                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2259


BALTAZAR OLEA GARCIA,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Argued:   September 18, 2013                Decided:   October 16, 2013


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.


Petition for review denied by published opinion.             Judge Motz
wrote the opinion, in which Judge Wilkinson and             Judge Floyd
joined.


ARGUED: Jeremy Layne McKinney, MCKINNEY PERRY & COALTER,
Greensboro, North Carolina, for Petitioner. Brendan Paul Hogan,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant   Attorney  General,   Cindy   S.  Ferrier,    Assistant
Director, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
DIANA GRIBBON MOTZ, Circuit Judge:

      In this appeal, Baltazar Olea Garcia challenges an order of

the Board of Immigration Appeals (“BIA”) denying his application

for cancellation of removal on the ground that he failed to meet

the   “continuous         physical      presence”           requirement         of     8    U.S.C.

§ 1229b.       We deny Garcia’s petition for review.



                                              I.

      In 1995, Garcia, a native and citizen of Mexico, entered

the United States illegally.                  In 2001, he left this country to

attend his father’s funeral.                 When Garcia returned to the United

States     a    week     later,    Immigration             and   Naturalization            Service

(“INS”)        officers      detained       him       at   the    border       and     took   his

fingerprints and photograph.                 According to Garcia, INS officers

offered    him     the       opportunity      to       appear    before       an     immigration

judge, but he declined, opting to return to Mexico voluntarily.

Several days later, he reentered the United States undetected.

      In       2009,    the     Department            of   Homeland         Security       (“DHS”)

initiated removal proceedings against Garcia.                                He conceded his

removability,          but    filed    an    application              for    cancellation      of

removal.

      At a 2011 hearing on the merits of his application, Garcia

testified       about     his   2001    apprehension             at    the    United       States-

Mexico border.            He remembered being stopped by INS officers,

                                                  2
whom he believed informed him of his right to appear before an

immigration               judge.        Garcia       testified     that    “[t]hey    told     me

that . . .            I    could    sign       [a]    voluntary      departure     deportation

paper, or if I wanted to, I . . . could have a lawyer to . . .

see the [immigration] [j]udge.”                            AR 109.      Unable to afford an

attorney, Garcia chose to return to Mexico voluntarily.

       The DHS introduced a US-VISIT report 1 indicating that Garcia

had been fingerprinted and photographed in connection with the

2001 border stop.                   The DHS did not offer any departure form

signed by Garcia, nor did the US-VISIT report indicate whether

Garcia          had       signed        one.         Garcia     offered    no     evidence      -–

testimonial               or   otherwise       –-    expressly       addressing    whether      he

signed any documentation.

       The immigration judge concluded that Garcia was statutorily

ineligible for cancellation of removal because he could not show

that       he    continuously            resided      in    the   United    States    for      the

preceding         ten          years.      Citing         the   BIA’s   decision     in   In    re

Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002), the judge held


       1
       The United States Visitor and Immigrant Status Indicator
Technology Program (“US-VISIT”) is “an integrated, automated
entry-exit system that records the arrival and departure of
aliens; verifies aliens’ identities; and authenticates aliens’
travel documents through comparison of biometric identifiers.”
United States Visitor and Immigrant Status Indicator Technology
Program (“US-VISIT”), 69 Fed. Reg. 53,318-01 (Aug. 31, 2004) (to
be codified at 8 C.F.R. pts. 215, 235, 252).        In 2013, the
Office of Biometric Management (“OBIM”) replaced US-VISIT.


                                                      3
that an alien’s physical presence terminates if he voluntarily

departs the country instead of submitting to removal -– at least

insofar   as     his   departure      occurs    pursuant   to     a   “formal,

documented process.”        AR 310 (quoting In re Avilez-Nava, 23 I. &

N. Dec. 799, 805 (BIA 2005)).              The immigration judge concluded

that Garcia’s testimony, coupled with the DHS’s US-VISIT report,

sufficed to show that Garcia had been formally excluded from the

United States, ending his continuous presence here.

     After the BIA affirmed, Garcia noted a timely appeal.



                                      II.

     Removable     aliens    may   petition     the   Attorney    General    for

cancellation of removal pursuant to 8 U.S.C. § 1229b (2006).                  To

prevail, a petitioner must prove that he has been “physically

present in the United States for a continuous period of not less

than 10 years” prior to the filing of removal proceedings.                   Id.

§ 1229b(b)(1)(A); see also Salem v. Holder, 647 F.3d 111, 116

(4th Cir. 2011) (alien bears burden of proving eligibility for

cancellation of removal by preponderance of the evidence).                   The

statute   sets    forth     several   circumstances     that     terminate    an

alien’s continuous presence:

     (1) Termination of continuous period

     For purposes of this section, any period of continuous
     residence or continuous physical presence in the
     United States shall be deemed to end (A) . . . when

                                       4
      the alien is served a notice to appear under section
      1229(a) of this title, or (B) when the alien has
      committed an offense referred to in section 1182(a)(2)
      of this title . . . .

      (2) Treatment of certain breaks in presence

      An alien shall be considered to have failed to
      maintain continuous physical presence in the United
      States under 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.

8 U.S.C. § 1229b(d).

      In addition to the conditions specified in the statute, the

BIA   has    held    that    an    alien’s      continuous    physical     presence

terminates when he voluntarily departs the United States under

threat of removal.           Romalez-Alcaide, 23 I. & N. Dec. at 429.

The BIA reasoned that it would be incongruous for an alien’s

physical presence to terminate if he were formally deported, but

for his physical presence to continue if he voluntarily departed

so as to avoid deportation.          Id. at 426-27.

      Although      an   alien’s    departure       under    threat   of   removal

renders him ineligible for cancellation of removal, the BIA has

clarified that an alien’s departure is not disqualifying if INS

officers simply turn him away at the border.                 Avilez-Nava, 23 I.

& N. Dec. at 805.           In this circumstance, the INS had not “made

[the alien] aware of the opportunity for exclusion proceedings,”

and   thus    his    encounter      with       immigration   officials     is   too

informal to count as a departure under threat of removal.                   Id.

                                           5
       The BIA further explained in Avilez-Nava that to interrupt

“continuous     presence”    under    8       U.S.C.   § 1229b(d),     an     alien’s

departure must exhibit some level of formality, documented by

some sort of record.          Id. at 805-06.             Evidence of a formal,

documented process includes “testimony or documentary evidence,”

such    as    voluntary    departure          forms,   affidavits,     or     “other

appropriate . . . records.”          Id. at 806.

       Garcia poses two arguments on appeal.                  We consider each in

turn.



                                      III.

       Garcia   initially     contends         that    the    BIA’s   decision      in

Romalez-Alcaide conflicts with the unambiguous text of § 1229b.

When    a    litigant   contests     an       agency’s       interpretation    of   a

statute, “we employ the familiar analysis prescribed by Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984).”         William v. Gonzales, 499 F.3d 329, 331 (4th

Cir. 2007).

       Chevron review involves a two-step analysis.                     First, we

must assess whether “the statute is silent or ambiguous with

respect to the specific issue” before us.                    Chevron, 467 U.S. at

843.    If so, we must determine whether the agency’s construction

is reasonable.      Id.     An agency’s reasonable interpretation of a



                                          6
statute will prevail, even if a better construction is possible.

Id.

       Here,   section      1229b   is   silent    as    to     whether    an    alien’s

voluntary      departure     under    threat      of    removal       terminates     his

“continuous physical presence” in the country.                     The statute does

not define “continuous physical presence,” but merely specifies

situations in which an alien’s continuous presence “shall be

deemed to end.”        8 U.S.C. § 1229b(d)(1).                 The statute provides

that   an    alien’s    continuous       presence      terminates        when    removal

proceedings commence or when he commits certain kinds of crimes.

See    id.       It    further      specifies      that        continuous       presence

terminates “if the alien [departs] the United States for any

period in excess of 90 days or for any period in the aggregate

exceeding 180 days.”         See id. § 1229b(d)(2).

       Garcia contends that the latter provision constitutes the

entire regulation of aliens’ breaks in presence.                          According to

Garcia, if an alien departs the country for fewer than 90 days

(or 180 days in aggregate), his “continuous physical presence”

has not ended.         We disagree.       Although § 1229b(d)(2) specifies

that certain breaks in presence render an alien ineligible for

cancellation     of    removal,      these    breaks      do    not    constitute     an

exhaustive     list    of   every    circumstance       terminating        an    alien’s

continuous      physical      presence.         The     statute       provides     that

“continuous      physical       presence”       terminates         “if     the     alien

                                          7
[departs]” for more than ninety days; it does not provide that

physical    presence      terminates        if    and       only      if     the    alien     so

departs.    Id. § 1229b(d)(2).

      In    light        of     this   statutory                silence,       the         BIA’s

interpretation       is       reasonable.            That       the    statute        renders

departures in excess of ninety days “breaks in presence” does

not preclude a regulation making certain absences of shorter

duration also “breaks in presence.”                   The BIA’s logic in Romalez-

Alcaide is sound.             Section 1229b(d)(1) terminates an alien’s

continuous physical presence when the DHS files a removal action

against him.      Allowing an alien to evade termination by leaving

the   country     voluntarily      would        create      a    loophole          that    would

frustrate the statutory framework.

      Garcia    finds     it     significant         that       the    BIA’s       regulation

predates    the     statutory      language          pursuant         to    which     it    was

promulgated.        He    notes    that     under       a    prior         version    of     the

Immigration and Nationality Act (“INA”), an alien could petition

for   suspension     of       deportation       if    he     had      been    continuously

present in the country for seven years -– “brief, casual, and

innocent    departures”         notwithstanding.                Id.    § 1254       (repealed

1996).     Construing the old text, the BIA held that a voluntary

departure under threat of deportation was not “brief, casual,

and innocent,” and thus an alien who so departed was ineligible

for statutory relief.           See Hernandez-Luis v. INS, 869 F.2d 496,

                                            8
498   (9th   Cir.    1989).          In    1996,       Congress       amended        the    INA,

replacing    its     “brief,     casual,         and        innocent”        language        with

§ 1229b(d)(2)’s quantitative standard.                        Garcia argues that to

give effect to this new language, the BIA must be prohibited

from promulgating regulations identical to those issued under

the predecessor statute.

      We disagree.       The BIA’s decision in Romalez-Alcaide is not

inconsistent     with    a    change      in     the    law.         By     implementing       a

quantitative standard, Congress cabined the BIA’s authority to

define   which      departures       by    aliens       are     “brief,           casual,    and

innocent.”       This    shift   from       a    qualitative          to    a     quantitative

standard,    however,         does    not        evince       Congress’s           intent     to

eliminate the BIA’s discretion altogether.                             On the contrary,

section 1229b(d)(2)’s          text       entirely          accords        with    the      BIA’s

retention of some discretionary authority.

      We note that all of our sister circuits to have considered

the question have found the BIA’s construction permissible.                                   See

Barrera-Quintero        v.   Holder,       699       F.3d    1239,     1245        (10th     Cir.

2012); Vasquez v. Holder, 635 F.3d 563, 570 (1st Cir. 2011);

Ascencio-Rodriguez       v.    Holder,         595    F.3d     105,       112-13     (2d     Cir.

2010); Mendez-Reyes v. Attorney Gen., 428 F.3d 187, 191-92 (3d

Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418, 427 (7th

Cir. 2004); Palomino v. Ashcroft, 354 F.3d 942, 944-45 (8th Cir.

2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217-18 (5th

                                            9
Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 972-73 (9th

Cir. 2003) (per curiam).               Like our sister circuits, we uphold

the BIA’s interpretation of § 1229b.



                                           IV.

      Alternatively, Garcia argues that even if Romalez-Alcaide

controls, the BIA erred in applying its holding to the facts of

his     case.     We       review    BIA   decisions     regarding        an     alien’s

eligibility       for       cancellation         of    removal      –-         including

determinations        of    his     “continuous   physical       presence”       –-   for

substantial evidence.              See Ramos v. Holder, 660 F.3d 200, 203

(4th Cir. 2011).            To reverse, we must find that the evidence

before the BIA “was so compelling that no reasonable factfinder

could     fail   to   find”       eligibility    for   relief.      INS    v.    Elias-

Zacarias, 502 U.S. 478, 483-84 (1992); Elliott v. Adm’r, Animal

& Plant Health Inspection Serv., 990 F.2d 140, 144 (4th Cir.

1993).

      As announced in Avilez-Nava, the BIA regards an alien’s

departure as severing physical presence in the country only when

the alien departs pursuant to a “formal, documented process.”

23 I. & N. Dec. at 805-06. 2            In this case, the BIA reasoned that


      2
       This court has yet to address whether a formal, documented
process is necessary to sever an alien’s continuous presence in
the United States for purposes of cancellation of removal.
(Continued)
                                           10
Garcia’s testimony, coupled with a US-VISIT report, established

that he received a “formal, documented process.”                              AR 3.      Garcia

claims    that       this    evidence        was       insufficient      to   establish      his

formal    documented             departure,       rendering       his   return     to    Mexico

ineffective         in    terminating         his       continuous      physical       presence

here.

       The argument fails.                 Garcia’s own testimony demonstrated

the formality of the process he received.                               He testified that

when     the    INS       detained        him,      officers      informed       him    of   his

inadmissibility to the United States.                               Further, he testified

that     officers         told      him      that      he    could      return    to     Mexico

voluntarily,         or     if    he   desired,         a   judge    could    determine      his

eligibility          to     enter      the       country.           Specifically,        Garcia

testified:          “They told me that . . . I could sign [a] voluntary

departure deportation paper, or if I wanted to, I . . . could

have a lawyer to . . . see the [immigration] [j]udge.”                                  AR 109.

Accordingly, Garcia’s situation differs from that of the alien

involved       in     Avilez-Nava.               Garcia     was     “made     aware     of   the

opportunity for exclusion proceedings” and understood that he

could avail himself of procedures to determine his eligibility




Because the Government does not suggest that the BIA could deny
Garcia’s application absent a formal process, we assume it is
necessary to the BIA’s disposition.


                                                  11
for entry.      Cf. Avilez-Nava, 23 I. & N. Dec. at 805.                     We are not

faced with an alien merely “turned away” at the border.                          See id.

       Moreover,     Garcia’s       process     was        documented.          The    DHS

introduced a US-VISIT report, which indicated that Garcia was

stopped at the border and engaged with INS officers.                                To be

sure, the report did not indicate the manner by which Garcia

departed the country or what was said to him before he left.

But it did state the date and time of Garcia’s apprehension and

showed that INS officers fingerprinted and photographed him.                              We

cannot    conclude        that   the   BIA    erred        in   finding      that      this

document, together with Garcia’s testimony, showed that Garcia

departed the United States pursuant to a “formal, documented

process.”

       Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005), on which

Garcia relies, is not to the contrary.                 There, the Ninth Circuit

held     that   a   record       establishing        the     fact     of   an     alien’s

fingerprinting       did     not    establish     the        fact     of   his      formal

departure.      Id. at 1002.        But in that case, the alien offered no

testimony regarding the level of formality by which he departed

the    country.       Though       officers    detained         him    and      took     his

fingerprints,       the    interaction       could    have      preceded        either     a

formal or an informal departure.               Here, Garcia testified to his

receipt of a formal process.            The US-VISIT report served only to



                                         12
memorialize        an     encounter,       the     particulars        of     which       were

established by the alien’s own testimony.

       The    BIA’s     analysis     and   our     conclusion       comport       with   the

burden-shifting          standard     of   the     INA.       As    an    applicant      for

cancellation of removal, Garcia bore the burden of proving that

he    was    eligible     for   relief.          Salem,     647    F.3d    at    116.     To

prevail, he had to show that he was not subject to a documented

process by which he left the country.                       On this point, Garcia’s

testimony was unclear.               He did not expressly state whether he

signed      any   documents     –-    or   failed      to   sign    any     documents     –-

leaving the BIA to guess whether he was eligible for relief.

Our    precedent        counsels     the   BIA    to    resolve      such       ambiguities

against Garcia.          Id. at 120 (“where . . . the relevant evidence

. . . is in equipoise, a petitioner has not satisfied his burden

to prove eligibility for relief from removal.”).                          In accord with

our directives, the BIA correctly rejected Garcia’s application

for cancellation of removal.



                                            V.

       For the reasons stated above, Garcia’s petition for review

is

                                                                                    DENIED.




                                            13
