FILED NOT FOR PUBLICATION NOV 14 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MANZANAREZ-SANTOS, No. 15-70148 Petitioner, Agency No. A088-807-738 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted September 12, 2017 San Francisco, California Before: WALLACE, TASHIMA, and WATFORD, Circuit Judges. 1. The Board of Immigration Appeals (BIA) erred in denying Jose Manzanarez-Santos’ application for cancellation of removal. An alien’s acceptance of voluntary departure breaks his continuous physical presence only if the decision to depart was knowing and voluntary. See Ibarra-Flores v. Gonzales, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5 439 F.3d 614, 619 (9th Cir. 2006). Even if one refuses to credit Manzanarez- Santos’ testimony that he was coerced into departing, as the BIA did, the record nonetheless “must contain some evidence that the alien was informed of and accepted” the terms of voluntary departure. Id. (emphasis in original) (citation omitted). There is no such evidence in this case. Here, as in Ibarra-Flores, the government was not able to produce a signed voluntary departure form. See id. Nor is there any other evidence indicating that Manzanarez-Santos was advised of the consequences of voluntary departure or that he accepted voluntary departure in lieu of being placed in removal proceedings. The government’s reliance on notations from the Utah state court’s record of conviction is misplaced. At most, these bare notations are evidence that Manzanarez-Santos knew he would be removed from the United States through some unspecified process, and that he could not reenter unlawfully. But they are not substantial evidence that Manzanarez-Santos was informed of and accepted voluntary departure. Indeed, the notations make no reference to voluntary departure at all. Zarate v. Holder, 671 F.3d 1132 (9th Cir. 2012), on which the dissent relies, is distinguishable. There, an alien was arrested for possessing a false identification document when entering the United States. Id. at 1133. He was convicted in Page 3 of 5 federal court and returned to Mexico. We held these proceedings broke the alien’s continuous physical presence because the conviction “was a formal, documented process that was the functional equivalent of an adjudication of inadmissibility.” Id. at 1136 (internal quotation marks omitted). While Manzanarez-Santos was subject to a formal proceeding in state court before his return to Mexico, that proceeding was not “the functional equivalent of an adjudication of inadmissibility.” Id. In Zarate, the court emphasized that the defendant pleaded guilty to an offense that “directly relat[ed] to his attempted reentry.” Id. at 1137. The resolution of the criminal charge effectively resolved the question of admissibility as well. Not so here. The offense to which Manzanarez-Santos pleaded guilty, making a false credit report, is unrelated to his immigration status or the circumstances of his entry into the United States. And even if the ...
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