On October 28, 2015, the Board of Immigration Appeals (BIA or Board) sustained the appeal of an Immigration Court removal order. The Immigration Judge (IJ) had pretermitted the applicant’s request for cancellation of removal under INA § 240A(b)(1)(A), finding his required continuous physical presence was terminated by his voluntary return to Mexico, nine years after his initial entry into the United States. During that interaction with the Border Patrol, the respondent was fingerprinted, photographed and signed the screen of a small electronic device. However, he argued on appeal that the evidence of record failed to prove that his voluntary return constituted a formal, documented process sufficient to break his continuous physical presence. The BIA, turning to its prior precedent decision in Matter of Avilez, 23 I.&N. Dec. 799 (BIA 2005), found that the “salient point” of such situations is that a voluntary return will not break a respondent’s continuous physical presence unless he or she knowingly accepts its terms, requiring an understanding that the alternative is the initiation of removal proceedings in the U.S. The BIA thus held that where an applicant has a right to a hearing before an IJ, there must be reliable testimonial and/or documentary evidence in the record proving that he or she was informed of that right and waived it before a voluntary return will be considered a sufficiently formal process to terminate physical presence. The Board also held that evidence that photographs and fingerprints were taken in conjunction with the voluntary return is insufficient, in and of itself, to break continuous physical presence in the absence of evidence that the applicant was informed and waived the right to a hearing. Matter of Castrejon-Colino, 26 I.&N. Dec. 667 (BIA 2015).
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