CASTREJON-COLINO

Cite as 26 I&N Dec. 667 (BIA 2015) Interim Decision #3849
667
Matter of Enrique CASTREJON-COLINO, Respondent
Decided October 28, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary
departure or return does not break the alien’s continuous physical presence for
purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that
he or she was informed of and waived the right to such a hearing. Matter of Avilez,
23 I&N Dec. 799 (BIA 2005), clarified.
(2) Evidence that an alien who had the right to a hearing before an Immigration Judge
was fingerprinted and/or photographed before being allowed to voluntarily depart is
not enough, in itself, to demonstrate a waiver of the right to a hearing or to show
a process of sufficient formality to break continuous physical presence.
FOR RESPONDENT: Rachel Effron Sharma, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Morris I. Onyewuchi,
Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MILLER, and GUENDELSBERGER, Board
Members.
GUENDELSBERGER, Board Member:
In a decision dated January 25, 2012, an Immigration Judge pretermitted
the respondent’s application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)
(2012), finding that his continuous physical presence was terminated by his
January 2001 voluntary return to Mexico. The respondent has appealed
from that decision. The appeal will be sustained and the record will be
remanded to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who first entered the
United States in 1992. In December 2000, he departed to visit family in
Mexico. After a 6-week absence, he reentered the United States unlawfully
in January 2001. He was apprehended by Border Patrol agents,
fingerprinted and photographed, and asked to sign the screen of a small

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electronic device that displayed unknown content. The respondent
voluntarily returned to Mexico and, within days of his departure, reentered
the United States. His next encounter with immigration officials in May
2009 resulted in the preparation of a Record of Deportable/Inadmissible
Alien (Form I-213) and service of the notice to appear commencing these
removal proceedings.
In proceedings before the Immigration Judge, the respondent conceded
removability and submitted an application for cancellation of removal. The
Department of Homeland Security (“DHS”) moved to pretermit the
application, arguing that the respondent’s voluntary return in January 2001
broke his continuous physical presence before he had accrued the necessary
10-year period to establish eligibility for that relief.
The respondent contends that the abbreviated process associated with
his January 2001 voluntary return, which he claims took approximately
2 minutes, was not sufficiently formal to break his physical presence. He
states that he was not threatened with removal proceedings or provided any
explanation of rights or warnings. The respondent therefore asserts that his
voluntary return was not made with any agreement that his departure was in
lieu of being placed in removal proceedings.
II. ISSUE
The issue in this case is whether the evidence in the record establishes
that the respondent’s voluntary return to Mexico was a formal, documented
process sufficient to break his continuous physical presence for purposes of
establishing eligibility for cancellation of removal.
III. ANALYSIS
An alien seeking cancellation of removal must demonstrate physical
presence in the United States “for a continuous period of not less than
10 years immediately preceding the date of such application.” Section
240A(b)(1)(A) of the Act. The continuity of physical presence is broken by
a departure from the United States “for any period in excess of 90 days or
for any periods in the aggregate exceeding 180 days.” Section 240A(d)(2)
of the Act.
The presence-breaking rule described in section 240A(d)(2) is not the
exclusive measure of what departures may terminate a period of physical
presence. In Matter of Romalez, 23 I&N Dec. 423 (BIA 2002), we
concluded that a departure with the knowledge that a voluntary return is in
lieu of being placed in deportation or removal proceedings is an enforced
departure that likewise ends continuous physical presence. In that regard,

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we stated that such circumstances create “no legitimate expectation . . . that
an alien could illegally reenter and resume a period of continuous physical
presence.” Id. at 429. The courts in nine circuits have agreed with our
conclusion in Romalez that continuous physical presence can be terminated
by a departure or departures of shorter duration than those specified in
section 240A(d)(2) of the Act.1
In Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), we addressed the
situation of an alien who was permitted to return to Mexico after being
refused admission during an undocumented encounter with an immigration
official at a land border port of entry. We held that such a voluntary return
will not break an alien’s continuous physical presence unless there is
evidence that the alien (1) was formally excluded or made subject to an
order of expedited removal; (2) was offered and accepted the opportunity to
withdraw an application for admission; or (3) was “subjected to any other
formal, documented process pursuant to which the alien was determined to
be inadmissible to the United States.” Id. at 805−06.
At the time of her departure, the alien in Avilez had a right to a hearing
before an Immigration Judge in formal exclusion proceedings.2 However,
the evidence in that case did not show that she was aware of the opportunity
1 See Garcia v. Holder, 732 F.3d 308 (4th Cir. 2013); Barrera-Quintero v. Holder, 699
F.3d 1239 (10th Cir. 2012); Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011);
Ascencio-Rodriguez v. Holder, 595 F.3d 105 (2d Cir. 2010); Mendez-Reyes v. Att’y Gen.
of U.S., 428 F.3d 187 (3d Cir. 2005); Morales-Morales v. Ashcroft, 384 F.3d 418
(7th Cir. 2004); Palomino v. Ashcroft, 354 F.3d 942 (8th Cir. 2004); Mireles-Valdez
v. Ashcroft, 349 F.3d 213 (5th Cir. 2003); Vasquez-Lopez v. Ashcroft, 343 F.3d 961
(9th Cir. 2003) (per curiam). The United States Courts of Appeals for the Sixth and
Eleventh Circuits have yet to rule on this issue in published decisions.
2 Depending on the date and location of the relevant encounter with immigration
officials, an alien may or may not have a right to a hearing before an Immigration Judge
in formal exclusion, deportation, or removal proceedings. Aliens who are subject to
being placed in expedited removal proceedings generally do not have a right to a hearing
before an Immigration Judge. See 8 C.F.R. §§ 235.3(b)(2)(ii), 1235.3(b)(2)(ii) (2015).
The record reflects that the respondent was returned to Mexico in 2001. At that time,
the expedited removal provisions in section 235(b)(1) of the Act, 8 U.S.C. § 1225(b)(1)
(2000), which were enacted in 1996, were being applied to aliens arriving at ports of
entry, but not to those apprehended within the United States. See 8 C.F.R.
§ 235.3(b)(1)(i). Although the DHS had the authority to expand the use of expedited
removal proceedings, it did not exercise that authority until 2004, when it included
certain aliens who are encountered in the 100-mile border zone within 14 days of entry.
See section 235(b)(1)(A)(iii) of the Act; 8 C.F.R. §§ 235.3(b)(1)(ii), 1235.3(b)(1)(ii);
Designating Aliens For Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004)
(providing notice of the DHS’s exercise of its authority). Thus, the respondent was not
subject to expedited removal proceedings and would have had a right to a hearing before
an Immigration Judge.

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for exclusion proceedings; was offered and accepted the opportunity to
withdraw her application for admission; or was otherwise subjected to
another formal, documented process where she was determined to be
inadmissible. Id. at 803, 805, 807. We therefore concluded that her
acquiescence to the immigration officer’s instruction to return to Mexico
did not break her physical presence. Id. at 807.
The salient point to be taken from Avilez is that a voluntary departure
will not break the alien’s continuous physical presence unless there is
evidence that he or she knowingly accepted its terms.3 Id. at 805. An
“acceptance of the terms” of a voluntary departure or return requires
knowledge that the alternative is the initiation of proceedings to remove the
alien from the United States. Id.; see also Matter of Romalez, 23 I&N Dec.
at 429 (finding that an enforced voluntary return breaks continuous physical
presence because “[t]he alien leaves with the knowledge that he does so in
lieu of being placed in proceedings”).
Simply put, there must be evidence that the alien was made aware of the
possibility of appearing at a hearing before an Immigration Judge and
affirmatively agreed to depart in lieu of being subjected to removal
proceedings.4 See Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908 (8th Cir.
2005) (stating that “before it may be found that a presence-breaking
voluntary departure occurred, the record must contain some evidence that
the alien was informed of and accepted its terms”); Morales-Morales
v. Ashcroft, 384 F.3d 418, 427−28 (7th Cir. 2004) (stating that a voluntary
return following an arrest for reentry without inspection will not break
continuous physical presence where the record lacks evidence of any threat
that the alternative was a hearing in removal proceedings).
In case law addressing the presence-breaking character of a voluntary
departure or return, the Board and the courts have considered whether the
evidence shows a process of sufficient formality that the alien was made
aware of the choice between returning voluntarily or being subjected to
more formal procedures to expel him or her from the United States.
See, e.g., Reyes-Sanchez v. Holder, 646 F.3d 493, 498 (7th Cir. 2011)
(stating that in determining whether continuous physical presence is broken
by a voluntary return, the court examines whether the alien “faced a formal,
3 This is true regardless of whether it is referred to as a “departure,” “return,” “turn
back,” or “turnaround.”
4 The alternative option to have a hearing before an Immigration Judge is variously
described in case law as an “opportunity” or a “threat.” See, e.g., Matter of Avilez,
23 I&N Dec. at 805. Which term is more accurate from a particular alien’s perspective
depends on whether the likely result of such a hearing would be the entry of a removal
order if the alien does not have a colorable defense to the charge or a realistic possibility
of obtaining relief.

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671
documented process at the border, and chose to depart under threat of
removal”). In Avilez, we included fingerprints and photographs as
examples of evidence that might be associated with a “formal, documented
process.” Matter of Avilez, 23 I&N Dec. at 805−06. Also included as
possible evidence of a legally enforced refusal of admission and return were
a Form I-213, a Notice of Action-Voluntary Departure (Form I-210),
IDENT documents, statements or testimony from the alien or immigration
officials, and other appropriate immigration forms or official records. Id. at
806. However, since none of that evidence was present in Avilez, we did
not reach the question whether the listed evidence might individually, or in
any specific combination, suffice to establish a presence-breaking
departure.
The evidence required to show a process of sufficient formality to break
continuous physical presence will depend on the circumstances of each
case. It has been determined that “merely fingerprinting or photographing
the alien would not constitute sufficient formality to break his continuous
physical presence.” Valadez-Munoz v. Holder, 623 F.3d 1304, 1311
(9th Cir. 2010) (citing Tapia v. Gonzales, 430 F.3d 997, 1003 (9th Cir.
2005)). We agree that evidence that an alien was fingerprinted and/or
photographed before being allowed to voluntarily depart is not enough, in
itself, to show a process of sufficient formality to break continuous physical
presence. See Garcia v. Holder, 732 F.3d 308, 312−13 (4th Cir. 2013)
(finding that the alien’s presence was broken where his encounter was not
only documented with a form indicating that he had been fingerprinted and
photographed, but the formality of the process was also established by his
own testimony that he was informed of his inadmissibility and was given
a choice between returning to Mexico or having a hearing before an
Immigration Judge).
Most of the circuit courts that have addressed this question have looked
to whether there is evidence that the alien was advised of and waived
the right to have a hearing before an Immigration Judge. See, e.g.,
Rosario-Mijangos v. Holder, 717 F.3d 269, 279−80 (2d Cir. 2013) (finding
that the alien’s continuous physical presence was terminated where he was
informed of his right to appear before an Immigration Judge and chose to
return to Mexico voluntarily in lieu of being placed in proceedings);
Reyes-Sanchez v. Holder, 646 F.3d at 497−99 (finding a break in the alien’s
continuous physical presence where she received a form notifying her of
her right to request a hearing before an Immigration Judge). Consistent
with this jurisprudence, we conclude that where an alien has a right to
a hearing before an Immigration Judge, there must be reliable testimonial
and/or documentary evidence in the record to establish that the alien was
informed of that right and waived it before a voluntary departure will be

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considered a sufficiently formal process to break his or her physical
presence.
As time continues to pass since the 1996 enactment of section
235(b)(1)(A)(iii) of the Act and the 2004 expansion of the DHS’s expedited
removal authority, cases will, with increasing frequency, involve departures
by aliens who would otherwise be subject to expedited removal
proceedings, in which there is generally no right to a hearing before an
Immigration Judge. See supra note 2. We therefore emphasize that in
cases where the presence-breaking character of a voluntary departure is at
issue, Immigration Judges and the parties should ensure that the record is
fully developed regarding (1) the date and place of the encounter
underlying the purported presence-breaking departure; (2) the possibility
that the alien was alternatively subject to exclusion, deportation, or removal
proceedings in which there was a right to a hearing before an Immigration
Judge; and (3) the formality of the process used, including how the threat of
proceedings was communicated to the alien, what advisals were given, and
whether the alien had knowledge that the agreement to depart was in lieu of
being placed in proceedings.5
The record in this case lacks sufficient evidence to show that the
respondent was informed that he had a right to a hearing before an
Immigration Judge and understood that his departure was in lieu of being
placed in removal proceedings.6 The fact that he was fingerprinted and
photographed is not alone enough to show a sufficiently formal process to
interrupt his physical presence. The only Form I-213 in the record relates
to the May 2009 encounter that triggered the initiation of these proceedings,
rather than his January 2001 departure. Moreover, its contents offer no
5 In many cases, the relevant events will have occurred in the distant past, and the alien
may be able to offer only general testimony describing an imperfect recollection of what
transpired during the encounter. Although the alien ultimately bears the burden of
proving the required continuous physical presence, the DHS is in a better position to fill
gaps in the evidence and resolve any disputes by presenting documentation in its own
records to show the formality of the process. In Matter of Avilez, 23 I&N Dec. at 806, we
suggested several forms that could be used to provide such evidence. The Notice of
Rights and Request for Disposition (Form I-826) is another possibility. Unless the
regulations expressly require the DHS to use a specific form, no particular one is
mandated. We recognize in this regard that the DHS frequently modifies its forms
and that various districts use forms specific to their jurisdiction to document encounters
and departures.
6 We note that a document bearing the respondent’s photograph indicates that his
January 2001 apprehension occurred in Pine Valley, California. However, based on the
undisputed facts in this case, we find that he is not a member of the class that will benefit
from the class action settlement agreement approved in Lopez-Venegas v. Johnson, No.
CV 13-03972-JAK (PLAx) (C.D. Cal. Mar. 11, 2015).

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insight into the formality of the process used when the respondent made
that departure. The only document submitted by the DHS that was created
contemporaneously with the respondent’s voluntary return is captioned
“EARM Encounter Details.” That document bears the respondent’s
photograph, but it was not signed and did not inform him of the alternative
of removal proceedings, including his right to a hearing before an
Immigration Judge.
Under these circumstances, we conclude that the evidence does not
show a process of sufficient formality to break the respondent’s continuous
physical presence. Accordingly, the respondent’s appeal will be sustained.
Since the Immigration Judge did not make findings of fact or conclusions
of law regarding the respondent’s eligibility for cancellation of removal, the
record will be remanded to allow him to apply for that relief and any other
for which he may be eligible.
IV. CONCLUSION
We clarify Matter of Avilez and hold that where an alien had the right to
appear before an Immigration Judge, evidence that photographs and
fingerprints were taken in conjunction with a voluntary departure or return
is insufficient to break the alien’s continuous physical presence in the
absence of evidence that he or she was informed of and waived the right to
a hearing.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and
entry of a new decision.