In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2122
M ARGARITA R EYES-SANCHEZ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
A RGUED D ECEMBER 1, 2010—D ECIDED JULY 14, 2011
Before B AUER, P OSNER, Circuit Judges, and P ALLMEYER,
District Judge.
P ALLMEYER, District Judge. Margarita Reyes-Sanchez,
a citizen and native of Mexico, entered the United States
illegally in 1987 and remained until returning briefly
The Honorable Rebecca R. Pallmeyer of the Northern
District of Illinois, sitting by designation.
2 No. 10-2122
to Mexico in August 2001. The Border Patrol appre-
hended Reyes-Sanchez in August 2001 near El Paso as
she attempted to re-enter the United States. In custody,
Reyes-Sanchez completed a Form I-826 “Notice of Rights
and Request for Disposition” in which she admitted
her illegal presence in the United States, waived a
hearing, and agreed to return to Mexico. In May 2003,
Ms. Reyes-Sanchez was apprehended in an unrelated
Immigrations and Customs Enforcement raid. She ap-
plied for cancellation of removal, but the Immigration
Judge (“IJ”) found her ineligible on the basis that her agree-
ment, in August 2001, to return to Mexico constituted a
break in her continuous physical presence in the United
States. The Bureau of Immigration Appeals (“BIA”)
affirmed the IJ’s decision. We conclude that Reyes-
Sanchez’s apprehension at the border in 2001 and subse-
quent decision to admit illegal presence and return
to Mexico had the effect of a break in her continuous
physical presence within the United States. We therefore
affirm the decision of the BIA and IJ.
I.
Margarita Reyes-Sanchez first entered the United States
in 1987. She was married here the following year and
raised three children in this country. She returned briefly
to Mexico in August 2001, and re-entered the United
States near El Paso, Texas, on August 19, 2001, with-
out being admitted or paroled. The Border Patrol appre-
hended Reyes-Sanchez on that date, and gave her a Form
I-826 (in Spanish) titled “Notice of Rights and Request
No. 10-2122 3
for Disposition.” The form offered three options for Reyes-
Sanchez to choose from: she could request a hearing
before the immigration court to determine whether
she could stay in the United States; she could request an
asylum hearing; or she could acknowledge her unlawful
presence with this language:
I admit that I am in the United States illegally, and
I believe I do not face harm if I return to my country.
I give up my right to a hearing before the Immigra-
tion Court. I wish to return to my country as soon
as arrangements can be made to effect my departure.
I understand that I may be held in detention until
my departure.
(Appx. 25-26.) Reyes-Sanchez chose the third option and
was returned to Mexico. On May 5, 2003, however, Immi-
grations and Customs Enforcement agents raided Reyes-
Sanchez’s home in search of her nephew, and appre-
hended her as well. Agents matched Reyes-Sanchez
with her immigration history through photographs and
fingerprint records. (Reyes-Sanchez signed the
August 2001 form using the fictitious name Christina
Maldonado-Rodriguez. Neither party disputes that Reyes-
Sanchez was the person who actually signed that form.)
Reyes-Sanchez was issued a Notice to Appear (“NTA”)
on that same day, May 5, 2003, charging her with
removability pursuant to § 212(a)(6)(A)(I) of the Immigra-
tion and Nationality Act as an alien present in the
United States without having been admitted or paroled.
Immigration proceedings were formally commenced
on February 12, 2004, when the NTA was filed in im-
4 No. 10-2122
migration court. Reyes-Sanchez appeared in immigra-
tion court on May 3, 2004, represented by counsel, ad-
mitted the allegations against her, and conceded
removability. Reyes-Sanchez asserted that she would
seek cancellation of removal pursuant to 8 U.S.C.
§ 1229b(d). The court granted Reyes-Sanchez until
January 8, 2005, to file for cancellation of removal, and
continued her removal hearing until February 8, 2005.
Continuous physical presence in the United States for
a period of ten years is a prerequisite to cancellation
of removal. 8 U.S.C. § 1229(b)(1)(A). Reyes-Sanchez
declined to file for cancellation of removal, however,
after the government disclosed that it had written
records (presumably the Form I-826) showing that Reyes-
Sanchez had been apprehended in August 2001 and had
chosen to depart the United States, which constituted a
break in her continuous physical presence under In re:
Romalez, 23 I. & N. Dec. 423 (BIA 2002).
At a hearing on February 8, 2005, Reyes-Sanchez’s
counsel conceded her removability based on a break in
her continuous physical presence. Counsel nevertheless
asked the court to allow Reyes-Sanchez to remain in the
United States until her husband’s legalization petition,
which had been pending for more than a decade, was
decided. Reyes-Sanchez noted that she had been living
in the United States since 1987 and had three teenage
children in the country. The court concluded that
“these arguments, while sympathetic, amount to pros-
ecutorial discretion arguments, something this Court
does not have jurisdiction to decide.” The court granted
Reyes-Sanchez ninety days from the date of its decision
to voluntarily depart, until May 9, 2005.
No. 10-2122 5
Reyes-Sanchez appealed the denial of her request for
a continuance, and cited Ortiz-Cornejo v. Gonzales, 400
F.3d 610 (8th Cir. 2005), which had been decided on
March 11, 2005. In that case, the Eighth Circuit held
that merely being turned back at the border without
any threat of deportation does not constitute a break in
a petitioner’s continuous physical presence for purposes
of cancellation of removal. On May 18, 2006, the Board
of Immigration Appeals remanded Reyes-Sanchez’s
case, because “[w]hile the voluntary return document
appears on its face to satisfy the requirements of Ortiz-
Cornejo v. Gonzales, . . . the parties should have an op-
portunity to present this document to the Immigra-
tion Judge for fact-finding.” In re: Margarita Reyes-
Sanchez, A97-319-901 (BIA May 18, 2006).
In a written opinion dated March 11, 2009, the IJ con-
cluded that Reyes-Sanchez could not satisfy the continu-
ous physical presence requirement for cancellation of
removal because, as shown by the Form I-826 and corrobo-
rating evidence, her voluntary departure from the United
States was indeed a response to a threat of removal. The
IJ once again granted voluntary departure by May 11,
2009. Reyes-Sanchez appealed, and, on April 23, 2010,
the BIA affirmed the IJ’s decision, and ordered immedi-
ate removal because Reyes-Sanchez did not post a
required voluntary departure bond after filing her
notice of appeal. Reyes-Sanchez then appealed to this
court.
6 No. 10-2122
II.
Petitions for review of orders of removal are subject
to review by the courts of appeals in the circuit “in which
the immigration judge completed the proceedings.” 8
U.S.C. § 1252(b)(2). Reyes-Sanchez’s immigration pro-
ceedings were completed in front of the Chicago, Illinois,
immigration court, making this circuit the proper venue
for review. While denials of discretionary relief are not
subject to judicial review, 8 U.S.C. § 1252(a)(2)(B), this
court has previously held that “[t]he meaning of the
term ‘continuous physical presence’ is a non-discre-
tionary question of statutory interpretation. As such, it
falls outside § 1252(a)(2)(B)’s jurisdiction-stripping
rule.” Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th
Cir. 2004).
We review the IJ’s decision as supplemented by the
BIA where, as here, the BIA relied on the IJ’s decision
in rendering its own decision. Oryakhil v. Mukasey, 528
F.3d 992, 998 (7th Cir. 2008). This court must uphold
the decision to deny relief if it is “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Id. (quoting Chatta v.
Mukasey, 523 F.3d 748, 751 (7th Cir. 2008)). “[O]nly if the
record compels a contrary result” will the court overturn
the decision to deny relief. Oryakhil, 528 F.3d at 998 (quot-
ing Mema v. Gonzalez, 474 F.3d 412, 416 (7th Cir. 2007)).
Reyes-Sanchez contends that the BIA and IJ erred in
holding that her apprehension at the border in
August 2001 constituted a break in her continuous
physical presence. The Attorney General may cancel
No. 10-2122 7
removal of an alien who would otherwise be removable,
if, among other requirements, the alien “has been physi-
cally present in the United States for a continuous
period of not less than 10 years immediately preceding
the date of such application.” 8 U.S.C. § 1229b(b)(1)(A).
Though that statute sets out criteria describing when a
“break” occurs sufficient to terminate continuous
physical presence, 8 U.S.C. § 1229b(d)(2), the BIA held
in 2002 that the statutory language does not provide
the “exclusive measure of what constitutes a break in
continuous physical presence.” In re: Romalez, 23 I. & N.
Dec. 423, 424 (BIA 2002). The BIA concluded that “a
departure that is compelled under threat of the institu-
tion of deportation or removal proceedings is a break
in physical presence.” Id. The Romalez decision noted
that in two of the instances in which Romalez had left
the country, he had done so pursuant to an earlier
version of a provision allowing for “voluntary depar-
tures.” Id. at 429. The BIA quoted approvingly Romalez’s
description of a “voluntary departure” as “like a plea
bargain.” Id. The BIA continued:
The alien leaves with the knowledge that he does
so in lieu of being placed in proceedings. The clear
objective of an enforced departure is to remove
an illegal alien from the United States. There is
no legitimate expectation by either of the parties
that an alien could illegally reenter and resume
a period of continuous physical presence.
Id.
8 No. 10-2122
This court examined these same provisions to
determine whether Celia Morales-Morales had broken
continuous physical presence in the United States when,
after returning to Mexico for two weeks to visit her ailing
mother, she was turned back by the Border Patrol four
times within a week, then apprehended on her fifth
attempt and charged with illegal reentry. Morales-Morales,
384 F.3d at 420. The court noted that “no evidence” sup-
ported the notion that Morales’s voluntary departure
had taken place under threat of removal or deportation
proceedings. Id. at 427. Morales testified, the court noted,
that she never appeared before an IJ or in any hearing,
and the Border Patrol “just took me, threw me around,
and turned me back.” Id. The court concluded that
“[w]e simply cannot equate being turned back at the
border with a formal voluntary departure or departure
under an order of removal or deportation.” Id. at 428.
Reyes-Sanchez urges that her own contact at the
border in August 2001 lacked the necessary procedural
safeguards and formalities to put her on notice that
returning to Mexico would end her continuous physical
presence in the United States. (Pet.’s Br. at 12.) At oral
argument, Reyes-Sanchez’s counsel asserted that due to
the “chaotic” situation at the border, Reyes-Sanchez
did not receive adequate information with which to
make an informed decision as to which of the three
options presented by Form I-826 she should pursue.
Indeed, counsel noted, had Reyes-Sanchez submitted to
a hearing, she may well have been eligible for cancella-
tion of removal, as she had been living in the United
States continuously for more than ten years.
No. 10-2122 9
In arguing that she was not adequately informed of the
consequences of her decision to return to Mexico, Reyes-
Sanchez points to 8 C.F.R. § 240.25, governing “voluntary
departures.” The procedural mandates of that regulation
were not present in her case, she contends, and therefore
she could not have been subject to a “voluntary depar-
ture.” She emphasizes that her Form I-826 was signed by
a “service officer” rather than the type of “authorized
officer” specified in § 240.25(a). As we read that provi-
sion, however, it identifies officials who may “exercise”
the voluntary departure procedures, not those who may
sign a form certifying service of a Form I-826. Reyes-
Sanchez points to no authority that supports her argu-
ment that a Form I-826 signed by a “service officer” runs
afoul of § 240.25. Nor, for that matter, does she suggest
that the “service officer” may not also be an “authorized
officer” within the meaning of that regulation. Reyes-
Sanchez also contends that she did not “receive the
benefit of voluntary departure” because the I-826 does not
specify a “period of time permitted for voluntary depar-
ture,” as required by § 240.25(c). The Form I-826 did,
however, specify a time period, albeit in general
terms—“as soon as arrangements can be made”—and
informed her she may be held in custody until that
could occur. These objections are unavailing.
Reyes-Sanchez also contends that because the Form I-
826 she signed noted that “you may request to return to
your country,” it suggested a “voluntary return,” rather
than a “voluntary departure,” which are both, to some
degree, terms of art in the immigration context. Reyes-
Sanchez argues that “while the former carries no legal
10 No. 10-2122
consequence, the [latter] carries substantial legal conse-
quences.” Indeed, the statutory provision explaining
“voluntary departure” provides that “[t]he Attorney
General may permit an alien voluntarily to depart the
United States at the alien’s own expense under this sub-
section, in lieu of being subject to [removal] proceed-
ings.” 8 U.S.C. § 1229c(a)(1). By contrast, Reyes-Sanchez
points to the Customs and Border Patrol website, which,
on a “Frequently Asked Questions” page, explains that:
“Illegal aliens are afforded two essential legal rights:
a voluntary return to their host country or a removal
hearing. The voluntary return allows the non-criminal
illegal alien to return to his/her host country without
being prosecuted.” Frequently Asked Questions, online
a t h t t p : / /w w w .c b p . g o v /x p /c gov /b or d e r _ s e c u r it y /
border_patrol/border_patrol_sectors/sandiego_sector_ca/
sector_ programs/faqs.xml (visited June 15, 2011). Reyes-
Sanchez notes, in addition, that a report from the De-
partment of Homeland Security’s Inspector General
explains that voluntary returns are often effectuated
for juveniles apprehended at the border, rather than
placement in immigration proceedings. A Review of DHS’
Responsibilities for Juvenile Aliens, OIG-05-45 (Sept. 2005),
online at http://www.dhs.gov/xoig/assets/mgmtrpts/
OIG_05-45_Sep05.pdf (visited June 15, 2011). The United
States responds that, in this context, Form I-826’s reference
to “return” rather than “departure” is a “distinction
without a difference.” (Resp.’s Br. at 19.) “It is disingenu-
ous for Petitioner to suggest that Petitioner would have
a different understanding of her options if she had
been offered the opportunity to ‘depart’ rather than ‘re-
turn’ to Mexico.’ ” (Id.)
No. 10-2122 11
The court notes that the examples Reyes-Sanchez
offers to support her definition of “voluntary return” do
not clearly do so. Regardless, whether the word “depart”
or “return” was used on the Form I-826, is not central to
the law as interpreted in Romalez, which has since been
endorsed by every Circuit to consider it. See Asencio-
Rodriguez v. Holder, 595 F.3d 105, 112 (2d Cir. 2010); Mendez-
Reyes v. Attorney-Gen., 428 F.3d 187, 191-92 (3d Cir.
2005); Mirelez-Valdez v. Ashcroft, 349 F.3d 213, 218 (5th
Cir. 2003); Morales-Morales, 384 F.3d at 427; Palomino v.
Ashcroft, 354 F.3d 942, 944 (8th Cir. 2004); Vasquez-Lopez
v. Ashcroft, 343 F.3d 961, 973 (9th Cir. 2003). In deter-
mining whether an encounter at the border is sufficient
to break a petitioner’s continuous physical presence and
render her ineligible for cancellation of removal, the court
must determine whether the petitioner faced a formal,
documented process at the border, and chose to depart
under threat of removal. After the Morales-Morales and
Ortiz-Cornejo decisions, the BIA elaborated on the cir-
cumstances that distinguish the type of informal
encounter that does not create a break in continuous
physical presence from the type of formal encounter that
does. In In re: Avilez-Nava, 23 I. & N. Dec. 799 (BIA 2005),
the BIA considered the case of a woman who had
returned to Mexico for two weeks to be with her mother
after her grandmother died. Id. at 800. The woman, Avilez-
Nava, was stopped at the border near San Ysidro when
she attempted to cross. Id. She admitted she did not
have any documents, was told by immigration officials
she could not enter the country, and was escorted to a
door through which she returned to Mexico. Id. The BIA
12 No. 10-2122
held that border officials’ mere refusal to admit an alien
does 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 for-
mal, documented process pursuant to which the
alien was determined to be inadmissible to the
United States.
Id. at 805-06. The BIA went on to explain that evidence
of such a formal process “may include testimony or
documentary evidence of a legally enforced refusal of
admission and return such as a Record of Deportable/
Inadmissible Alien (Form I-213), a Notice of Ac-
tion—Voluntary Departure (Form I-210), an IDENT
printout, affidavits or statements of the alien or immigra-
tion officials, photographs, fingerprints, or other appro-
priate forms and official records of the DHS.” Id.
The question here, therefore, is whether Reyes-Sanchez
was subject to the type of “formal, documented process
pursuant to which the alien was determined to be inad-
missible to the United States” that the BIA, this court, and
other courts have held sufficient to constitute a break in
continuous physical presence. The IJ, following this
precedent, concluded that Reyes-Sanchez’s contact at
the border did constitute a break because she voluntarily
departed under threat of removal, as evidenced by “the
Form I-826, the IDENT printout, the I-213, her finger-
No. 10-2122 13
print record, and the letter from Supervisory Border
Patrol Agent Garcia.” (Appx. at 11.) In addition, the IJ
noted, Reyes-Sanchez was held in custody until turned
over to a Mexican immigration official—“not simply
‘turned around’ at the border after detection.” (Id.) The
BIA referenced the same evidence of Reyes-Sanchez’s
apprehension at the border in affirming the IJ’s decision.
This court concurs. Reyes-Sanchez was taken into
custody; she was fingerprinted; and forms were filled
out documenting her apprehension. Reyes-Sanchez was
given a Form I-826 that explained she had “been arrested
because immigration officers believe that you are
illegally in the United States.” The one-page form ex-
plained that she could request a hearing “to determine
whether you may remain in the United States.” The
form further informed Reyes-Sanchez of her “right to
contact an attorney or other legal representative to repre-
sent you at your hearing, or to answer any questions
regarding your legal rights in the United States,” and
offered a list of legal organizations that could represent
her “for free or for a small fee.” The form also gave Reyes-
Sanchez the three options previously discussed—a request
for a hearing on removability, a request for an asylum
hearing, or an admission that she was in the United
States illegally and wished to return home. There can be
little question that had Reyes-Sanchez read this form,
she would have understood her options and understood
that they carried lasting legal consequence. Indeed, the
fact that Reyes-Sanchez used a fictitious name to sign the
Form I-826 suggests she understood the form did
indeed carry legal consequences.
14 No. 10-2122
At oral argument, Reyes-Sanchez’s counsel argued the
form was insufficient, because it did not go the extra
step of informing her that she might have been eligible
for cancellation based on her ten years of continuous
residence, but would have to request a hearing. This
court concludes, consistent with prior case law, that the
Form I-826 sufficiently informed her of her rights and
options. In fact, given the myriad circumstances that
those apprehended at the border face, the brevity of Form
I-826 may well be preferable to providing each detainee
a denser explication of the relevant law. The facts of Reyes-
Sanchez’s apprehension, “supported by reasonable,
substantial, and probative evidence on the record con-
sidered as a whole,” Oryakhil, 528 F.3d at 998, compel
this court’s conclusion that the BIA and IJ correctly deter-
mined that Reyes-Sanchez’s continuous physical
presence in the United States was interrupted when she
chose to return to Mexico in a formal, documented
process while facing threat of removal.
III.
For the reasons stated above, we A FFIRM the decisions
of the IJ and the BIA.
7-14-11