Gomez Zarate v. Holder

Removal from the United States after a criminal proceeding, even if not in front of a Immigration Judge, is enough to break the continuous and uninterrupted presence requirement on an application for cancellation of removal.

Gomez appeals from a decision pretermitting his application for cancellation of removal. The Immigration Judge ("IJ") found that Gomez's departure to Mexico after being caught trying to illegally reenter the United States interrupted the continuous stay requirement. The Board of Immigration Appeals ("BIA") initially found the evidentiary record insufficient and remanded the case. The IJ again pretermitted the application. On appeal the BIA found the record sufficient for the IJ's determination and dismissed the appeal. Gomez entered the United States in 1989. In 1993 he returned to Mexico for a short visit; while trying to reenter he was stopped at the boarder and eventually admitted his documentation was false. Gomez pleaded guilty to possessing false documentation and was put in the custody of the INS and returned to Mexico. Shortly after being returned to Mexico, Gomez crossed back into the United States, where he remained until he received a notice to appear in August of 2000. In order to get a cancellation of removal, a person must have a continuous and uninterrupted presence in the United States for 10 years. A formal removal proceeding or departure under threat of removal breaks the continuous presence. Gomez contends his departure in 1993 was not formal enough to break his continuous presence. The Court held that being present before a judge and pleading guilty was a formal process, and the subsequent return to Mexico by the INS broke his continuous and uninterrupted presence. PETITION FOR REVIEW DENIED.