                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSE DE JESUS TAPIA,                        
                             Petitioner,            No. 03-74615
                    v.
                                                    Agency No.
                                                    A79-255-521
ALBERTO R. GONZALES,* Attorney
General,                                              OPINION
                     Respondent.
                                            
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                     Argued and Submitted
                 May 4, 2005—Portland, Oregon

                     Filed December 6, 2005

     Before: Alfred T. Goodwin and Richard R. Clifton,
 Circuit Judges, and John S. Rhoades, Sr.,** District Judge.

                     Opinion by Judge Clifton




  *Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
  **The Honorable John S. Rhoades, Sr., Senior United States District
Judge for the Southern District of California, sitting by designation.

                                 15727
                            TAPIA v. GONZALES                         15731
                               COUNSEL

Phillip Smith (argued) and Raquel E. Hecht, Hecht & Smith,
LLP, Eugene, Oregon, for the petitioner.

William C. Erb (argued) and Theresa M. Healy, United States
Department of Justice, Civil Division, Office of Immigration
Litigation, Washington, D.C., for the respondent.


                                OPINION

CLIFTON, Circuit Judge:

   Jose de Jesus Tapia petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) affirming without
opinion the decision by an immigration judge (“IJ”) denying
his petition for cancellation of removal. To be eligible for
cancellation of removal, a form of relief which permits an
alien otherwise subject to being expelled from the United
States to remain in this country, the alien must prove, among
other things, that he or she has been physically present in the
United States for a continuous period of at least ten years.1 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). An alien
   1
     Cancellation of removal is authorized under 8 U.S.C. § 1229b, which
provides the Attorney General with the authority to exercise discretion to
cancel an alien’s order of removal and adjust the alien’s status to that of
an alien lawfully admitted for permanent residence, provided the alien
establishes certain predicate conditions. The first of those conditions, set
forth at § 1229b(b)(1)(A), is the one at issue here. Specifically, the statute
provides that in order for an alien to be eligible for cancellation of
removal, he must have “been physically present in the United States for
a continuous period of not less than 10 years immediately preceding the
date of such application.”
15732                     TAPIA v. GONZALES
who has briefly departed the United States for such a reason
can still satisfy the ten-year presence prerequisite to qualify
for cancellation of removal by including the time spent here
before the brief absence.

   Some absences do interrupt an alien’s continuous physical
presence, no matter how brief. In Vasquez-Lopez v. Ashcroft,
343 F.3d 961, 972 (9th Cir. 2003), amending 315 F.3d 1201
(9th Cir. 2003), we held that an alien who left the United
States pursuant to a formal process known as administrative
voluntary departure2 could not continue to accrue presence in
the United States from an earlier date. In so holding, we
explicitly deferred to In re Romalez-Alcaide, 23 I. & N. Dec.
423 (BIA 2002) (en banc), in which the BIA concluded that
an administrative voluntary departure interrupted an alien’s
continuous physical presence.

   But what if the alien departed the country on his own to
attend to a family matter and was stopped and turned away at
the border by immigration officials when he initially
attempted to return to this country a month later, as in the case
before us? Does such a rejection have the same effect as an
administrative voluntary departure, terminating the accrual of
physical presence in the United States for the purpose of eligi-
bility for cancellation of removal? The IJ concluded that it
does, reasoning that this case was also controlled by Romalez-
Alcaide. The BIA affirmed without opinion. We disagree,
however, and conclude that being turned away at the border
by immigration officials does not have the same effect as an
administrative voluntary departure and does not itself inter-
rupt the accrual of an alien’s continuous physical presence.
Because that was the reason Tapia was deemed ineligible for
cancellation of removal, we grant his petition for review and
remand for further proceedings.
  2
    Administrative voluntary departure is “ ‘a term of art, denoting a form
of relief from removal provided for by statute.’ ” Morales-Morales v. Ash-
croft, 384 F.3d 418, 425-26 (7th Cir. 2004) (quoting a brief filed by the
government).
                       TAPIA v. GONZALES                  15733
I.   BACKGROUND

   Tapia testified that he has been living in the United States
since January of 1991 and has worked for the same employer
since his arrival, beginning as a general field hand and prog-
ressing to a more senior full-time position at one of the com-
pany’s strawberry nurseries. He earns approximately $38,000
to $40,000 a year, and his employer provides housing for his
family. In February 1997 Tapia married his wife, who at that
time was also present here illegally. Ten months later they
had a son born in the United States.

   Upon learning of his brother’s death, Tapia went to Mexico
in December of 1999 to be with his parents. Beginning on
January 14, 2000, Tapia attempted to cross back into the
United States. On his first four attempts, Tapia was stopped,
turned around, and sent back to Mexico each time. Each of
Tapia’s thwarted crossings was documented by immigration
officials, who entered his fingerprints and picture in the com-
puter database designed to track individuals apprehended at
the border. On his first attempt, he was apprehended at the
point of entry in El Paso, Texas, detained for a few hours, and
then simply released back to Mexico. The next day Tapia
attempted to cross the border approximately sixteen miles
away in Fabens, Texas. He was apprehended and returned to
Mexico. Three days later he tried again in Fabens, with the
same result. He next attempted to cross in Boulevard, Califor-
nia, on January 23, 2000. Once again, he was caught and
released back to Mexico. On his fifth attempt, on or about
January 30, 2000, Tapia made it across the border, albeit
without proper authorization, and thereafter returned to his
home and family in Oregon.

   On March 15, 2001, the government brought proceedings
to remove both Tapia and his wife from the United States.
Each applied for cancellation of removal and adjustment of
status to that of an alien lawfully admitted for permanent resi-
dence under 8 U.S.C. § 1229b(b). Mrs. Tapia prevailed as the
15734                  TAPIA v. GONZALES
primary caregiver for her seriously ill mother, a permanent
resident awaiting a liver transplant.

   The IJ ruled against Tapia, however, relying on Romalez-
Alcaide, as noted above. In that decision, the BIA held that an
alien who departed pursuant to a grant of administrative vol-
untary departure terminated the continuity of his physical
presence. 23 I. & N. Dec. at 429. Although the IJ character-
ized each of Tapia’s four failed attempts to reenter the United
States as merely “a turnaround at the border,” he concluded
that such a turnaround was legally equivalent to the adminis-
trative voluntary departure at issue in Romalez-Alcaide, since
in both situations the alien made a choice to depart the coun-
try in lieu of removal proceedings. As a result, the IJ held that
Tapia did not satisfy the ten-year requirement and was not eli-
gible for cancellation of removal. The IJ denied Tapia’s peti-
tion and granted him voluntary departure in lieu of removal.
The BIA affirmed the IJ’s decision without opinion.

II.    JURISDICTION

   While 8 U.S.C. § 1252(a)(2)(B) precludes a court’s direct
review of the Attorney General’s discretionary decisions, the
court may consider the predicate legal question of whether the
IJ properly applied the law to the facts in determining an indi-
vidual’s eligibility to be considered for relief. See Romero-
Torres v. Ashcroft, 327 F.3d 887, 889-90 (9th Cir. 2003). The
determination of whether an alien has satisfied the continuous
physical presence requirement is a factual inquiry guided by
legal standards. The decision is non-discretionary, so we
retain appellate jurisdiction over the issue. See Kalaw v. INS,
133 F.3d 1147, 1151 (9th Cir. 1997).

III.    DISCUSSION

  Where the BIA affirms an IJ’s order without opinion, we
review the IJ’s decision as the final agency action. Khup v.
Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004). We review the
                      TAPIA v. GONZALES                  15735
IJ’s determination of purely legal questions de novo. Kanka-
malage v. INS, 335 F.3d 858, 861 (9th Cir. 2003).

   [1] The only two circuits that have compared the effects of
an administrative voluntary departure and a turnaround at the
border on the continuity of an alien’s physical presence have
concluded that the two means of departure are substantively
and procedurally distinguishable and that only the former
interrupts the continuity of an alien’s physical presence. See
Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 907 (8th Cir. 2005)
(holding that an alien who had been present in the United
States since 1984 and returned to Mexico for two weeks in
1990 to attend to his ailing grandfather did not break the con-
tinuity of his presence by simply being turned around at the
border upon his attempted reentry); Morales-Morales v. Ash-
croft, 384 F.3d 418, 427 (7th Cir. 2004) (holding that an alien
who had been present in the United States since 1986 and
went to Mexico for approximately two weeks in 1999 to care
for her gravely ill mother did not break her continuous physi-
cal presence when she was turned around at the border upon
attempting to reenter the United States). In a decision
announced after it affirmed without opinion the IJ’s decision
in this case, the BIA has likewise concluded that a turnaround
at the border by itself does not interrupt an alien’s physical
presence. In re Avilez-Nava, 23 I. & N. Dec. 799, 807 (BIA
2005) (en banc). In reaching its conclusion in that case the
BIA cited with approval and stated that it was guided by the
Seventh and Eighth Circuit decisions noted above, Morales-
Morales and Reyes-Vasquez. Id. at 804-05.

  [2] Upon review of the relevant statutory provisions, we
agree that being turned away by immigration officials at the
border while attempting to reenter this county does not itself
have the effect of terminating an alien’s accrual of physical
presence in the United States in the same way that removal or
administrative voluntary departure does.
15736                    TAPIA v. GONZALES
   Congress initially established the physical presence require-
ment through a 1948 amendment to the Alien Act of 1940.3
Endorsing the amendment, the Senate Judiciary Committee
explained that it was necessary in order to provide an opportu-
nity for relief for individuals who had lived in the United
States for many years, but were deportable on technical
grounds.4 In passing the original amendment Congress explic-
itly recognized that individuals who had resided in the United
States for a substantial period of time were likely to have
established deep roots in the country, which in certain situa-
tions justified an individualized determination by the Attorney
General as to whether deportation would be unduly harsh. See
S. Rep. No. 80-1204, 1948 U.S.C.C.A.N. 2234, 2236 (reason-
ing that as the committee already reviewed selected cases of
deportable aliens who had resided in the United States for
many years and, where appropriate, recommended the enact-
ment of private bills to adjust their immigration status, it was
“only just that other persons in this category who have not
been favored by the introduction of private bills should have
their cases considered for relief”).

   Consistent with its intent to provide an opportunity for
relief to aliens who have been long-term residents of this
country, Congress subsequently made clear that the physical
presence requirement should be applied with a degree of flex-
ibility, such that an individual who otherwise meets the
requirement “does not destroy his eligibility by actions that do
not affect his commitment to living in this country.”
Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir. 1995).
It did so in direct response to a decision by the Supreme Court
which interpreted the requirement for “continuous” physical
presence literally. Reviewing a predecessor to the current
§ 1229b, the Court concluded that the requirement of “contin-
  3
    Act of July 1, 1948, Pub. L. No. 80-863, 62 Stat. 1206, amending the
Alien Registration Act, 54 Stat. 670 (1940).
  4
    S. Rep. No. 80-1204 (1948), reprinted in 1948 U.S.C.C.A.N. 2234,
2236.
                       TAPIA v. GONZALES                  15737
uous” physical presence meant that an alien could not leave
the country for any reason, no matter how brief, without irrev-
ocably breaking the continuity of his physical presence. INS
v. Phinpathya, 464 U.S. 183, 195-96 (1984).

   Congress reacted by amending the statute to include an
explicit exception to the continuous physical presence
requirement for absences that were “brief, casual, and inno-
cent.” The Immigration Reform and Control Act of 1986,
Pub. L. No. 99-603, § 315(b), 100 Stat. 3359 (the “1986
amendment”). Introducing the 1986 amendment, Rep. Roybal
explained that it was “the intent of Congress that the require-
ment [of continuous physical presence] not be literally or
strictly construed in light of the recent Supreme Court opinion
that did so. The practical result of the Supreme Court’s opin-
ion is to nullify the suspension of deportation provision, a
result Congress could not have intended.” 130 Cong. Rec.
H16,348 (June 14, 1984). Elaborating, Rep. Frank explained
that “[w]hat we want to say is that if you had no intention of
breaking your residence, but if you left on a brief vacation or
a family problem, that should not make you start from scratch
from the present.” Id. at 16,349.

   [3] Congress revised the relevant statute again ten years
later in 1996. The 1996 amendment, which governs this case
and continues to be in effect, is codified at 8 U.S.C.
§ 1229b(d)(2), and titled “Treatment of certain breaks in pres-
ence.” It provides that an alien breaks the continuity of his
physical presence if he departs from the United States “for
any period in excess of 90 days or for any periods in the
aggregate exceeding 180 days.” Although the language pro-
viding an affirmative exception for a “brief, casual, and inno-
cent” absence was dropped in the 1996 revision, by providing
that absence for a period in excess of ninety days breaks the
continuity of physical presence, the statute as amended
plainly indicates that an absence of a shorter duration does not
necessarily break the continuity of presence in this country.
As we reasoned in Vasquez-Lopez, if Congress had intended
15738                  TAPIA v. GONZALES
to create a bright line rule in which an absence of any length
interrupts an alien’s continuous physical presence, “it would
have been pointless for it to mandate that absences beyond the
90/180-day period would constitute a break.” 343 F.3d at 972.

   [4] Because Congress did not explicitly specify when an
alien absent for less than ninety days may continue to accrue
time toward the continuous physical presence requirement
and when the accrual of time is terminated, we must make
that decision by interpreting the statute in a way consistent
with Congress’s intent. See United States v. Buckland, 289
F.3d 558, 565 (9th Cir. 2002) (en banc) (“Where the language
is not dispositive, we look to the congressional intent revealed
in the history and purposes of the statutory scheme.”) (internal
quotation omitted).

   In Vasquez-Lopez we followed the BIA’s reasoning in
Romalez-Alcaide that because an order of removal is intended
to end an alien’s physical presence and because an adminis-
trative voluntary departure is in lieu of removal proceedings
and the entry of an order of removal, “it followed that admin-
istrative voluntary departures should likewise be seen as sev-
ering the alien’s physical tie to the United States.” Vasquez-
Lopez, 343 F.3d at 972. The Vasquez-Lopez decision also
noted that the BIA in Romalez-Alcaide “likened the proceed-
ings” under the statute governing administrative voluntary
departure to a “ ‘plea bargain,’ ” and then quoted the BIA’s
decision to explain its reasoning:

    The alien leaves with the knowledge that he does so
    in lieu of being placed in proceedings. The clear
    objective of an enforced departure is to remove an
    illegal alien from the United States. There is no legit-
    imate expectation by either of the parties that an
    alien could illegally reenter and resume a period of
    continuous physical presence.

343 F.3d at 973 (quoting Romalez-Alcaide, 23 I. & N. Dec.
at 429).
                           TAPIA v. GONZALES                         15739
   Tapia’s situation is distinguishable. Unlike the alien in
Vasquez-Lopez, Tapia did not depart pursuant to a formalized
process that resulted in an agreement “under which [he]
agreed to depart and not to return other than in accordance
with the entry process applicable to all aliens.” 343 F.3d at
974. Vasquez-Lopez could not resume his prior residence in
the country without violating the agreement he signed with
the government. 8 C.F.R. § 240.25(c). Tapia entered into no
such agreement. That makes a critical difference. See Reyes-
Vasquez, 395 F.3d at 907-08 (observing that those cases in
which a finding of a break in continuous presence has been
upheld, the threat of deportation was clearly expressed and
understood by the alien and the record contained evidence
that the alien was informed of and accepted the terms of his
departure).

   Moreover, unlike the alien in Vasquez-Lopez, Tapia was
not statutorily prohibited from immediately reapplying for
admission to the United States. Both removal and administra-
tive voluntary departure bar the alien from seeking readmis-
sion to the United States for a period of years. See 8 U.S.C.
§ 1182(a)(9). To permit an alien who was removed or left pur-
suant to an administrative voluntary departure to continue to
accrue physical presence would thwart Congress’s clear intent
that such an alien be inadmissible for years following the date
of his departure. See Romalez-Alcaide, 23 I. & N. Dec. at 429
(explaining that when an alien departs pursuant to an adminis-
trative voluntary departure there “is no legitimate expectation
by either of the parties that [he] could illegally reenter and
resume a period of continuous physical presence”). Those
statutory bars did not apply to Tapia, however.5 It simply can-
not be said in this case, as it was in Romalez-Alcaide and
Vasquez-Lopez, that there was “ ‘no legitimate expectation by
either of the parties that [the alien] could illegally reenter and
  5
    Indeed, in his affidavit Tapia claimed he was explicitly told by a border
officer that because he was voluntarily returning to Mexico, it would have
no effect on his ability to return to the United States in the future.
15740                  TAPIA v. GONZALES
resume a period of continuous physical presence.’ ” Morales-
Morales, 384 F.3d at 428 (quoting Romalez-Alcaide, 23 I. &
N. Dec. at 429).

   [5] We conclude that, for purposes of determining eligibil-
ity for cancellation of removal, Tapia’s physical presence was
not interrupted by the fact that he was initially stopped and
turned around at the border when he attempted to reenter the
country. To hold otherwise would be contrary to Congress’s
intent to imbue the continuous physical presence requirement
with flexibility to accommodate humanitarian objectives, such
as an alien’s brief trip back to his native country after the
passing of a family member, which do not reflect on the
alien’s long-term commitment to this country or the depth of
roots he has established here. An alien’s roots are no less deep
and ties no less interwoven simply because he was stopped at
the border on his initial attempts to reenter this country after
briefly departing on a trip that did not meaningfully interrupt
his relationship with the United States.

   [6] The exception for brief absences cannot be denied sim-
ply because an alien attempted to reenter the United States
illegally. If attempting an unlawful reentry precluded applica-
tion of the “brief absence” exception, the statute would have
no meaning. Tapia, like others in his situation facing removal
from this country, was not eligible to come back legally. If he
could have, he presumably would not be facing removal.

   [7] Nor would it be logical or consistent with the intent of
the statute to limit eligibility to those returning aliens who
were able to return without being stopped or getting caught on
their first attempt. If we were to conclude that being turned
around at the border in and of itself interrupted an alien’s
physical presence, we would arbitrarily reward those return-
ing aliens who were particularly adept or lucky in their ability
to cross the border without getting stopped. Whether a return-
ing alien can successfully cross into the United States on his
                       TAPIA v. GONZALES                   15741
first try has no relevance to the rationale behind the exception
Congress created for brief breaks in physical presence.

   We note that the BIA currently appears to agree with this
analysis. Its decision in Avilez-Nava concerned an alien who
was not successful in returning to the United States on the
first try. That case, like this one, involved the ten-year physi-
cal presence requirement for cancellation of removal. The
alien in that case testified that she had returned to Mexico one
time, for approximately two weeks, to support her mother
after her grandmother died. When she sought to return to the
United States through a port of entry, she was stopped by
immigration authorities, told that she could not enter because
she did not have proper documents, and was then escorted to
a door back across the border and returned to Mexico. She re-
entered illegally two days later. Although the IJ denied her
application for cancellation of removal, the BIA concluded
that her case was distinguishable from Romalez-Alcaide and
sustained her appeal of the IJ’s decision.

   [8] Tapia’s photograph and fingerprints were taken by bor-
der officers when he was turned away, and information about
the rejections was entered into the government’s computer
database, but that does not cause us to reach a different con-
clusion. Whether an alien happened to encounter a border
officer who decided to make a record of the turnaround or to
take a photograph or fingerprints of the alien before returning
him to Mexico has no bearing on whether that alien has devel-
oped a significant relationship with the United States through
an extended residency such that he should qualify for an
opportunity to have the Attorney General consider his situa-
tion for possible cancellation of removal.

   We recognize that in Avilez-Nava, 23 I. & N. Dec. at 805,
the BIA identified photographs and fingerprints as two types
of evidence which may indicate that an alien was subjected to
“formal, documented process” sufficient to break his continu-
ous physical presence. Id. at 805-06. The BIA did not hold
15742                 TAPIA v. GONZALES
that the acts of photographing or fingerprinting themselves
constituted sufficient formal process, however. Indeed, it
could not so hold, given its approval of the Eighth Circuit’s
decision in Reyes-Vasquez, since its own description of
Reyes-Vasquez noted that the alien involved in that case had
been fingerprinted by the Border Patrol. See 23 I. & N. Dec.
at 805.

   [9] The making of that kind of record does not amount to
a “formal, documented process pursuant to which the alien
was determined to be inadmissible.” Id. at 801. In contrast to
the informality surrounding a turnaround at the border, where
Congress has authorized immigration officials to make an
actual determination of inadmissibility, it has identified spe-
cific procedures and authorized only certain individuals to
make the determination, not any immigration or border offi-
cer. See 8 C.F.R. §§ 240.25 (administrative voluntary depar-
ture), 235.3 (expedited removal). Nor does the existence of a
record of a turnaround demonstrate that the alien entered into
an agreement not to return to the United States later. There is
no reason that Tapia should be treated differently just because
a record was made when he was turned away.

IV.     CONCLUSION

   [10] Because Tapia was turned around at the border with-
out entering into a formal agreement with the government
whereby the terms and conditions of his departure were
clearly specified, and because he was not statutorily barred
from immediately reapplying for admission to the United
States, we grant his petition. We do not hold that Tapia has
satisfied the requirement of being continuously present in the
United States, but only that the fact that he was turned around
at the border when he initially attempted to reenter did not
interrupt the continuity of his presence. We therefore remand
this matter to the BIA for further proceedings. To be statu-
torily eligible for cancellation of removal, Tapia must estab-
lish that he meets the ten-year physical presence requirement,
                       TAPIA v. GONZALES                  15743
as well as the other requirements set out in the statute. On
remand both parties are entitled to present additional evidence
regarding any of the predicate eligibility requirements, includ-
ing continuous physical presence.

  PETITION GRANTED; REMANDED.
