In a pair of companion cases, the Board of Immigration Appeals (BIA) clarified when a voluntary departure or voluntary return breaks a non-citizen's continuous physical presence for the purpose of ascertaining eligibility for cancellation of removal for non-lawful permanent residents. The BIA stated that a voluntary departure or return will not break an applicant's continuous physical presence, if, at the time of the departure, the applicant had the right to seek relief from removal before an Immigration Judge and was not informed of this right. In other words, there must be some indication that the applicant, as part of a formal process, accepted voluntary return in lieu of being placed in removal proceedings.
Evidence that the applicant was photographed or fingerprinted at the time of the departure is not sufficient to demonstrate the requisite formality of the process. The BIA concluded "that where an alien has a right to a hearing before an Immigration Judge, there must be reliable testimonial and/or documentary evidence in the record to establish that the alien was informed of that right and waived it before a voluntary departure will be considered a sufficiently formal process to break his or her physical presence." Thus, when evaluating whether a departure breaks an applicant's continuous physical presence, the Immigration Judge should consider (1) the date and place of the encounter underlying the purported presence-breaking departure; (2) the possibility that the alien was alternatively subject to exclusion, deportation, or removal proceedings in which there was a right to a hearing before an Immigration Judge; and (3) the formality of the process used, including how the threat of proceedings was communicated to the alien, what advisals were given, and whether the alien had knowledge that the agreement to depart was in lieu of being placed in proceedings. Interestingly, the BIA noted that the Government attorney will typically be in a better position to offer documentary evidence regarding the formality of any departure.
The full text of Matter of Castrejon-Colino can be found here: http://www.justice.gov/eoir/file/788746/download