Submitted: March 7, 2017
for Review of an Order of the Board of Immigration Appeals
WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
WOLLMAN, Circuit Judge.
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.
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
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).
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.
the heading "Request for Disposition, " the form
offered three options:
 I request a hearing before the Immigration Court to
determine whether or not I may remain in the United States.
 I believe I face harm if I return to my country. My case
will be referred to the Immigration Court for a hearing.
 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.
selected the third option. DHS records provided additional
details regarding this encounter, including that Petitioner
was apprehended, detained, photographed, fingerprinted, and
checked against an ...