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Cite as 23 I&N Dec. 423 (BIA 2002)Interim Decision #3475In re Hilario ROMALEZAlcaide, Respondent File A74 108 648 San Diego Decided May 29, 2002, U.S. Department of Justice Executive Office for Immigration

This finding is consistent with the meaning of “continuous physical presence” under section 240A(b)(5) of the Immigration and Nationality Act. The definition of continuous physical presence is explained at 28 C.F.R. 384.1. An alien is considered to have been physically present in the United States for a continuous period of not more than 180 days prior to a determination of continuous physical presence. See 28 C.F.R. 384.3. It is also appropriate to consider the factors identified in section 240(b)(2)(B)(ii)(II) of the Immigration and Nationality Act which identify an alien's conduct and the extent to which that conduct affects the alien's ineligibility for benefits, regardless of the period of his continuous physical presence. The Secretary's finding that the alien's presence in the United States was continuous in order to cancel removal was premised on the fact that the alien had repeatedly reentered the United States in violation of the terms of the order, not on any subsequent voluntary departure or change of mind. It is, therefore, irrelevant whether the alien reentered the United States in order to return to his family or to obtain employment. The Secretary's conclusion that the alien's entry into the United States on a prior occasion was sufficient to establish the alien's continued presence abroad was also based on circumstances well described in section 240(b)(2)(B)(ii)(II). There is no basis for the Secretary's conclusion that the alien was reentering the United States for another reason, such as to avoid removal or to avoid prosecution. It is of the view that the fact that aliens who have violated and may violate immigration and naturalization laws are unlikely to engage in more illegal activity in future years is a sufficient reason to deny eligibility for cancellation of removal. In this case, the Secretary's finding is reasonable if it is based on facts indicating a continuing problem for deportation or removal. For example, an alien who is apprehended by Customs and Border Patrol officers is likely to be detained under the immigration statutes. An alien who has violated deportation laws and who has reentered the country on previous occasions may be found inadmissible for reentry. The record establishes that the alien's actions under section 235(b) of the Immigration and Nationality Act, 22 U.S.C.

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