FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE VALADEZ-MUNOZ,
Petitioner, No. 06-72510
v.
D.C. No.
A075-219-367
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 5, 2010—San Francisco, California
Filed October 28, 2010
Before: Ferdinand F. Fernandez and Barry G. Silverman,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.
Opinion by Judge Fernandez
*The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
17923
17926 VALADEZ-MUNOZ v. HOLDER
COUNSEL
Orit Levit, Korenberg & Abramowitz, Sherman Oaks, Cali-
fornia; John M. Levant, ASK Law Group, Los Angeles, Cali-
fornia, for the petitioner.
Liza Murcia, United States Department of Justice, Civil Divi-
sion, Washington, D.C., for the respondent.
OPINION
FERNANDEZ, Circuit Judge:
Jose Valadez-Munoz, a native and citizen of Mexico, peti-
tions for review of the Board of Immigration Appeals’ (BIA)
dismissal of his appeal from the Immigration Judge’s (IJ)
order of removal. Specifically, he asserts that the BIA erred
when it determined that he was removable because he had
made a false claim of United States citizenship,1 and because
1
See 8 U.S.C. § 1182(a)(6)(A)(i), (a)(6)(C)(ii).
VALADEZ-MUNOZ v. HOLDER 17927
he was not entitled to cancellation of removal due to a break
in his continuous physical presence in the United States.2 We
deny the petition.
BACKGROUND
Valadez first entered the United States without inspection
in December of 1987 at the age of sixteen, and resided in the
United States thereafter, although he visited his family in
Mexico for about four months in 1988, three weeks in 1992,
and a month in 1994. In 1994, his brother gave him a State
of Texas birth certificate for Robert Louis Moreno. Valadez
used that birth certificate to obtain a California driver license
in the name of Robert Moreno so that he could more easily
obtain and maintain employment.
In January of 1997, Valadez again left the country for Mex-
ico; he traveled by airplane to Mexico so that his then fiancée
could meet his family. Following his return flight to the Hous-
ton, Texas airport on February 15, 1997, he attempted to use
the false Texas birth certificate and the driver license to reen-
ter the United States under the name of Robert Moreno. He
was asked a few questions by the primary immigration
inspector, who, unsatisfied with the responses, sent him to a
secondary inspection officer for intensified inspection.
The secondary inspector asked Valadez questions about his
family based on the birth certificate. After Valadez gave con-
tradictory answers, the inspector left to gather more informa-
tion about Robert Moreno. When the inspector returned,
Valadez continued to assert that he was Robert Moreno. It
was not until the secondary inspector confronted Valadez with
biographical information about the real Robert Moreno
(height, weight, presence of tattoos), which was inconsistent
with Valadez’s appearance, that he confessed his true identity.
The officer found that he was an excludable alien and gave
2
See 8 U.S.C. § 1229b(b)(1)(A).
17928 VALADEZ-MUNOZ v. HOLDER
him the option of either seeing an IJ or withdrawing his appli-
cation for admission and voluntarily returning to Mexico.
Valadez chose the latter option and signed a document which
stated, among other things, “[a]lthough I understand I may
choose to appear before an immigration judge for a hearing in
exclusion proceedings, I request that I be permitted to with-
draw my application for admission and return abroad.” That
request was granted, and he returned to Mexico that same day,
but a few days later he reentered the United States without
inspection.
Valadez married his current wife, a United States citizen,
on July 27, 1998. The couple’s first child, a United States citi-
zen, was born on September 29, 1999. Their second child,
also a United States citizen, was born on February 26, 2004.
Valadez applied for adjustment of status in December of
2001, but his application was denied on November 19, 2002,
on the basis that he was ineligible due to his false claim of
United States citizenship. See 8 U.S.C. § 1255(a).
On February 4, 2003, removal proceedings were initiated
against Valadez. The notice to appear charged that he was
subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i) as an
alien present in the United States without being admitted, and
under § 1182(a)(6)(C)(ii) as an alien who has falsely repre-
sented himself to be a United States citizen. Following a hear-
ing on August 23, 2004, in which Valadez testified regarding
the alleged 1997 false claim to citizenship incident, the IJ
found that he was removable under § 1182(a)(6)(C)(ii). The
IJ found that Valadez had made a false claim of citizenship
in 1997 when attempting to gain entry, and that he did not
timely retract that false claim.
In November of 2004, Valadez submitted an application for
cancellation of removal based upon hardship to his wife and
children. At the hearing on February 11, 2005, the Depart-
ment of Homeland Security argued that Valadez was ineligi-
ble for cancellation of removal because his withdrawal of his
VALADEZ-MUNOZ v. HOLDER 17929
application for admission at the Houston Airport and subse-
quent immediate voluntary return to Mexico interrupted his
continuous physical presence in the United States, as a result
of which he had not been here for ten years “immediately pre-
ceding the date of” his application for cancellation of
removal. See 8 U.S.C. § 1229b(b)(1)(A). Following the hear-
ing, the IJ determined that “the February 1997 rejection of his
application for admission, followed by his immediate depar-
ture from the United States while under custodial control, dis-
rupted the continuity of [his] required 10 years of domicile in
the United States.” As a result, the IJ denied the application
for cancellation of removal.
The BIA dismissed Valadez’s appeal. In so doing, it inde-
pendently reviewed the IJ’s findings and agreed that Valadez
was not entitled to adjustment of status. See 8 U.S.C.
§ 1255(a). It held that Valadez’s presentation of a Texas birth
certificate to immigration officers constituted a false claim of
United States citizenship. It also held that Valadez did not
timely retract his claim of citizenship because he failed to cor-
rect his misrepresentation prior to its exposure as a falsity. It
finally held that his withdrawal of his application for admis-
sion and return to Mexico broke his physical presence in the
United States. That precluded him from obtaining cancellation
of removal relief. Valadez timely petitioned this court for
review.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction to entertain Valadez’s petition for
review. See 8 U.S.C. § 1252.
“When, as here, the BIA conducts an independent review
of the IJ’s findings, this court reviews the BIA’s decision and
not that of the IJ.” Poblete Mendoza v. Holder, 606 F.3d
1137, 1140 (9th Cir. 2010). We review findings of fact for
substantial evidence. See Blanco v. Mukasey, 518 F.3d 714,
718 (9th Cir. 2008); see also INS v. Elias-Zacarias, 502 U.S.
17930 VALADEZ-MUNOZ v. HOLDER
478, 481 & n.1, 483-84, 112 S. Ct. 812, 815 & n.1, 817, 117
L. Ed. 2d 38 (1992). We apply “the principles of deference
described in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 81
L. Ed. 2d 694 (1984)” when we confront “questions implicat-
ing ‘[the BIA’s] construction of the statute which it adminis-
ters.’ ” INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S. Ct.
1439, 1445, 143 L. Ed. 2d 590 (1999).
DISCUSSION
Valadez complains of the BIA’s determination that he was
not eligible for adjustment of status, and that he was not eligi-
ble for cancellation of removal. We will consider each of
those complaints in turn.
A. Adjustment of Status; False Claim of Citizenship
The parties do not dispute that Valadez cannot obtain
adjustment of status if he is inadmissible. See 8 U.S.C.
§ 1255(a). As we will explain, because of his actions at the
border on February 15, 1997, when he applied to reenter, he
is inadmissible.
There can be no doubt that an alien “who falsely represents,
or has falsely represented, himself or herself to be a citizen of
the United States for any purpose or benefit under this chapter
. . . or any other Federal or State law is inadmissible.” 8
U.S.C. § 1182(a)(6)(C)(ii)(I). Moreover, an alien has the
“burden of establishing . . . clearly and beyond doubt” that he
is “entitled to be admitted and is not inadmissible under sec-
tion 1182.” 8 U.S.C. § 1229a(c)(2)(A); see also Pichardo v.
INS, 216 F.3d 1198, 1200 (9th Cir. 2000) (same). Beyond
that, “a decision that an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to
law.” 8 U.S.C. § 1252(b)(4)(C); Pichardo, 216 F.3d at 1200
(same).
VALADEZ-MUNOZ v. HOLDER 17931
(1) The Citizenship Claim
[1] There is no dispute that when Valadez tried to enter the
country with his fiancé, he knew that he was not legally enti-
tled to do so, but presented Robert Moreno’s birth certificate
so that he could enter without difficulty. Of course, he had
previously assumed Moreno’s identity in order to obtain a
driver license and, thus, obtain work in the United States. He
saw use of the birth certificate as a means of obtaining entry
into the United States when he had no other means available.
The evidence of his claim of citizenship is not quite as strong
as it would have been if Valadez had actually signed a state-
ment admitting that he had falsely claimed citizenship,3 or
pled guilty to the crime of so doing.4 Nevertheless, it cannot
be said that the BIA’s determination that Valadez intended to
and did make a false claim of United States citizenship at that
time was so unfounded that no “reasonable factfinder” could
so determine. Elias-Zacarias, 502 U.S. at 481, 112 S. Ct. at
815. Indeed, in this civil proceeding we are almost asked to
take a flight of fancy when we are asked to believe that
Valadez was not asserting citizenship at that time.5 We are not
that gormless about life in the real world. That would seem to
be an end to Valadez’s claim, but, he correctly asserts, we
have taken a somewhat different approach in a series of cases
dealing with prosecutions6 for violating a criminal statute.7
3
See Blanco, 518 F.3d at 720-21.
4
See Pichardo, 216 F.3d at 1201.
5
This seemed so obvious to the BIA that it somewhat overstated the
matter by saying that “individuals who are born within the United States
are automatically considered United States citizens.” Certainly the vast
majority are, but there are also a few exceptions.
6
See United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004); United
States v. Garcia, 739 F.2d 440 (9th Cir. 1984); Smiley v. United States,
181 F.2d 505 (9th Cir. 1950).
7
See 18 U.S.C. § 911 (it is a crime for a person to “falsely and willfully
represent[ ] himself to be a citizen of the United States”). It should be
noted that the criminal statute requires the representation to be both false
and willful, while the statute we are dealing with only requires falsity.
17932 VALADEZ-MUNOZ v. HOLDER
The cases upon which Valadez relies are largely distin-
guishable on their facts. In Karaouni, 379 F.3d at 1141, 1143,
for example, the actual defect was that Karaouni only stated
that he was a “ ‘citizen or national of the United States,’ ”
and, therefore, did not state that he was a citizen. And in Smi-
ley, 181 F.2d at 506, the defendant once stated that he was a
“citizen,” but did not say of which country. We found that to
be insufficient. Another time, Smiley told a police officer that
he was born in New York, but in circumstances where citizen-
ship may well have been the farthest thing from his mind. Id.
That, too, was insufficient. On the other hand, Garcia, 739
F.2d at 443, applied Smiley in quite different circumstances
— a statement in this country to a border patrol agent. That
case would have more force in our consideration of this case
were Garcia not a criminal prosecution. That, however, leads
to the most salient and determinative distinguishing mark.
[2] The strongest riposte to Valadez’s thrust is the very
fact that the cases cited were criminal prosecutions where the
defendant had to be found guilty beyond a reasonable doubt
and we, therefore, were very concerned about the quality of
the evidence.8 Here, on the other hand, the burden of persua-
sion is reversed for, again, the alien has the burden of proving
that he is not inadmissible “clearly and beyond doubt.” 8
U.S.C. § 1229a(c)(2)(A). That makes all the difference in the
world. Valadez was required to clearly show that he was not
inadmissible, and he did not offset the strong inference that
his activities at the border constituted a claim of United States
citizenship.
[3] In fine, the BIA did not improperly determine that
8
Even so, when an alien has actually asserted to a government immigra-
tion agent that he was born in this country, one would think that an infer-
ence of a citizenship claim would be permissible, depending upon the
other facts in the case. See United States v. Nevils, 598 F.3d 1158, 1163-65
(9th Cir. 2010) (en banc) (clarifying the burden faced by the prosecution
in a criminal case).
VALADEZ-MUNOZ v. HOLDER 17933
Valadez had “falsely represented himself . . . to be a citizen
of the United States.” Id. § 1182(a)(6)(C)(ii)(I).
(2) Recantation
Valadez next asserts that if he did initially make a false
claim, he retracted it and, therefore, should not have been
found inadmissible. We disagree.
[4] The doctrine of timely recantation is of long standing
and ameliorates what would otherwise be an unduly harsh
result for some individuals, who, despite a momentary lapse,
simply have humanity’s usual failings, but are being truthful
for all practical purposes. See Llanos-Senarillos v. United
States, 177 F.2d 164, 165-66 (9th Cir. 1949). The BIA has
recognized the virtue of applying that principle when an alien
“voluntarily and prior to any exposure of the attempted fraud
corrected his testimony that he was an alien lawfully residing
in the United States.” Matter of M— , 9 I. & N. Dec. 118, 119
(BIA 1960); see also Matter of R— R— , 3 I. & N. Dec. 823,
827 (BIA 1949).
[5] Valadez’s attempt to wrap himself in that cloak of
goodness fails because he overlooks the important limitation
on the principle. As we have pointed out, when a person sup-
posedly recants only when confronted with evidence of his
prevarication, the amelioration is not available. See Llanos-
Senarillos, 177 F.2d at 165-66. Not surprisingly, the BIA has
taken the same position for immigration cases; it has pointed
out, “recantation must be voluntary and without delay.” Mat-
ter of Namio, 14 I. & N. Dec. 412, 414 (BIA 1973). And,
when the so-called retraction “was not made until it appeared
that the disclosure of the falsity of the statements was immi-
nent [, it] is evident that the recantation was neither voluntary
nor timely.” Id.
[6] Here Valadez did not recant until he knew that his false
representations would not succeed in getting him admitted
17934 VALADEZ-MUNOZ v. HOLDER
into the country.9 It is pellucid that the BIA did not err when
it determined that Valadez could not take advantage of the
timely recantation doctrine.
B. Cancellation of Removal
Valadez asserts that because he made his illegal entry into
the United States in December 1987, and has left for short
periods only, he was “present in the United States for a con-
tinuous period of not less than 10 years immediately preced-
ing” his application for cancellation of removal relief. 8
U.S.C. § 1229b(b)(1)(A); see also Gutierrez v. Mukasey, 521
F.3d 1114, 1116-17 (9th Cir. 2008) (same). Of course, the
period was interrupted when he was placed in removal pro-
ceedings in February of 1993. See Juarez-Ramos v. Gonzales,
485 F.3d 509, 510 (9th Cir. 2007). He is correct that not every
brief departure will interrupt the period of continuous physical
presence. See 8 U.S.C. § 1229b(d)(2); Landin-Zavala v. Gon-
zales, 488 F.3d 1150, 1152 (9th Cir. 2007). However, some
absences will interrupt the alien’s physical presence, even if
those absences are brief. See Tapia v. Gonzales, 430 F.3d 997,
998 (9th Cir. 2005).
The BIA has held that when an alien applies for entrance
to this country and that is denied at the point of entry, the rule
is:
[A]n immigration official’s refusal to admit an alien
9
The following exchange occurred when the IJ was questioning
Valadez:
Q. All right, so you had made an effort to try to be convincing
that you were Robert Moreno. You had two different people that
questioned you and it was only after they had persuaded you that
they could prove you were not Robert Moreno that you finally
said all right I confess. I’m Jose Valadez-Munoz, is that what
happened?
A. Correct.
VALADEZ-MUNOZ v. HOLDER 17935
at a land border port of entry will not constitute a
break in the alien’s continuous physical presence,
unless there is evidence that the alien was formally
excluded or made subject to an order of expedited
removal, was offered and accepted the opportunity to
withdraw his or her application for admission, or
was subjected to any other formal, documented pro-
cess pursuant to which the alien was determined to
be inadmissible to the United States.
In re Avilez-Nava, 23 I. & N. Dec. 799, 805-06 (BIA 2005)
(en banc). Valadez was turned away at a border port of entry,
but he argues that the cases provide for considerably broader
protection than that set forth by the BIA. He essentially
asserts that continuous physical presence may be broken if an
alien is caught within the country and voluntarily departs in
lieu of proceedings pursuant to a formal agreement, but it is
not broken if, as in this case, he is stopped at the border and
ultimately turned away. However, his formulation is far too
simplistic because the mere occurrence of a border stop is
insufficient to answer the continuous physical presence issue.
As explained in further detail below, what the BIA and this
court have actually held is that a knowing and voluntary
departure in lieu of more formal proceedings will interrupt
continuous physical presence.
[7] On the one hand, the BIA has declared that when “[t]he
alien leaves with the knowledge that he does so in lieu of
being placed in proceedings,” he can have “no legitimate
expectation” that he “could illegally reenter and resume a
period of continuous physical presence.” In re Romalez-
Alcaide, 23 I. & N. Dec. 423, 429 (BIA 2002) (en banc). We
have declared that to be a reasonable approach, and have
agreed that physical presence is broken when an alien is found
within the country, requests administrative voluntary depar-
ture, and is escorted to the border. See Vasquez-Lopez v. Ash-
croft, 343 F.3d 961, 969, 973-74 (9th Cir. 2003) (per curiam);
see also Gutierrez, 521 F.3d at 1118 (holding that where alien
17936 VALADEZ-MUNOZ v. HOLDER
was caught within the country and voluntary left in lieu of
facing removal proceedings, the period of physical presence
was broken). As the Third Circuit Court of Appeals has held,
the mere fact that the departure occurred when a person was
stopped at the border while attempting reentry does not
change the alchemy. Mendez-Reyes v. Attorney Gen. of the
U.S., 428 F.3d 187, 193 (3d Cir. 2005) (holding that when an
alien withdrew his application for admission in lieu of formal
determination of admissibility and departed, and signed a doc-
ument to that effect, his period of physical presence termi-
nated). Of course, as we have noted above, the BIA has taken
the same position. See Avilez-Nava, 23 I. & N. Dec. at
805-06.
[8] On the other hand, all agree that continuous physical
presence is not interrupted if a person is merely stopped at the
border and turned away without any more formality. Thus, in
Avilez-Nava, 23 I. & N. Dec. at 800, an alien presented herself
at the border without entry documents, “was taken to a room
where a man explained that she could not enter” and was then
“escorted to a door ‘back across the border’ ” without further
ado. That, said the BIA, did not interrupt her continuous phys-
ical presence. Id. at 807. We have also concluded that where
a person is merely “stopped, turned around, and sent back to
Mexico,” that will not suffice to break his continuous physical
presence. Tapia, 430 F.3d at 999, 1004. We also added that
merely fingerprinting or photographing the alien would not
constitute sufficient formality to break his continuous physi-
cal presence. Id. at 1003; see also Juarez-Ramos, 485 F.3d at
510-11 (same). The BIA agrees that some formality is
required. See Avilez-Nava, 23 I. & N. Dec. at 807. We have
further, and logically, held that continuous physical presence
would not be interrupted, despite a formal agreement to depart
voluntarily, where misrepresentations might have been made
to the alien and he, at the very least, might not have known
what he was signing. See Ibarra-Flores v. Gonzales, 439 F.3d
614, 619 (9th Cir. 2006). In that instance, it could not be said
that he did “knowingly and voluntarily accept administrative
VALADEZ-MUNOZ v. HOLDER 17937
voluntary departure.” Id. at 620. In other words, nothing was
legally added to a simple turn around. Nevertheless, it is
important to note that we did not declare that the use of proce-
dures at the border where a person departs in lieu of more
extended proceedings were not sufficient to break his period
of physical presence.
Therefore, it cannot be said that the BIA’s decision in
Avilez-Nava set forth a construction of the law of continuous
physical presence that can be dubbed an impermissible con-
struction of a statute which it administers. See Aguirre-
Aguirre, 526 U.S. at 424-25, 119 S. Ct. at 1445-46. The only
question that remains is whether the facts of this case demon-
strate that the BIA erred here. They do not.
[9] The procedure used in this case may not have been as
formal as an actual completed proceeding that results in an
exclusion order10 or in an expedited removal order,11 but it
was formal nonetheless. There can be no doubt that Valadez
could have been placed in removal proceedings, as he was
told, and that he avoided that by requesting the withdrawal of
his application for admission, a request which did not have to
be granted. See 8 U.S.C. § 1225(a)(4); 8 C.F.R. §§ 235.4,
1235.4.
That Valadez was given the option and exercised it in writ-
ing cannot be doubted. He signed a document in which he
expressly agreed that he understood that he could “choose to
appear before an Immigration Judge for a hearing in exclusion
proceedings,” but requested that he “be permitted to withdraw
[his] application for admission and return abroad.” He was
permitted to do just that. Moreover, he presented no evidence
that he was confused about his choices or did not understand
them. On the contrary, he testified that the officer gave him
“an option if [he] wanted to see a Judge or if [he] wanted to
10
See Landin-Zavala, 488 F.3d at 1153.
11
See Juarez-Ramos, 485 F.3d at 511.
17938 VALADEZ-MUNOZ v. HOLDER
departure [sic] voluntarily to Mexico.” Valadez then testified
that he said “[O]kay, can I just go back to Mexico?”
[10] That is, substantial evidence supported the determina-
tion that Valadez “was offered and accepted the opportunity
to withdraw his . . . application for admission” and departed
voluntarily. Avilez-Nava, 23 I. & N. Dec. at 805. His continu-
ous physical presence was interrupted.
CONCLUSION
After presiding over all of the proceedings involved here,
the IJ felt certain that Valadez is a good man, but that he had
fallen from grace on the day in question and was not entitled
to relief. We cannot disagree with any of those assessments.
While it may seem somewhat rhadamanthine, because on
February 15, 1997, Valadez did make a false claim of United
States citizenship, he is inadmissible12 and cannot obtain
adjustment of status;13 and because his continuous physical
presence was broken on that same date, he is not eligible for
cancellation of removal either.14
Petition DENIED.
12
8 U.S.C. § 1182(a)(6)(C)(ii).
13
8 U.S.C. § 1255(a).
14
8 U.S.C. § 1229b(b)(1)(A).