Gomez-Zarate v. Holder, No. 08-70696 (9th Cir. 2012)Annotate this Case
Petitioner, a citizen of Mexico, first entered the U.S. in 1989. In 1993, he went to Mexico for two or three weeks. When he attempted to reenter he was arrested and charged with falsely claiming U.S. citizenship and possessing a false identification document. He pleaded guilty to possession of a false identification document, 18 U.S.C. 1028(a)(4), (b)(3). After being released in Mexico he immediately crossed the border on foot. In 2000, the INS charged petitioner with removability, 8 U.S.C. 1227(a)(1)(C)(i). The IJ held that his 1993 departure interrupted continuous physical presence and made him ineligible for cancellation of removal and granted voluntary departure. On remand, petitioner testified that he was not told about the possibility of taking his case to immigration court or given a voluntary departure option in 1993. The IJ found that the 1993 departure was "clearly different from" a mere turn-around at the border and again granted voluntary departure. The BIA dismissed an appeal. The Ninth Circuit denied appeal. Although the 1993 conviction did not declare that he was inadmissible, petitioner was subjected to a "formal, documented process" sufficient to break his continuous physical presence in the U.S.