)(2)(B) does not
foreclose review of this narrow set of questions is consistent
with the fact that the statute expressly refers to denials of
“discretionary” review in the caption, we recognize that the
caption alone is of limited help in understanding the actual
text of the law. Compare INS v. St. Cyr, 533 U.S. 289, 308-
09 (2001) (holding that a section captioned “elimination of
review by habeas corpus” did not eliminate all such review).
We come to this result instead because the statute does not
clearly indicate that the exclusion from judicial review is so
extreme as to purport to authorize the Attorney General to
disregard both the Constitution and the statutory criteria set
forth by Congress. As we suggested in Fornalik v. Perryman,
223 F.3d 523 (7th Cir. 2000), a case may “fall outside [§
1252(a)(2)(B)’s] scope because [the petitioner] is challenging
a pure error of law . . . , not the exercise of discretion.” Id.
at 532; cf. Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th
Cir. 2003) (“We retain jurisdiction [under § 1252(a)(2)(B)] to
review the purely legal and hence non-discretionary ques-
tion whether [the applicant’s] adult daughter qualifies as a
‘child’ for purposes of the ‘exceptional and extremely
unusual hardship’ requirement.” (Citations omitted)).
6                                                No. 02-3936

  We have taken the same approach to the very next sub-
section of the statute, 8 U.S.C. § 1252(a)(2)(C), which pro-
vides that “no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed a criminal offense covered in”
certain enumerated sections. In applying § 1252(a)(2)(C), we
have held that “all persons ordered removed retain the right
to judicial review of the antecedent, non-discretionary
questions, such as whether they are aliens and whether
they have committed disqualifying crimes.” Gill v. Ashcroft,
335 F.3d 574, 575 (7th Cir. 2003); see also Bosede v.
Ashcroft, 309 F.3d 441, 445 (7th Cir. 2002) (“We have held
before on a number of occasions that the review-preclusion
provisions in the 1996 amendments to the immigration laws
do not prevent us from determining whether the alien is
being removed for a permissible reason.”).
  Our conclusion is also consistent with the decisions of the
other circuits that have already confronted the question
before us, namely, whether the determination that an alien
has established continuous physical presence for purposes
of § 1229b(b)(1)(A) is subject to judicial review. In Kalaw v.
INS, 133 F.3d 1147 (9th Cir. 1997), the Ninth Circuit
considered whether § 1252(a)(2)(B) barred judicial review of
a BIA determination that an alien had not satisfied the
“continuous physical presence” requirement for suspension
of deportation, the equivalent of cancellation of removal
under prior law. Id. at 1151. The court concluded that
continuous physical presence “must be determined from the
facts, not through an exercise of discretion.” Id. It further
stated that “[t]here are legal standards guiding this inquiry,
and we have reversed the BIA’s determination when it
applied the wrong standard.” Id. (internal citations omit-
ted). It concluded that § 1252(a)(2)(B) “do[es] not remove
appellate jurisdiction over an alien’s challenge to the BIA’s
denial of an application for suspension of deportation solely
on th[e] ground” of continuous physical presence. Id.; see
No. 02-3936                                                    7

also Falcon Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir.
2003). Citing Kalaw, the Fifth Circuit recently held that
“whether an alien satisfies the continuous physical presence
requirement is a nondiscretionary determination because it
involves straightforward statutory interpretation and
application of law to fact.” Mireles-Valdez v. Ashcroft, 349
F.3d 213, 217 (5th Cir. 2003). That court too concluded that
it had “jurisdiction to review whether [the petitioner] was
ineligible for cancellation because he lacked the required
continuous presence.” Id.
  We find this analysis persuasive and join our sister cir-
cuits in holding that the meaning of the term “continuous
physical presence” is a non-discretionary question of stat-
utory interpretation. As such, it falls outside § 1252(a)(2)(B)’s
jurisdiction-stripping rule. We thus are free to proceed to
decide the antecedent, non-discretionary question whether
the IJ correctly interpreted the rules determining when a
break in physical presence has occurred.


                              III
   Before answering this question, we offer a brief comment
on the procedural posture of this case. As noted above, the
BIA gave this case only streamlined review. The BIA’s
streamlining procedure set out in 8 C.F.R. § 1003.1(a)(7)
provides that a single member of the BIA may affirm, without
opinion, the results of an IJ’s decision if the member deter-
mines (1) that the result reached in the decision under re-
view was correct; (2) that any errors in the decision under
review were harmless or non-material; and (3) that (A) the
issue on appeal is squarely controlled by existing Board or
federal court precedent and does not involve the application of
precedent to a novel fact situation; or (B) the factual and
legal questions raised on appeal are so insubstantial that
three-member review is not warranted. “If a case is stream-
lined, the IJ’s decision becomes that of the BIA for purposes
8                                                No. 02-3936

of judicial review.” Georgis v. Ashcroft, 328 F.3d 962, 966-67
(7th Cir. 2003). Thus, while “[t]his court reviews only the fi-
nal determinations of the BIA,” in practical effect this means
the IJ’s decision in a case like this one.
  Streamlining has its institutional costs, however, and it
seems that they were incurred in this case. Unfortunately,
the procedural short cut the Board took may have caused it
to overlook the IJ’s reliance on a defunct legal principle and
one of its own intervening decisions. We do not know that,
of course, because the thinking of the responsible BIA
member is entirely opaque. We turn perforce to the IJ’s
opinion, which offers the rationale for the decision that the
agency must now defend.


                             IV
                              A
  The statute governing cancellation of removal is 8 U.S.C.
§ 1229b. It is important to recall that this statute permits
the Attorney General to cancel removal not only for aliens
who were lawfully admitted for permanent residence, see §
1229b(a)(1), but also for aliens who are “inadmissible or
deportable from the United States,” see § 1229b(b)(1), if the
alien:
    (A) has been physically present in the United States for
    a continuous period of not less than 10 years immedi-
    ately 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 enumerated of-
    fenses]; 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
No. 02-3936                                                 9

    an alien lawfully admitted for permanent residence.
The statute goes on to specify “special rules relating to con-
tinuous residence of physical presence” in § 1229b(d); it is
the rules specifying the proper treatment of “certain breaks
in presence,” 8 U.S.C. § 1229b(d)(2), that lie at the heart of
Morales’s case:
    (2) Treatment of certain breaks in presence
    An alien shall be considered to have failed to maintain
    continuous physical presence in the United States un-
    der subsections (b)(1) and (b)(2) of this section if the
    alien has departed from the United States for any period
    in excess of 90 days or for any periods in the aggregate
    exceeding 180 days.
  Morales’s petition for cancellation of removal required the
IJ to determine whether, for purposes of 8 U.S.C.
§ 1229b(d)(2), she had “failed to maintain continuous phy-
sical presence in the United States” because she had departed
from the United States for any single period in excess of 90
days or for several periods that in the aggregate exceeded
180 days. If, as the IJ thought, Morales’s illegal reentries
had the effect of starting the clock anew, then she is not
eligible for cancellation of removal. If, on the other hand,
those reentries did not have this effect as a matter of law,
then the IJ’s decision was based on an erroneous foundation.
The number of days Morales was gone was undisputed: she
was out of the country for less than 30 days. The IJ none-
theless decided that she was ineligible under the statute
because, in his view, departures for periods shorter than
those specified in § 1229b(d)(2) could also qualify as breaks
in physical presence for purposes of § 1229b(b)(1)(A).
  In reaching this result, the IJ relied on the superseded
“Fleuti doctrine,” under which an alien’s “innocent, casual,
and brief” departure from this country was not a break in
physical presence, see Tapia v. Ashcroft, 351 F.3d 795, 799
(7th Cir. 2003), whereas when an alien left the United
10                                                No. 02-3936

States “for a reason that is inconsistent with the policies
reflected in this country’s immigration laws, the ‘interrup-
tion of residence thereby occurring would properly be re-
garded as meaningful.’ ” Selimi v. INS, 312 F.3d 854, 859
(7th Cir. 2002) (quoting Rosenberg v. Fleuti, 374 U.S. 449,
462 (1963)). The IJ reasoned that “[i]n light of the ambigu-
ity in the heading” of 8 U.S.C. § 1229b(d)(2)—whose head-
ing is worded “Treatment of certain breaks in presence”
(emphasis added), rather than “Treatment of all breaks in
presence”—“the Fleuti doctrine and the concept of meaning-
fully interruptive departures still exist under the current
law.” As Morales’s “return to the United States could not be
considered casual, and certainly not meaningless,” the IJ
concluded that she could not establish continuous physical
presence and thus was ineligible for cancellation of removal.
  The IJ’s analysis fails to take into account the fact that
the Fleuti doctrine was superceded by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (IIRIRA). See
Tapia, 351 F.3d at 799; In re Collado, 21 I. & N. Dec. 1061,
1065 (BIA 1998) (“Thus, we find that the Fleuti doctrine . . .
does not survive the enactment of the IIRIRA as a judicial
doctrine.”). Under the IIRIRA, “[t]he physical presence re-
quirement[ ] . . . does not include the ‘innocent, casual, and
brief’ standard, and instead opts for a quantitative stand-
ard—any absence outside the country for more than 90 days
at a time, or 180 days in total, breaks the physical presence
requirement.” Tapia, 351 F.3d at 799 (emphasis added);
Collado, 21 I. & N. Dec. at 1064 n.4 (noting that the
“previous use of the ‘brief, casual, and innocent’ concept . . .
was not carried forward by Congress in the IIRIRA’s new
cancellation of removal provisions.”). Before this court, the
government has acknowledged that the IJ erred in relying
on the Fleuti doctrine. It is also clear from the facts that
Morales was nowhere near either the 90-day or the 180-day
period established by the statute. We see no warrant for the
No. 02-3936                                                 11

IJ to read this statute as establishing only a maximum
number of days, rather than a bright-line administrative
rule.
  The government has attempted to salvage the IJ’s result—
though not his reading of the statute—by arguing that this
was a harmless error in light of the BIA’s subsequent deci-
sion in In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002).
Romalez, which was decided after the IJ’s decision in
Morales’s case but before the BIA’s summary affirmance,
holds that “a departure that is compelled under threat of
the institution of deportation or removal proceedings is a
break in physical presence for purposes of” 8 U.S.C.
§ 1229b(b). Id. at 424.
   Romalez helps the government, however, only if it applies
to Morales’s situation. As we explain in more detail below,
it does not. Furthermore, this is a theory that is entirely
absent from the IJ’s opinion, and thus we have no reason to
think that the IJ or the BIA would have extended Romalez to
Morales’s distinctly different circumstances. While govern-
ment counsel may think that there is a good reason to do so,
a lawyer’s arguments cannot substitute for a reasoned
opinion by the IJ or BIA. See Mengistu v. Ashcroft, 355 F.3d
1044, 1046 (7th Cir. 2004) (reiterating that the Chenery
doctrine “forbids the lawyers for an administrative agency to
defend the agency’s decision on a ground different from that
stated or at least discernible in the decision itself”); Florida
Power & Light Co. v. F.E.R.C., 85 F.3d 684, 689 (D.C. Cir.
1996) (“[The agency’s] counsel raises various arguments not
mentioned within or even implied by the orders on review.
But the agency runs this regulatory program, not its
lawyers; parties are entitled to the agency’s analysis of its
proposal, not post hoc salvage operations of counsel.”).
12                                              No. 02-3936

                             B
  We turn then to Romalez, in which the BIA held that vol-
untary departure under threat of deportation or removal
proceedings constitutes a break in continuous physical pres-
ence. The record contains no evidence that any of Morales’s
voluntary departures occurred under that kind of threat.
Instead, she was simply returned to the border.
   In Romalez, the BIA considered an application for can-
cellation of removal submitted by a Mexican citizen who
unlawfully entered the United States in 1984. Romalez, 23
I. & N. Dec. at 423. Romalez departed in 1993 and again in
1994 “under threat of deportation,” but each time remained in
Mexico for only one or two days before unlawfully returning
to the United States. Id. After Romalez was charged with
removability, he applied for cancellation of removal. Id. at
424. The BIA found Romalez ineligible for cancellation of
removal because “a departure that is compelled under
threat of the institution of deportation or removal proceed-
ings is a break in physical presence for purposes of” §
1229b(b)(1)(A). Id. In reaching this result, the BIA con-
cluded that “[t]he statutory language [of § 1229b(d)(2)] does
not literally forgive any single departure of 90 days or less
or aggregate departures of 180 days or less.” Id. at 425. In
particular, § 1229b(d)(2) does not “forgive a departure fol-
lowing an arrest by the Border Patrol with the threat that
formal proceedings will be commenced absent the alien’s
voluntary return to his or her native country.” Id. at 426.
  The BIA’s analysis makes clear that its holding in Romalez
applies only to aliens who accept voluntary departure under
threat of deportation or removal proceedings. As the govern-
ment recognizes in its brief before this court, “voluntary
departure” is “a term of art, denoting a form of relief from
removal provided for by statute.” See 8 U.S.C. § 1229c.
Under § 1229c(a)(1), “[t]he Attorney General may permit an
alien voluntarily to depart the United States at the alien’s
No. 02-3936                                                 13

own expense under this subsection, in lieu of being subject
to [removal] proceedings under section 1229a of this title or
prior to the completion of such proceedings . . . .” See also 8
C.F.R. § 240.25 (detailing the scope of the government’s
authority to grant voluntary departure).
  In Romalez, the BIA explained that voluntary departure
operates “like a plea bargain,” in that “[t]he alien leaves
with the knowledge that he does so in lieu of being placed
in proceedings. . . . There is no legitimate expectation by
either of the parties that an alien could illegally reenter and
resume a period of continuous physical presence.” 23 I. & N.
Dec. at 429. Because “an order of removal is intended to end
an alien’s presence in the United States,” the BIA
“believe[d] it would be contrary to the very reason for
departure and removal orders, as well as enforced voluntary
departures, to read section [1229b(d)(2)] as preserving the
period of physical presence acquired prior to an enforced
departure for an alien who returns within 90 days of the
enforcement action.” Id. at 426-27 (emphasis added).
  The BIA further observed that this result is consistent
with the Attorney General’s regulations implementing the
Nicaraguan Adjustment and Central American Relief Act,
Pub. L. No. 105-100, § 203(b), 111 Stat. 2193, 2198 (1997),
amended by Pub. L. No. 105-139, 11 Stat. 2644 (1997)
(NACARA). These regulations provide that “a period of
continuous physical presence is terminated whenever an
alien is removed from the United States under an order
issued pursuant to any provision of the Act or the alien has
voluntarily departed under the threat of deportation . . . .”
8 C.F.R. § 240.64(b)(3). Thus, the BIA explained, “the Attorney
General has interpreted the continuous physical presence
requirement for NACARA special rule cancellation of re-
moval as being broken or ‘terminated’ by departure under
an order of removal, an order of deportation, or the ‘threat
of deportation.’ ” Romalez, 23 I. & N. Dec. at 428. We therefore
conclude that Romalez establishes only that a voluntary
14                                                 No. 02-3936

departure that occurs under the threat of removal breaks
the alien’s continuous physical presence in the United
States for purposes of establishing eligibility for cancella-
tion of removal.
  The three other circuits that have considered Romalez
have likewise done so only in the context of aliens who vol-
untarily departed under threat of deportation or removal
proceedings. In Vasquez-Lopez v. Ashcroft, 343 F.3d 961
(9th Cir. 2003), the Ninth Circuit held that Romalez gov-
erned its review of the BIA’s “determination that [the
petitioner’s] departure from the United States pursuant to
a grant of administrative voluntary departure . . . occa-
sioned a break in his ‘continuous physical presence in the
United States.’ ” Id. at 969. The court emphasized that an
administrative “voluntary departure” occurs “pursuant to
an agreement between Petitioner and the Attorney General
under which Petitioner agreed to depart and not to return
other than in accordance with the entry process applicable
to all aliens.” Id. at 974. The court thus found persuasive
the BIA’s conclusion in Romalez that as “administrative vol-
untary departures [are] in lieu of removal proceedings . . . , it
follow[s] that administrative voluntary departures should
likewise be seen as severing the alien’s physical tie to the
United States.” Id. at 972.
  The Fifth and Eighth Circuits have likewise adopted this
approach. In Mireles-Valdez, the Fifth Circuit concluded
that the BIA’s holding in Romalez—“that voluntary depar-
ture under threat of deportation interrupted continuous
presence for cancellation purposes”—was reasonable and,
on this basis, denied the petitioner relief. 349 F.3d at 218.
The court stressed that “voluntary departure, whether of-
fered at the end of immigration proceedings or earlier at the
border (as in this instance), is granted an alien as a form of
clemency in return for his agreeing to relinquish his illegal
presence.” Id. Thus, “[w]hen the Attorney General grants
voluntary departure, the alien cannot later claim that he
No. 02-3936                                                15

did so while continuing his continuous presence for use in
a future adjudication for discretionary relief.” Id. Most
recently, the Eighth Circuit relied on Romalez’s holding
“that continuous physical presence comes to an end when
an alien voluntarily departs under threat of deportation” in
denying relief to an alien in such a position. Palomino v.
Ashcroft, 354 F.3d 942, 944-45 (8th Cir. 2004).
  We have no quarrel with Romalez’s rule that voluntary
departure under threat of deportation or removal proceed-
ings—also referred to by the BIA as “departures made
under threat of the institution of deportation proceedings”—
constitutes a break in continuous physical presence for
purposes of § 1229b(b)(1)(A). See Romalez, 23 I. & N. Dec.
at 425. The question for us, however, is whether this rule
should be extended to voluntary departures that occur with-
out any hint of such a threat. There is absolutely no evi-
dence in the record before us that Morales voluntarily
departed for Mexico under threat of removal or deportation
proceedings. Morales testified that on each of the four
occasions that the U.S. Border Patrol detained her prior to
her final arrest, she never appeared before an IJ and was
never placed in proceedings. Rather, she testified that each
time the Border Patrol “just took me, threw me around, and
turned me back.” When the IJ inquired whether Morales
asked to be returned to Mexico or asked to see a judge,
Morales replied, “I did not ask for anything.” There is no
other evidence in the record regarding the nature of Morales’s
departures following these detentions.
  There is a significant difference between Morales’s ac-
count of the Border Patrol simply turning her back at the
border and voluntary departure under threat of removal
proceedings. Under the BIA’s own regulations, “voluntary
departure shall be communicated in writing” and “may not
be granted unless the alien requests voluntary departure
and agrees to its terms and conditions.” 8 C.F.R. § 240.25(c).
Importantly, “[a] voluntary departure order permitting an
16                                               No. 02-3936

alien to depart voluntarily shall inform the alien of the pen-
alties under [8 U.S.C. § 1229c(d)],” which include a civil
penalty of not less than $1,000.00 and ineligibility for a
period of 10 years for voluntary departure, cancellation of
removal, and permanent residence status if the alien fails
to depart voluntarily within the specified time period. 8
C.F.R. § 240.25(b). Given these elaborate conditions, it is
understandable why the BIA in Romalez described voluntary
departure as “like a plea bargain,” in which “[t]here is no
legitimate expectation by either of the parties that an alien
could illegally enter and resume a period of continuous
physical presence.” 23 I. & N. Dec. at 429. The Ninth
Circuit likewise characterized voluntary departure as occur-
ring “pursuant to an agreement between Petitioner and the
Attorney General.” Vasquez, 343 F.3d at 974; see also
Palomino, 354 F.3d at 945; Mireles, 349 F.3d at 218.
  None of these conditions was satisfied in Morales’s case.
She did not enter into any functional “plea bargain” or
“agreement” that would have signified her “knowledge that
[she departed] in lieu of being placed in proceedings,” or
alerted her to the consequences of her illegal return to the
United States after her departure to Mexico. Romalez, 23 I.
& N. Dec. at 429. Nor can we say with confidence that there
was “no legitimate expectation by either of the parties that
[Morales] could illegally reenter and resume a period of
continuous physical presence.” Id. We simply cannot equate
being turned back at the border with a formal voluntary de-
parture or departure under an order of removal or de-
portation. While the latter necessarily breaks continuous
physical presence, the former does not.
  Given the stakes associated with voluntary departure,
including both the penalties provided for in § 1229c(d) and
the break in continuous physical presence established by
Romalez, we conclude that this record does not demonstrate
that Morales voluntarily departed under threat of proceed-
ings. When an alien is simply returned to the border
No. 02-3936                                               17

without voluntarily departing under threat of deportation
or removal proceedings, there is no break in continuous
physical presence for purposes of § 1229b(b)(1)(A).
  Before concluding, we consider one more possibility, al-
though this was not fully developed by the government and
thus would not be a proper ground for denying the petition
in any event. Perhaps one might say that Morales was not
“in” the United States at all at the time of these proceed-
ings, because she was at last stopped at the border and
prosecuted for her final effort at entry. See, e.g., Zadvydas
v. United States, 533 U.S. 678, 693 (2001). But that argu-
ment proves too much for the statute we are considering.
No one who needs to invoke § 1229b(b)(1) and (d)(2) has
“entered” the United States lawfully, and everyone seeking
cancellation of removal is in the midst of removal proceed-
ings. The statutes would be a nullity if the lack of lawful
entry made it impossible to establish any period of continu-
ous residence. Moreover, § 1229b(d)(2) contemplates both
departures and further unlawful entries, subject to the 90-
day and 180-day rules. The fact that Morales was prose-
cuted for trying to re-enter simply underscores the fact that
she was not lawfully admitted. At the very least, in the
absence of a fully developed position by the BIA on this
point, we see no reason to carve out Morales’s situation
from the others addressed by the statute. Should the BIA
(as opposed to its lawyers) address this in the future, we
will of course consider its interpretation under whatever
level of deference is appropriate.
  We therefore remand to the BIA to determine Morales’s
eligibility for cancellation of removal. On the record as it
stands, it appears that Morales has satisfied the continuous
physical presence requirement. If, however, additional
evidence regarding this issue is available, both sides are
entitled to present such evidence on remand. Finally, as an
aside, we note that the IJ in this case stated that “the
respondent in this case will most likely be able to meet the
18                                            No. 02-3936

exceptional and extremely unusual hardship factors” for
cancellation of removal, but he refrained from deciding the
issue in light of his finding that Morales had not estab-
lished continuous physical presence.


                            V
  For the reasons stated above, we GRANT Morales’s petition
for review and REMAND her case to the BIA for proceedings
consistent with this opinion.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—9-15-04
