Pineda v. Lynch , 656 F. App'x 391 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JONATHAN PINEDA,
Petitioner,
v. No. 15-9577
(Petition for Review)
LORETTA E. LYNCH, United
States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
Mr. Jonathan Pineda is a citizen of Mexico. When the Department of
Homeland Security sought to remove him, he applied for cancellation of
removal. To obtain this relief, Mr. Pineda needed to show that he had
continuously remained in the United States for at least seven years. An
immigration judge found that Mr. Pineda had not satisfied this requirement
*
The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
and ordered removal. The Board of Immigration Appeals agreed and
dismissed Mr. Pineda’s appeal. Mr. Pineda then filed a petition seeking
review of the Board’s decision. We deny the petition, concluding that the
Board did not commit a legal error and that there was substantial evidence
for its findings.
I. Mr. Pineda’s Entry into the United States as a Child: Two
Accounts
The government sought removal based on allegations that Mr. Pineda
had tried to bring a Mexican minor into the United States. At the removal
hearing, Mr. Pineda conceded removability but contended that he was
eligible for cancellation of removal.
To qualify for cancellation of removal, Mr. Pineda needed to show
that he had continuously remained in the United States for at least seven
years. 8 U.S.C. § 1229b(a)(2). This period could not begin until Mr. Pineda
was admitted into the United States and had to end by June 2, 2004 (when
Mr. Pineda was served with a notice to appear). Id.; 8 U.S.C.
§ 1229b(d)(1). Thus, to be eligible for cancellation of removal, Mr. Pineda
needed to show that he had been admitted into the United States on or
before June 2, 1997, which was seven years before service of the notice to
appear.
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Mr. Pineda was recognized as a lawful permanent resident in
February 1999. But this status would not help Mr. Pineda because he
received the notice to appear less than six years later.
Mr. Pineda argues that he was admitted into the country in 1988 by
crossing the border after inspection by border officers. In re Quilantan,
25 I. & N. Dec. 285 (BIA 2010). For the sake of argument, we can assume
that Mr. Pineda’s argument is legally valid. 1 Nonetheless, the evidence on
inspection was conflicting. The government presented two documents, one
filed by Mr. Pineda and the other by his father. Both documents said that
Mr. Pineda had entered the United States in October 1987 “without
inspection.” R. at 140-41, 145. Mr. Pineda argued that these statements
were incorrect, insisting that he had entered the United States in 1988 after
inspection. Though Mr. Pineda supported this argument with an affidavit
signed by his aunt, the aunt did not testify.
1
In Quilantan, the Board reaffirmed one of its prior cases, In re
Areguillin, 17 I. & N. Dec. 308 (BIA 1980), in holding that “an alien who
physically presents herself for questioning and makes no knowing false
claim to citizenship is ‘inspected,’ even though she volunteers no
information and is asked no questions by the immigration authorities, and
that such an alien has satisfied the ‘inspected and admitted’ requirement of
[8 U.S.C. § 1255(a)].” Quilantan, 25 I. & N. Dec. at 293; see also
Cordova-Soto v. Holder, 659 F.3d 1029, 1034 (10th Cir. 2011) (“In
Quilantan, the BIA interpreted the term ‘admitted’ as it is used in
§ 1255(a).”). The statute at issue in Quilantan, 8 U.S.C. § 1255(a), governs
adjustment of status. We need not decide whether Quilantan applies when
an alien seeks cancellation of removal. Cf. Nelson v. Att’y Gen., 685 F.3d
318, 323 n.2 (3d Cir. 2012) (declining to decide whether Quilantan applies
to interpretation of the term “admitted” for cancellation of removal).
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The immigration judge found that Mr. Pineda had not satisfied his
burden. Doing so, the immigration judge stressed that Mr. Pineda and his
father had said, closer to the time that they had entered the country, that
they were not inspected when crossing the border. The judge pointed out
that the aunt had not come forward with her version until 2011, when Mr.
Pineda realized that his earlier version would render him ineligible for
cancellation of removal. In addition, the immigration judge discounted the
aunt’s letter because it had not been notarized, had been short, and had
lacked specifics. The immigration judge also expressed skepticism about
the aunt’s explanation for her refusal to testify.
The Board of Immigration Appeals upheld the immigration judge’s
decision for three reasons.
First, the Board concluded that Mr. Pineda had obtained due process
even though the immigration judge declined to allow evidence on
removability. The Board pointed out that Mr. Pineda’s attorney had
acknowledged that the charge could probably be sustained based on the
investigative report, that Mr. Pineda had declined to contest any
information in the report, that no evidence existed to counter the charge of
removability, that the attorney had no witnesses to rebut the charge of
removability, and that Mr. Pineda had waived the right to present evidence.
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Second, the Board agreed with the immigration judge that in light of
the conflicting evidence, Mr. Pineda had not met his burden of showing
that he had been admitted in 1988.
Third, the Board concluded that the immigration judge had not erred
in refusing to credit the recantation by Mr. Pineda’s father. The Board
reasoned that even if the father had recanted, an evidentiary conflict would
have remained on how Mr. Pineda had entered the United States.
II. Standard of Review
The Board’s decision constitutes the final removal order even though
it was brief and issued by a single Board member. See Uanreroro v.
Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). Thus, we review the
Board’s decision rather than the immigration judge’s. Id. Nonetheless, we
can consult the immigration judge’s explanation for the grounds ultimately
upheld by the Board. Id.
We review the Board’s legal determinations de novo and its factual
findings under the substantial-evidence standard. Niang v. Gonzales, 422
F.3d 1187, 1196 (10th Cir. 2005).
This appeal largely turns on the Board’s factual findings. In our
review, we regard the Board’s factual findings as “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
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III. Mr. Pineda’s Appeal Points
Mr. Pineda argues in part that his father should have been allowed to
testify. According to Mr. Pineda, his father’s testimony would have
clarified that his prior statement was a mistake and that Mr. Pineda had
actually entered in the manner the aunt described. Mr. Pineda adds that (1)
the agency should have given greater credit to his aunt’s declaration and
(2) because of the smuggling charge, agency officials were determined to
disallow cancellation regardless of the evidence. We reject these arguments
for six reasons.
First, the immigration judge could reasonably discount the father’s
recantation in light of the clarity of his earlier account of how he and Mr.
Pineda had entered the country.
Second, the father’s new account was based solely on what the aunt
had said, and the immigration judge did not regard the aunt’s version as
persuasive. The immigration judge could have credited the father’s new
account. But the immigration judge acted reasonably in relying on two
sworn accounts that Mr. Pineda had entered the United States without
inspection.
Third, Mr. Pineda lacks any evidence for his broad challenge to the
agency’s objectivity based on the smuggling charge. This contention is
unsupported.
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Fourth, we reject Mr. Pineda’s due-process challenge to the exclusion
of his father’s testimony. An alien “has no liberty or property interest in
obtaining purely discretionary relief” such as cancellation of removal;
thus, Mr. Pineda “‘cannot raise a due process challenge to the denial of his
application for cancellation of removal.’” Arambula-Medina v. Holder,
572 F.3d 824, 828 (10th Cir. 2009) (quoting Dave v. Ashcroft, 363 F.3d
649, 653 (7th Cir. 2004)).
Fifth, Mr. Pineda cannot base a due-process claim on his inability to
present evidence in opposing the charge of removability. On that charge,
Mr. Pineda’s counsel expressly waived the right to present any evidence.
Thus, Mr. Pineda obtained all of the process that was due. See
Arambula-Medina, 572 F.3d at 828.
Finally, though Mr. Pineda claims that the immigration judge did not
consider evidence from his aunt, that is simply not the case.
IV. Disposition
The petition for review is denied.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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