Perez-Cruz

MEMORANDUM **

Perez-Cruz entered the country in 1990 or 1991 and became a permanent resident in 1996. He pled guilty to fourth-degree assault for an attack on his wife and received Notice to Appear before the INS in 2000. After an appeal and remand by the BIA, the Immigration Judge found Perez-Cruz removable because of his conviction, denied his request for cancellation of removal, and granted voluntary departure. Perez-Cruz appealed his denial of cancellation of removal to the BIA, but the government did not appeal the grant of voluntary departure. The Board dismissed the appeal but made no mention of voluntary departure; Perez-Cruz then filed an appeal and a petition to stay voluntary departure with this Court.

We affirm the BIA’s dismissal. Perez-Cruz clearly failed to accrue either five years of residency as a lawful permanent resident or seven years of residency in any status, and both are required for cancellation of removal under 8 U.S.C. § 1229b.

Voluntary departure is still available to Perez-Cruz, however, because the government did not appeal the grant and the BIA summarily affirmed the Immigration Judge’s decision. Because appeal to the BIA stays the decision of the…