On Petition for Review of an Order of the Board of Immigration Appeals (A071-875-923) Immigration Judge: Honorable Annie S. Garcy
The opinion of the court was delivered by: Fuentes, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) February 23, 2011
Before: FUENTES, VANASKIE and NYGAARD, Circuit Judges
Gad Demandstein, a native and citizen of Israel, petitions for review of a final order of removal. For the reasons that follow, we hold that the record supports the Board of Immigration Appeals‟s ("BIA") determination that Demandstein is ineligible for cancellation of removal under INA § 240A(b)(1), and will deny the petition for review.
Demandstein, formerly "Gad Yahalomi," first entered the United States in 1987 on a visitor visa and overstayed. In 1990 and 1991, he again entered as a visitor and overstayed each time. In 2004, Demandstein applied for an adjustment of status based on an employer‟s approved immigrant petition for an alien worker. The Department of Homeland Security ("DHS") denied the request to adjust status because Demandstein failed to submit an affidavit detailing his past attempts to enter the United States, and because he was arrested in 1992 for attempting to smuggle another alien into this country.
In 2007, DHS served a Notice to Appear, charging Demandstein as inadmissible for being present without being admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien who knowingly encouraged or assisted another alien in trying to enter the United States illegally, id. § 1182(a)(6)(E)(i). In proceedings before an Immigration Judge ("IJ"), Demandstein conceded both grounds and he was deemed inadmissible as charged.
Demandstein applied for cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which permits the Attorney General to cancel removal if an inadmissible alien meets certain requirements, including a showing that he "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application[.]" 8 U.S.C. § 1229b(b)(1)(A). DHS moved to disallow Demandstein‟s application on the ground that he cannot make this showing. It argued that, because Demandstein withdrew an application for admission to the United States in 1999 when he was refused entry at the Canadian border, the continuity of his period of physical presence terminated at that time. Consequently, DHS argued, Demandstein cannot show ten continuous years of presence prior to being served with the Notice to Appear in 2007.
The IJ granted DHS‟s motion, concluding from the evidence presented at an evidentiary hearing on the issue that Demandstein "knowingly withdrew his application for admission [in 1999] and terminated his period of continuous physical presence by doing so." A.R. at 49. The IJ ordered removal to Israel. The BIA dismissed Demandstein‟s appeal. It found that his "actions show that the withdrawal of [his] application for admission, in lieu of a formal determination of admissibility, was made with the understanding that [he] had no legitimate expectation that he could legally re-enter the United States and resume his continuous physical presence in this country." A.R. at 4. Consequently, the BIA held that Demandstein is ineligible for cancellation of removal. Demandstein timely filed a petition for review.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the question of Demandstein‟s statutory eligibility for cancellation of removal. See Okeke v. Gonzales, 407 F.3d 585, 588 n.4 (3d Cir. 2005); Mendez-Reyes v. Att‟y Gen., 428 F.3d 187, 189 (3d Cir. 2005). "Where, as here, the BIA issues a decision on the merits and not simply a summary affirmance, we review the BIA‟s, not the IJ‟s, decision." Li v. Att‟y Gen., 400 F.3d 157, 162 (3d Cir. 2005). "We review the BIA‟s legal determinations de novo, subject to established principles of deference." Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). "We apply substantial evidence review to agency findings of fact, departing from factual findings only where a reasonable adjudicator would be compelled to arrive at a contrary conclusion." Mendez-Reyes, 428 F.3d at 191.
Demandstein argues on appeal that he did not knowingly withdraw his application for admission to this country in 1999, and therefore did not end his period of continuous physical presence under § 1229b(b)(1)(A), because he retained a legitimate expectation that he could re-enter the United States and resume his period of ...