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Urbina v. Holder

United States Court of Appeals, Fourth Circuit

March 17, 2014

GUSTAVO URBINA, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent

Argued December 10, 2013.

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Philip A. Eichorn, PHILIP EICHORN COMPANY, LPA, Cleveland, Ohio, for Petitioner.

Jennifer Paisner Williams, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Stuart F. Delery, Acting Assistant Attorney General, David V. Bernal, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ, AGEE, and DIAZ, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Motz and Judge Agee joined.

OPINION

Page 737

DIAZ, Circuit Judge:

The Immigration and Nationality Act permits the Attorney General to cancel removal of certain aliens. See 8 U.S.C. § 1229b(b). Although the Attorney General has discretion in such matters, the statute requires the alien to have " been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application." Id. § 1229b(b)(1)(A). In this case, Gustavo Urbina, a native and citizen of Nicaragua, argues that he has met that requirement and is thus statutorily eligible for cancellation of removal. The Immigration Judge and the Board of Immigration Appeals found otherwise. For

Page 738

the reasons that follow, we deny in part and dismiss in part Urbina's petition for review.

I.

Urbina entered the United States on October 4, 2000, on a tourist visa. He overstayed its expiration. In December 2009--shortly before the statute's ten years would accrue--the Department of Homeland Security served Urbina with a notice to appear, charging him with having entered the United States without being admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The government apparently based that charge on Urbina's own representations in his 2003, 2005, and 2006 applications for temporary protected status, which asserted that he had entered the country in 1998--an entry date the government was unable to verify. The notice to appear did not specify a date and time for the hearing, but instead noted they were " to be set." A.R. 184.[1]

Before an Immigration Judge, Urbina admitted that he was not an American citizen. He did not argue that he was in the United States legally, but asserted that he had entered legally in October 2000. Thus, he explained, the charge against him was incorrect. The IJ asked Urbina to file a copy of his passport showing his October 2000 entry. Urbina, in turn, requested that the government file an I-261 form at the next hearing: this form would swap out the original charge on the notice to appear (illegal entry) for the factually correct charge (illegal presence, pursuant to 8 U.S.C. ยง 1227(a)(1)(B)). The IJ responded, " That's why I'm ...


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