BIA HOLDS THAT DEPARTURES FROM THE U.S. FOLLOWING CONVICTIONS FOR ILLEGAL ENTRY UNDER INA § 275(a)(1) INTERRUPT ONE’S CONTINUOUS PHYSICAL PRESENCE BECAUSE THEY WERE PURSUANT TO A FORMAL, DOCUMENTED PROCESS WHICH ESTABLISHED THE RESPONDENT’S INADMISSABILITY.

On December 10, 2014, the Board of Immigration Appeals (BIA) upheld an Immigration Judge’s (IJ) determination that departures from the U.S. following INA § 275(a)(1) convictions were pursuant to a sufficiently formal, documented process to interrupt continuous physical presence, relying on Ascencio-Rodriguez v. Holder, 595 F. 3d 105 (2d Cir. 2010). The BIA held that such a break interrupts the 10-year period of continuous physical presence required by INA § 240A(b)(1)(A) and thus renders one ineligible for cancellation of removal. The Board went on to note that not only absences in excess of 90 days or exceeding 180 days in the aggregate constitute a break in continuous physical presence; physical presence is also deemed to end when one departs in lieu of formal removal proceedings, is refused admission at the border, is formally excluded, made subject to an expedited removal order, accepts an offer to withdraw an application for admission, or is subjected to any other formal, documented process which establishes a inadmissibility.