Benitez

concurring in part and dissenting in part:

I concur with respect to Garcia Benitez. I dissent, however, with respect to Cortes. Garcia Benitez and Cortes have a six year-old daughter, Carla Joanna Garcia, who is a United States citizen. When a parent is denied cancellation of removal, the government effectively deports the United States-born children of that parent. This unconscionable result violates due process by forcing children either to suffer de facto expulsion from the country of their birth or forego their constitutionally-protected right to remain in this country with them family intact. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 503-05 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (“Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation’s history and tradition.”); Stanley v. Illinois, 405 U.S. 645, 651 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972) (recognizing that “[t]he integrity of the family unit has found protection in the Due Process Clause of the 14th Amendment”).

Furthermore, as a nation we should recognize that many who came here illegally and many…

MEMORANDUM ***

Pro se Petitioner Juan Carlos Garcia Benitez (“Garcia Benitez”) and his wife, Norma Angelica Cortes (“Cortes”), are natives and citizens of Mexico who seek review of the Board of Immigration Appeals’ order affirming, without opinion, an Immigration Judge’s (“IJ”) decision denying their applications for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We review the agency’s continuous physical presence determinations for substantial evidence. See Ibar-ra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006). We grant Garcia Benitez’s petition for review, and remand. We grant in part, deny in part, and remand Cortes’s petition for review.

Petitioners’ initial argument that the Board’s summary decision violated its own regulations is foreclosed by Falcon Car-riche v. Ashcroft, 350 F.3d 845, 848-53 (9th Cir.2003) (as amended). We turn to the merits of their claims.

*525 With respect to Garcia Benitez, an intervening change in the law requires us to remand on the issue of continuous physical presence. In Ibarra-Flores, 439 F.3d at 619 , we held that administrative voluntary departure under threat of deportation breaks the accrual of…