On October 28, 2015, the Board of Immigration Appeals (BIA or Board), in a companion case to Matter of Castrejon-Colino, 26 I.&N. Dec 667 (BIA 2015), held again that evidence showing that a respondent was voluntarily returned to Mexico after being photographed and possibly fingerprinted, but that failed to indicate he was advised of his right to appear before an Immigration Judge (IJ), is insufficient to constitute a formal, documented process breaking continuous physical presence for purposes of cancellation of removal. Once more relying on and further clarifying its ruling in Matter of Avilez, 23 I.&N. Dec 799 (BIA 2005), the BIA found that where one was not subject to an expedited removal order nor offered the opportunity to withdraw an application for admission, the “relevant question” becomes whether he or she was subjected to any other formal, documented process which produced a funding of inadmissibility. Citing to Castrejon-Colino’s holding that while the taking of photographs and fingerprints in conjunction with a voluntary return may be part of a formal, documented process, such actions are insufficient to meet the Matter of Avilez requirements without further evidence they were associated with a legally enforced refusal of admission and return, the Board held that where a respondent had a right to appear before an IJ, evidence of photographs and fingerprints taken in conjunction with a voluntary return is insufficient to break one’s continuous physical presence in the absence of evidence that he or she was informed of and waived that right to a hearing, regardless of whether the encounter occurred at or near the border. Matter of Garcia-Ramirez, 26 I.&N. Dec. 674 (BIA 2015).
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