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2nd Circuit Court Findings Regarding Cancellation of Removal

The Second Circuit Court of Appeals issued a decision on May 16, 2013 denying a Mexican man Cancellation of Removal for Certain Non-permanent Residents. Qualification for cancellation requires that an applicant show that he has maintained continuous presence in the United States for a period of 10 years, among other factors. In this instance, the man returned to Mexico during the course of this 10-year period and upon re-entering was apprehended by Customs and Border Protection officers on two consecutive occasions. After these apprehensions, he was provided with two "voluntary returns" to Mexico, which is a way of avoiding a lengthy court process.

The Second Circuit Court of Appeals reasoned that these voluntary returns severed his continuous residence in the United States, as they were "a formal documented process" and were sufficient enough to terminate the continuous physical presence needed to establish qualification for Cancellation of Removal for Non-permanent residents. The Second Circuit joins the Seventh and Nineth Circuits as courts that have held that voluntary return procedures, if sufficiently formal and documented, will result in a break in the continuous physical presence required for Cancellation of Removal.

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