FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 11, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court MARIO GALVAN MORALES, Petitioner, v. No. 18-9504 (Petition for Review) JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, McKAY and MATHESON, Circuit Judges. _________________________________ Mario Galvan Morales, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (“BIA”) decision dismissing his appeal of an immigration judge’s (“IJ”) finding that he is ineligible for cancellation of removal. We dismiss the petition for lack of jurisdiction. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND On September 14, 2012, the Department of Homeland Security issued to Mr. Galvan a Notice to Appear in removal proceedings. In these proceedings, Mr. Galvan admitted he was an alien unlawfully present in the United States. The IJ found him to be subject to removal. Mr. Galvan then applied for cancellation of removal under 8 U.S.C. § 1229b(b), which authorizes the Attorney General to cancel removal and adjust the status of certain nonlawful resident aliens. To be eligible for this discretionary relief, Mr. Galvan was required to prove that he had been physically present in the United States for a continuous period of not less than ten years before he received the Notice to Appear. See id. § 1229b(b)(1)(A), (d)(1). Under the statute, departures from the United States for certain limited periods of time do not break an alien’s continuous physical presence. See id. § 1229b(d)(2). But a “voluntary departure” under threat of removal proceedings breaks physical presence. See, e.g., In re Romalez-Alcaide, 23 I. & N. Dec. 423, 424 (BIA 2002) (holding that a nonlawful resident’s continuous physical presence ends when he voluntarily departs the United States under threat of removal proceedings); Barrera-Quintero v. Holder, 699 F.3d 1239, 1245 (10th Cir. 2012) (granting deference to the BIA’s construction of the continuous-physical-presence statute in Romalez-Alcaide). For a voluntary departure to break physical presence, there must be evidence “show[ing] a process of sufficient formality that the alien was made aware of the choice between returning [to his home country] voluntarily or being subjected to 2 more formal procedures to expel him or her from the United States.” In re Castrejon-Colino, 26 I. & N. Dec. 667, 670 (BIA 2015); see Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 908 (8th Cir. 2005) (“[B]efore it may be found that a presence-breaking voluntary departure occurred, the record must contain ...
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