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A voluntary departure from the United States under the threat of the commencement of immigration proceedings interrupts the requisite continuous presence for eligibility for cancellation of removal, pursuant to 8 U.S.C. �1229b. Click here for the full text of this decision FACTS:A Mexican national, Mireles-Valdez, illegally entered the United States in 1973. He voluntarily left the country in 1998, and when he tried to return 14 days later, he was caught at the border. He agreed to voluntarily depart the United States, and he was returned to Mexico without any proceedings being brought against him The day after his departure, the man again illegally entered the United States. He was arrested in 1999 and turned over to the INS, which issued a Notice to Appear. The man admitted he was illegally present and subject to removal, but he asked for a cancellation of removal under 8 U.S.C. �1229b. One of the requirements of �1229b making an illegal alien eligible for cancellation of removal is if the alien has had a continuous presence in the country for 10 years. The immigration judge ruled that the man’s 1998 voluntary departure interrupted his 10-year continuous presence. He denied the cancellation, and he ordered the man removed. The Board of Immigration Appeals affirmed without opinion. HOLDING:Petition for review denied. Whether an alien satisfies the continuous presence requirement is a non-discretionary determination because it involves straightforward statutory interpretation and application of law to fact. Accordingly, this court has jurisdiction to review whether Mireles-Valdez was ineligible for cancellation because he lacked the required continuous presence. The court then reviews the chronology of the man’s departures. The court and the parties agree that the 14-day departure in 1998 did not interrupt his continuous presence. However, the court agrees with the government’s position that when Mireles-Valdez voluntarily left the country in 1999, in the face of pending immigration proceedings, his continuous presence since 1973 came to an end. Thus, when he reentered the country the next day, the 10-year continuous-presence clock began anew. Voluntary departure is granted an alien”as a form of clemency,” the court adds, “in return for his agreeing to relinquish his illegal presence.” OPINION:Barksdale, J.; Barksdale, DeMoss and Benavides, JJ.

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