NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0236n.06 No. 17-3946 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MARCELINO GOMEZ, Petitioner,

v. JEFFERSON B. SESSIONS, III, U.S. Attorney General, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

Before: CLAY, STRANCH, and LARSEN, Circuit Judges. LARSEN, Circuit Judge. Marcelino Gomez, a citizen of Mexico subject to removal from the United States, seeks cancellati on of removal and withholding of removal. The immigration judge (IJ) rejected both claims, and the Boar d of Immigration Appeals (BIA) affirmed and dismissed his appeal. In his petition for re view, Gomez argues (1) th at the BIA erred in affirming the IJ’s finding that Gomez had not established ten years’ continuous physical presence in the United States because he offered only his own testimony to establish his presence during some years, and (2) that the BIA erred in affirming the IJ’s conclusion that Mexicans returning to Mexico af ter spending time in the United Stat es are not a cognizable particular social group. Both of Gomez’ s claims are foreclosed by precedent; therefore, we DENY his petition for review.No. 17-3946 Gomez v. Sessions

-2- I. Gomez is a citizen of Mexico who claims that he first entered the United States in June 2001. On October 31, 2011, he was served with a Notice to Appear charging him with being present in the United States without being admitted. See 8 U.S.C. § 1182(a)(6)(A)(i). Gomez sought relief from removal on tw o grounds: (1) cancella tion of removal for certain nonpermanent residents due to the extreme and unusual hardsh ip that his daughter, a United States citizen, would face if he returned to Mexico, and (2) withholding of removal due to his fear of persecution in Mexico on the basis of me mbership in a particular social group. At a preliminary hearing, the IJ informed Gomez that “[i]n order to qualify for cancellation, you have to establish through evid ence—which are witnesses and documents—that you have been in the United States for 10 years.” When asked, Gomez stated that he would need five months to hire an attorney, fill out the ap plication for cancellation of removal, and gather his supporting documents. The IJ then continued Gom ez’s case for five months and again instructed Gomez “to come back with the applicati on and all of your documents completed.” At his hearing on the applic ation, the government conceded that Gomez had established through supporting documentation his phys ical presence “dating back to 2004.” 1 The question remained whether Gomez had been present in the United States since at least October 2001. Gomez testified that he entered the United States in June 2001 and that he remembered learning

1 Gomez did not dispute the government’s charact erizing his documentary evidence as dating back to 2004. Nor does Gomez now contest th e BIA’s claim that he “did not submit any documentary proof for the years 2001–2003.” Our re view of the record indicates that Gomez had attached to his application for cancella tion of removal a document that supported his physical presence in the United States as early as June 2003, though he submitted the document as part of his “Proof of Good Moral Character ” and not as “Proof of Continuous Physical Presence.” We need not decide, however, whet her Gomez established hi s physical presence as early as June 2003, as this document might suppor t, or only as of 2004, as the IJ and BIA determined, because Gomez was required to esta blish his physical presence as of October 2001.No. 17-3946 Gomez v. Sessions

-3- of the events of September 11, 2001, when he was with friends in Chattanooga, Tennessee. When asked by his attorney, Gomez stated that there was no one with whom he was still in contact who could confirm his pres ence in the United States at that time. Gomez proffered three witnesses to support his continuous-presence claim, but none could speak to his presence in the United States before 2004. 2 Consequently, the IJ pretermitted Gomez’s application for cancellation of removal, holding that Gomez had not shown the requisite ten years’ continuous physical presence in the United States. 3 As to Gomez’s application for withholding of removal, the IJ held that individuals who are likely victims of being kidnapped due to their perceived wealth after having spent time in the United States are not a cognizable pa rticular social group and denied the application. The BIA dismissed Gomez’s a ppeal. It noted that, unlike for years 2004 through 2011, Gomez had not submitted documentary corroboration of his physical presence in the United States for years 2001 through 2003. 4 Accordingly, the BIA held that “based on the lack of corroboration, cancellation of removal was properly pretermitted on this ground.” It also rejected Gomez’s argument that the IJ’s pretermissi on of his application viol ated his right to due process. Finally, the BIA upheld the IJ’s determin ation that Gomez had not demonstrated that he

2 Two witnesses testified at the hearing: Ange la Kishaw, who was Gomez’s child’s maternal grandmother, and Tony Oliver, Kishaw’s partne r. Both testified that they had met Gomez around 2004 and that they did not know when Gom ez entered the United States. Gomez also proffered Mayra Varahona but, after admitting that she could only speak to Gomez’s presence in the United States during the previous fi ve years, did not call her to testify. 3 The IJ also held that Gomez’s conviction for pa tronizing a prostitute made him ineligible for cancellation of removal. The BIA did not co nsider this ground for pretermission on appeal; therefore, we do not consider it in reviewing the BIA’s decision. 4 As discussed above, our review of the record indi cates that Gomez had provided documentation attesting to his presence as early as June 2003. This minor discrepancy in the BIA’s characterization of the evidence that Gomez pr ovided, however, is irrelevant, because Gomez does not contest the BIA’s conclusion, and our revi ew of the record reveals that he did not provide any corroborating evidence from 2001 to June 2003.No. 17-3946 Gomez v. Sessions

-4- was a member of a cognizable particular social group. Gomez petitions for review of the BIA’s decision.
II. Where, as here, the BIA reviews the IJ’s decision and issues a se parate opinion, we review the BIA’s decision as the final agency determination. Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). We review questions of law de novo, “but we give s ubstantial deference to the BIA’s interpretations of the [Immigration and Nationality Act (INA)] and its accompanying regulations.” Kukalo v. Holder , 744 F.3d 395, 399 (6th Cir. 2011) (citation omitted). We review the factual findings of the BIA and the IJ under the substantial-evidence standard, Khalili , 557 F.3d at 435, including the determination that an alien has failed to demonstrate a continuous physical presence in the United States, Santana-Albarran v. Ashcroft , 393 F.3d 699, 705 (6th Cir. 2005). Under the substantial-evidence test, we re verse a factual determin ation only if we “find that the evidence not only supports a contrary conclusion, but indeed compels it.” Klawitter v.
INS , 970 F.2d 149, 152 (6th Cir. 1992) (citing INS v. Elias-Zacarias , 502 U.S. 478 (1992)). To be eligible for cancellation of remova l, Gomez was required to show, among other things, continuous physical pr esence in the United States for ten years. 8 U.S.C. § 1229b(b)(1)(A). In making this calculation, Gom ez’s “presence” in the United States ceased to accrue when he was served a Notice to Appear commencing removal proceedings. 8 U.S.C. § 1229b(d)(1). The Notice to Appear was serv ed on October 31, 2011; therefore, Gomez was required to prove his continuous physical presence in the United States beginning on October 31, 2001. The BIA upheld the IJ’s conc lusion that Gomez had not show n his physical presence from 2001 through 2003.No. 17-3946 Gomez v. Sessions

-5- Gomez argues that he established his phys ical presence from 2001 through 2003 with his own testimony. He testified that he arrived in the United States around June 2001 and that he remembered being with friends in Chatta nooga, Tennessee, on September 11, 2001. Gomez’s own attorney then asked him if anyone could c onfirm that he was in the United States around September 2001, and Gomez testified that there was no one with whom he was still in touch who could place him in the Unite d States at that time.
In Santana-Albarran , the alien’s evidence consisted of his own testimony and back tax returns that had been submitted after the comme ncement of removal proceedings. 393 F.3d at 706. We rejected the alien’s ar gument that his back tax return s corroborated his own testimony given their unreliability in that case. Id. at 705–06. Considering the lack of corroboration, we held that the alien’s own testim ony did not compel reversing the IJ ’s finding that the alien had not established his continuous physical presence in the United States. Id. at 706. We recognized that “an illegal alien, whose ma nifest aim is to avoid dete ction, will encounter difficulty providing documentation of his continued presence within the United States for the past decade. Therefore, permissible evidence demonstrating a continuous physical presence should be broadly defined.” Id. at 705. We listed possible corroborating evidence: (1) past employment records, including pay stubs, W-2 forms, certifications of the filing of income tax returns, or letters fr om employers; (2) utili ty bills; (3) school records; (4) hospital or medical records; (5) attestations by churches, unions, or other organizations; and (6) additional documents, including passport entries, birth certificates of children born in the United States, letters or correspondence, contracts, government-issue d identification cards, or a ny other relevant document. Id. (citing 8 C.F.R. § 245a.2(d)(3)). But, we held, when a petiti oner fails to provide any reliable corroboration, we are not compe lled to reverse an IJ’s findi ng that the petitioner had not established his continuous physical presence. See id. at 706. Here, Gomez relies solely on his own testimony to support his claim that he wa s physically present in the United States duringNo. 17-3946 Gomez v. Sessions

-6- part of the requisite ten-year period. 5 Under our precedent, this is insufficient to command reversal. 6 The evidence in the record—consisti ng solely of Gomez’s testimony—does not compel a conclusion different from that of the BIA on the issue of con tinuous physical presence. Gomez also argues that the pretermission of his application for can cellation of removal violated due process, but Gomez does not have a protected liberty interest in the discretionary cancellation of removal. See Patel v. Gonzales , 470 F.3d 216, 220 (6th Cir. 2006) (holding that “[t]he failure to be granted discretionary relief . . . does not amount to a deprivation of a liberty interest” (alteration in original) (quoting Ali v. Ashcroft , 366 F.3d 407, 412 (6th Cir. 2004))); Patel v. Ashcroft , 401 F.3d 400, 404 (6th Cir. 2005) (descr ibing cancellation of removal as “a remedy that is discretionary at all events”). Accordingly, he cannot establish a due process violation. U.S. Const. amend V; Patel , 470 F.3d at 220.

5 Gomez has not claimed that corroborating evidence was not reasonably available. See 8 U.S.C. § 1229a(c)(4)(B) (“Where the immigration judge de termines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the a pplicant does not have the evidence and cannot reasonably obtain the evidence.”). He instead states, in conclusory fashion, that providing physical evidence to prove ten years’ physical presen ce would be difficult. Th at is insufficient to meet the statutory standard. 6 Gomez invites us to decide whether Santana-Albarran requires documentar y corroboration of an alien’s claim of continuous presence in the United States, or whether testimonial corroboration would have been su fficient to compel us to reve rse the factual findings made below. We need not address the question be cause Gomez provided no corroboration at all. Gomez points to a Ni nth Circuit case, Lopez-Alvarado v. Ashcroft , 381 F.3d 847 (9th Cir. 2004), which contains language that might be read to suggest that credib le, yet uncorroborated, testimony by an alien alone could be sufficient to establish his continuous presence. But, of course, we are bound by our own caselaw, not the Ni nth Circuit’s, and the clear law of this Circuit is that corroboration is required to compel reversal. Santana-Albarran , 393 F.3d at 706; see also Urbina-Mejia v. Holder , 597 F.3d 360, 367 (6th Cir. 2010) (“Thus, under the REAL ID Act, if the agency determines that an applic ant should provide corrobora ting evidence, even if the applicant is found cr edible, corroborating evid ence is required unless the applicant cannot reasonably obtain that evidence, and we are bound to uphold a finding that corroborative evidence is available unless co mpelled otherwise.”). And, in any event, we think Gomez overreads Lopez-Alvarado , because, in that case, three witne sses in fact corroborated the alien’s testimony.No. 17-3946 Gomez v. Sessions

-7- III. Finally, Gomez argues that the BIA erred in a ffirming the IJ’s denial of his application for withholding of removal. An alien is entitled to withholdi ng of removal to a particular country if he shows that his “lif e or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 208.16(b). In his application for withholding of removal, Gomez claimed that he was afraid to return to Mexico becaus e “[t]hey could kidnap a family member because they may think that I have money because I lived in the United States. I believe people think I have a lot of money because I have live[d] in this country for so long.” The IJ determined that “returning Mexicans who are perceived to be wealthy” are not a cognizable particular social group. The BI A affirmed and dismissed Gomez’s appeal. 7 We have previously considered and rejected Gomez’s argument. See Sanchez-Robles v. Lynch , 808 F.3d 688, 692 (6th Cir. 2015) (collecting cases). As we have done on numerous occasions, we again reject the argument that “individuals who are likely victims of being kidnapped due to time spent in the United Stat es” because of their perceived wealth are a cognizable particular social group under the INA. We, therefore, hold that the BIA did not err in upholding the IJ’s determination that Gomez failed to show that he faces persecution on account of membership in a particular social group.

7 To the extent that Gomez attempts to redefine his purported particular social group in this Court—by stating that Mexicans re turning to Mexico from the Un ited States are perceived not only as wealthy but also as “mor e likely to resist and threaten the[] power” of persecutors—he did not raise that argument in front of the IJ or the BIA. We therefore do not consider Gomez’s argument that Mexicans returning to Mexico are pe rceived as “more likely to resist and threaten the[] power” of unspecified persecutors. See Alizoti v. Gonzales , 477 F.3d 448, 451 (6th Cir. 2007) (“[T]his Court lacks jurisd iction to review any issues th at have not been raised and administratively exhausted below. ” (citing 8 U.S.C. § 1252(d)(1); Ramani v. Ashcroft , 378 F.3d 554, 558 (6th Cir. 2004))).No. 17-3946 Gomez v. Sessions

-8- * * * We DENY Gomez’s pe tition for review.