Neftali Landin-Zavala v. Alberto R. Gonzales, Attorney General

Neftalí Landin-Zavala (“Petitioner”), a native and citizen of Mexico, petitions for the review of a final order denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). The order was entered by the Board of Immigration Appeals (the “Board”) on January 23, 2004, affirming Immigration Judge Ignacio P. Fernandez’s decision of September 9, 2002. Petitioner argues that neither his formal order of exclusion nor his voluntary return to Mexico subsequent to apprehension by the U.S. border patrol later that month ended his continuous physical presence in the United States for purposes of the cancellation of removal statute. We find Petitioner’s arguments to be without merit, and the petition is denied.

According to Petitioner’s testimony, he first came to the United States in August 1990, and was apprehended by the (former) Immigration & Naturalization Service (“INS”) border patrol, who allowed him to return to Mexico voluntarily. Shortly thereafter, he reentered the United States and remained until 1995 when he went to Mexico to visit his mother. He returned to the United States approximately a month…