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Rodriguez-Labato v. Sessions

United States Court of Appeals, Eighth Circuit

August 21, 2017

Gabino Rodriguez-Labato Petitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States Respondent

          Submitted: March 7, 2017

         Petition for Review of an Order of the Board of Immigration Appeals

          Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Gabino Rodriguez-Labato (Petitioner) petitions for review of a decision by the Board of Immigration Appeals (the Board) dismissing his appeal from the immigration judge's (IJ) denial of his application for cancellation of removal of a nonpermanent resident alien under 8 U.S.C. § 1229b(b). He argues that the Board erred in concluding that he voluntarily departed the United States under threat of deportation, thus breaking the required ten-year period of continuous residence. We deny the petition.

         On or about August 13, 2009, the Department of Homeland Security (DHS) filed a Notice to Appear (NTA) for Petitioner, a native and citizen of Mexico. Petitioner was incarcerated in Decorah, Iowa, at that time, awaiting trial for assault with intent to inflict damage. The NTA alleged that Petitioner had entered the United States on April 1, 2001, after having voluntarily departed on six occasions. It alleged that Petitioner was removable as an alien present in the United States without being admitted or paroled. 8 U.S.C. § 1182(a)(6)(A)(i). Appearing before the IJ on March 29, 2010, Petitioner denied the date of entry alleged in the NTA, admitted to the remaining factual allegations therein, and conceded removability.

         On May 5, 2010, Petitioner filed an application for cancellation of removal under 8 U.S.C. § 1229b(b). DHS moved to pretermit the application for cancellation of removal, arguing that Petitioner had voluntarily departed the United States under threat of deportation on March 23, 2001, and thus had not been physically present for a continuous ten-year period immediately preceding his service with an NTA, as required by § 1229b(b)(1)(A) and 1229b(d)(1).

         DHS submitted Form I-826, entitled "Notice of Rights and Request for Disposition, " signed by Petitioner and dated March 23, 2001. The form was written in Spanish and was signed by an immigration officer, who certified that Petitioner had read the notice and that it was read to him in Spanish. The English translation of the form stated, under the heading "Notice of Rights":

You have been arrested because immigration officers believe that you are illegally in the United States. You have the right to a hearing before the Immigration Court to determine whether you may remain in the United States. If you request a hearing, you may be detained in custody or you may be eligible to be released on bond, until your hearing date. In the alternative, you may request to return to your country as soon as possible, without a hearing.

         Under the heading "Request for Disposition, " the form offered three options:

[1] I request a hearing before the Immigration Court to determine whether or not I may remain in the United States.
[2] I believe I face harm if I return to my country. My case will be referred to the Immigration Court for a hearing.
[3] 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 Immigration 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.

         Petitioner selected the third option. DHS records provided additional details regarding this encounter, including that Petitioner was apprehended, detained, photographed, fingerprinted, and checked against an ...


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