PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

HECTOR BARRERA- QUINTERO, a/k/a Hector Barrera Quintero, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 11-9522

ON PETITION FOR REVI EW OF AN ORDER OF THE BOARD OF IMMI GRATION APPEALS

Edward L. Carter, Keen Law Offices, LLC, Orem, Utah (J. Christopher Keen, Keen Law Offices, LLC, Orem, Utah, with him on the brief), for Petitioner. Walter Bocchini, Office of Immigration L itigation, Civil Division, United States Department of Justice, Washington, D.C. (T ony West, Assistant At torney General, and Janice K. Redfern, Senior Litigation Counse l, Office of Immigration Litigation, Civil Division, United States Department of Justic e, Washington, D.C., with him on the brief), for Respondent.

Before KELLY, HOLLOWAY , and MATHESON , Circuit Judges.

HOLLOWAY , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### November 15, 2012
Elisabeth A. Shumaker Clerk of Court-2- INTRODUCTORY STATEMENT Hector Barrera–Quintero, a native and c itizen of Mexico, faces removal from this country. He seeks review of a Board of Immigration Appeals (BIA) decision finding him ineligible for cancellation of re moval. Because Congress tigh tly constrains our power to review discretionary aspects of the BIA’s orders of removal, we must DISMISS IN PART his petition for lack of ju risdiction. But we are not si milarly limited in our review of constitutional claims and ques tions of law involving statut ory construction. In this case, Mr. Barrera’s 1 eligibility for cancellation of rem oval hinges on whether he has maintained at least ten years of continuous physical presence in this country, as required by the terms of 8 U.S.C. § 1229b(b)(1)(A ). Because the BIA relied on a reasonable statutory construction in finding Mr. Barrera failed to satisfy th e continuous-presence requirement, we DENY the remainde r of the petition for review. I. BACKGROUND
A. Facts Mr. Barrera was born in the state of Ja lisco, Mexico, in 1974 . He entered the United States in May of 19 90 without inspection or auth orization by an immigration officer. To put it more blun tly, Mr. Barrera came to this country illegally. With the exception of a two-month span in 2004, he ha s lived here since his 1990 arrival. Mr. Barrera initially settled in southe rn California. In 1993, he pleaded nolo contendere to

1 We follow Mr. Barrera’s lead in referri ng to him as Mr. Barre ra rather than Mr. Barrera–Quintero

.-3- willful infliction of corporal injury on a s pouse, a violation of Ca lifornia Penal Code § 273.5(a). He was sentenced to a term of probation and community service. That same year, his son—a United States citizen—was born. Over the next ten years, Mr. Barrera worked as a carpenter and carpet layer in va rious California cities be fore making his way to Utah. On June 1, 2004, Mr. Barrera was arre sted at a Utah Driver License Division office in St. George, Utah after being found with a fake Social Secur ity card. He pleaded guilty to violating Utah Code Ann. § 76-8-511, which proh ibits the falsification or alteration of government records. Followi ng his conviction, immigration officials took Mr. Barrera into custody an d presented him with a singl e-page Spanish-language document known as a Form I-8 26. The document stated that immigration officers believed he was in the United States illegall y and advised him of his right to a hearing before the Immigration Court. The document th en instructed Mr. Barrera to elect one of three options, the selection of which he wa s to indicate by checking a box and initialing next to his choice. He co uld (1) ask for a hearing befo re the Immigration Court to determine his admissibility; (2) s eek an asylum hearing; or (3) acknowledge he was in the United States illegally, waive his right to a hearing, and request return to Mexico. Mr. Barrera chose the third option: voluntar y return to Mexico in lieu of a hearing on admissibility. He signed and dated the Form I-826 and inscribed a check mark and his initials next to the section stating, in relevant part, “I admit that I am in the United States illegally, and I believe I do not face harm if I return to my count ry. I give up my right to-4- a hearing before the Immigration Court. I wish to return to my country . . . .” R. at 473. 2 On June 10, 2004, Mr. Barrera returned to Mexico, crossing the border at the San Ysidro, California port of entry. He likely reentered the United States on or around August 15, 2004, some sixtysix days later. 3 As was the case in 1990, no immigr ation officer authorized Mr. Barrera’s entry. In March of 2007, he was again arrested in Utah for attempting to obtain a driver’s license using fraudulent documents. This time, immigration officials served him with a Notice to Appear, a document charging him as an alien illegally present in the United States and subject to removal from this c ountry under 8 U.S.C. § 1182(a)(6)(A)(i). B. Proceedings Before the Immigration Judge Conceding that he was unlawfully present in the United States and thus removable as charged in the Notice to Appear, Mr. Barr era applied for cancellation of removal under 8 U.S.C. § 1229b. The Atto rney General has discretionary authority to cancel the removal of a nonlawful resident who

2 To be clear, the form signed by Mr. Barrera contained this lang uage in Spanish, see R. at 474, and there is no dispute that M r. Barrera can read and understand Spanish. The English translation recited here co mes from an English-language Form I-826 contained in the Certified Administrative Record, see id. at 473, and the accuracy of the translation is not in dispute. The English-language form is entitled Notice of Rights and Request for Disposition; the Spanish-language form is entitled Noti ficación de Derechos y Solicitud de Resolución.

3 We note that Mr. Barrera, at a hearing before the Immigration Judge, later denied reentering the United States on or around August 15, 2004. See R. at 176. Mr. Barrera did not advance any evidence in support of this contention. At any rate, a precise temporal pinpoint for his reen try is not necessary. Here, th e legally significant event is his 2004 departure from, not his ev entual return to , this country.-5- (A) has been physically present in th e United States for a continuous period of not less than 10 years immediat ely preceding the date of such application; (B) has been a person of good mo ral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfu lly admitted for permanent residence. 8 U.S.C. § 1229b(b)(1). The Government move d to pretermit Mr. Ba rrera’s application, arguing that his voluntary return to Mexico in 2004 broke his continuous physical presence in the United States under th e standards articulated by the BIA in In re Romalez–Alcaide , 23 I. & N. Dec. 423 (B.I.A. 2002), and In re Avilez–Nava , 23 I. & N. Dec. 799 (B.I.A. 2005). Romalez–Alcaide and Avilez–Nava , the definitive BIA cases outlining the parameters of § 1229b(b)(1)(A)’s continuous -presence requirement, hold that a nonlawful resident’s continuous physical presence ends when he voluntarily departs the United States under threat of removal proceedings. The Government contended that Mr. Barrera ’s 2004 departure fell square ly within the rule of Romalez– Alcaide and Avilez–Nava , thus depriving him of eligibility for cance llation of removal as a matter of law. Mr. Barrera countered that immigration o fficers did not inform him of his rights while in their custody in 2004. For th is reason, he argues, hi s “voluntary return” to Mexico was not voluntary at all. As su ch, it would not count as a presence-breaking departure from the United States for purpos es of calculating his continuous physical-6- presence in this country under § 1229b(b)(1)(A). M r. Barrera stated that the immigration officers “seemed very rushed,” did not in any way explain his rights to him, and told him he “had two choices, either to stay in jail, or be deported to Mexico.” R. at 478. Mr. Barrera alleged that the immigration offi cer who presented him with the Spanishlanguage Form I-826 merely “c hecked off on the lin es where [he] was su pposed to sign,” leaving him “unaware of the contents of the document.” Id. Mr. Barrera further claimed that the Form I-826 and other supporting documentation contai ned various errors, misstatements, and omissions. Mr. Barrera also filed a motion seeking to compel the in-person testimony of the immigration officer who prepared and signe d his 2004 departure paperwork, Rexall Griggs. The Immigration Judge did not direc tly rule on Mr. Barrera ’s motion. Instead, the Immigration Judge deemed the motion moot because the Government had made Officer Griggs available to testify by telep hone. The Immigration Judge determined this would give Mr. Barrera an adeq uate opportunity for cross-ex amination of Officer Griggs. The Immigration Judge found Mr. Barrera ineligible for cancellation of removal on two independent grounds. First, the Immigration Judge concluded that Mr. Barrera’s 2004 departure had broken the requisite ten year s’ worth of continuous physical presence in the United States immediately preceding the date of his cancellation application. Second, the Immigration Judge determined that Mr. Barrera’s California and Utah convictions were both for crimes involving mo ral turpitude, a type of offense listed under § 1182(a)(2). A conviction of a crime involving moral turpitude forecloses eligibility for cancellation under § 1229b(1)(C).-7- C. The BIA’s Order Mr. Barrera appealed the decision of th e Immigration Judge to the BIA. Relying on its precedent in Romalez–Alcaide and Avilez–Nava , the BIA affirmed the Immigration Judge’s determination that Mr. Barrera’s 2004 departure under threat of the institution of removal proceedings ended his u nbroken accrual of continuous physical presence in the United States. Finding next that Mr. Barrera’s 1993 Ca lifornia conviction was for a crime involving moral turpitude (it did not re ach the matter of his Utah conviction), the BIA dismissed his appeal in a single-member-issu ed opinion. In sum, the BIA held that Mr. Barrera was removable from the United States as charged and not eligible for cancellation of removal. II. DISCUSSION A. Jurisdiction, Deferen ce, and Standard of Review A jurisdictional inquiry stands at the thre shold of our review of a cancellation-ofremoval case. See Sabido Valdivia v. Gonzales , 423 F.3d 1144, 1147 (10th Cir. 2005). This is because Congress has chos en to curtail judicial review of orders of removal. By statute, no court has jurisdiction to review “any judgment regarding the granting of relief under section . . . 1229b.” 8 U.S.C. § 1252 (a)(2)(B)(i). But this la nguage does not sweep so broadly as it might seem, for “[w]e have construed the term ‘judgment’ in this subsection as referring to the discretionary aspects of a decision concerning cancellation of removal,” including any “underl ying factual determinations.” Arambula–Medina v. Holder , 572 F.3d 824, 82 8 (10th Cir. 2009); see also Sabido Valdivia , 423 F.3d at 1148-8- (“[O]nly decisions involving th e exercise of discretion fall w ithin . . . § 1252’s definition of a ‘judgment.’”). By that sa me token, we have retained the power to review decisions of the BIA that “turn[] on the evalua tion of non-discretionary criteria.” Sabido Valdivia , 423 F.3d at 1149. We “have jurisdiction to review ‘constitutional claims’ and ‘questions of law.’” Arambula–Medina , 572 F.3d at 828 (quoting 8 U.S.C. § 1252(a)(2)(D)). 4 We review questions of law and statut ory construction de novo. See Torres de la Cruz v. Maurer , 483 F.3d 1013, 1019 & n.5 (10th Cir. 2007). Where Congress has not made clear its intent in enacting an immigration statute, we give appropriate deference to the BIA’s interpretation of the statute at issue. See Padilla–Caldera v. Holder , 637 F.3d 1140, 1147 (10th Cir. 2011). In doing so, we appl y the two-step test announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984). Under the Chevron test, “a court gives deference to an agency's inte rpretation of a statute Congress charged it with administering if the statute is silent or ambiguous on the question at hand and the agency's interpretation is not arbitrary, capricious, or manifestly contrary to the statute.” Efagene v. Holder , 642 F.3d 918, 920 ( 10th Cir. 2011) (citation omitted). But not all agency interpretations are created equal. We will defer to the

4 The terms of § 1252 (a)(2)(D) provide: Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of co nstitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in acco rdance with this section.-9- agency’s interpretation only when “the ag ency acts in a lawmaking capacity.” Id. “When the interpretation occurs in an adjudication, the agency acts in a lawmaking capacity if the decision is binding precedent within the agency.” Id. The BIA order dismissing Mr. Barrera’s appeal was author ed by a single BIA member, as opposed to a panel of members. A single BIA member may not “create rules of law that bind the ag ency in other cases.” Carpio v. Holder , 592 F.3d 1091, 1097 (10th Cir. 2010) (citing 8 C.F.R. § 1003.1(e)(6)(ii), (g)). Notwith standing this general rule,

“ Chevron deference may apply to a nonprecedentia l BIA decision if it relies on prior BIA precedent addressing the same question.” Efagene , 642 F.3d at 920. And such is the case here. In finding that Mr. Barrera was statut orily ineligible for ca ncellation of removal, the authoring BIA member invoked the BIA’s precedential statements in Romalez– Alcaide and Avilez–Nava interpreting § 1229b(b)(1)(A). Absent a finding that the reasoning of Romalez–Alcaide and Avilez–Nava is “arbitrary, capricious, or manifestly contrary to the statute,” Chevron , 467 U.S. at 844, we will uphold the BIA’s determination in this case. Where, as here, the BIA issu es a brief order on the mer its by a single BIA member under 8 C.F.R. § 1003.1(e)(5), that decision “constitutes th e final order of removal under 8 U.S.C. § 1252(a).” Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). We limit our grounds for affirmance to those ar ticulated in the BIA’s final order. Nevertheless, “when seeking to understand th e grounds provid ed by the BIA, we are not precluded from consulting the [I mmigration Judge]'s more comp lete explanation of those same grounds.” Id. Finally, in reviewing the BIA’ s factual findings, we are bound by-10- Congress’s directive that “ad ministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Guided by these precepts—and not un mindful of our jurisdictional limitations—we now turn to the arguments raised by Mr. Barrera in his petition for review. B. Analysis 1. The BIA’s Interpretation of the Continuous-Physical-Presence Standard Mr. Barrera first challenges the BIA’s application of Romalez–Alcaide to the continuous-presence inquiry. In Romalez–Alcaide , the BIA consider ed § 1229b(d)(2), which provides: An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsec tion[] (b)(1) . . . of this section if the alien has departed from the United States for any period in excess of 90 days or for any periods in th e aggregate exceeding 180 days. The BIA concluded that the time periods set fo rth in the statute did not comprise “the exclusive measure of what constitutes a brea k in continuous physical presence,” holding instead “that a departure that is compelled under threat of the institu tion of deportation or removal proceedings is a break in physical presence for purposes of section [1229b(b)(1)(A)]” cancellation. Romalez–Alcaide , 23 I. & N. Dec. at 424. Mr. Barrera disagrees, arguing that the statutory periods are exclusive. Until the Government charged Mr. Barrera w ith removability in March of 2007, he had lived in the United States for almost sevent een years. During that time, he left the country only once: from June to August of 2004. His to tal time absent from the United-11- States during those seventeen years amounted to about sixty-six days, a number well within the limits prescrib ed by the statute. Yet this fact is of little comfort to Mr. Barrera, for the BIA does not construe the stat utory language as establishing “the exclusive rule respecting all departures,” such that it would “literally forgive a ny single departure of 90 days or less or aggregate depart ures of 180 days or less.” Id. at 425. Because this issue raises a question of statutory construc tion, we have jurisdiction over its resolution under § 1252(a )(2)(D). By our count, six of our sister circuits have given deference to Romalez–Alcaide under the principles announced in Chevron

. See Ascencio–Rodriguez v. Holder , 595 F.3d 105, 112 -13 (2d Cir. 2010); Mendez–Reyes v. Att’y Gen’l , 428 F.3d 187, 191-92 (3d Cir. 2005); Morales–Morales v. Ashcroft , 384 F.3d 418, 427 (7th Cir. 2004); Palomino v. Ashcroft , 354 F.3d 942, 944-45 (8th Cir. 2004); Mireles–Valdez v. Ashcroft , 349 F.3d 213, 217-18 (5th Cir. 2003); Vasquez–Lopez v. Ashcroft , 343 F.3d 961, 972-73 (9th Cir. 2003) (per curiam). Th ese courts have generally concluded that, although § 1229b (d)(2) sets out certain time limits establishing when continuous physical presence is deemed broken, the statute is silent as to whether other events could also end a nonlawful resident’s otherwise unbroken period of continuous physical presence. We now jo in those courts in holding th at the BIA’s interpretation of the continuous-physical-presen ce statute, as expressed in Romalez–Alcaide and further developed in Avilez–Nava , 5 is reasonable and entitled to Chevron deference.

5 Avilez–Nava concerned a nonlawful resident who briefly left the United States and was then refused admittance by immigration offi cers upon her return to the bord er. The BIA held Cont. . .-12- Section 1229b(d)(2) does not directly sp eak to whether a voluntary departure under threat of the institution of removal proceedings can break a nonlawful resident’s continuous presence for purposes of cancellation of removal. In other words, we find the statute does not reveal “the unambiguous ly expressed intent of Congress.” Chevron , 467 U.S. at 843. Having established that “Congr ess has not directly addressed the precise question at issue,” we must next decide “w hether the agency’s answer is based on a permissible construction of the statute.” Id. In doing so, we acknowledge “that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entr usted to administer.” Id. at 844. The subsection heading of § 1229b(d)(2) is captioned “Treatment of certain breaks in presence.” In Romalez–Alcaide , the BIA reasoned that in specifically singling out “certain breaks,” Congress thereby “strongly im pl[ied] that there can be ‘breaks’ other than those which exceed the 90- or 180-day st atutory limits.” 23 I. & N. Dec. at 425. Likewise, “[t]he objective command that depa rtures of certain lengths ‘shall’ break continuous physical presence implies that s horter departures are acceptable, but it does not specifically exempt all such shorter departures.” Id. at 426 (quoting § 1229b(d)(2)). Cont.________________ that an immigration official's refusal to admit an alien at a land border port of entry will not constitute a break in the alien's continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of exped ited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected to any other formal, documented process pursuant to which the alien was determined to be in admissible to the United States. (emphasis added). 23 I. & N. Dec. at 805-06.-13- In essence, the BIA found the purpose of vol untary return in lieu of removal proceedings to be incompatible with a statute giving a n onlawful resident the benefit of discretionary cancellation of removal: “The clear objective of an enforced departure is to remove an illegal alien from the United States . There is no legitimate e xpectation by either of the parties that an alien could illegally reenter and resume a period of continuous physical presence.” Id. at 429. We do not find the BIA’s c onstruction of § 1229b(d)(2 )’s continuous-physicalpresence language to be “manifes tly contrary to the statute.” Chevron , 467 U.S. at 844. The agency’s interpretation is, in a word, reasonable. And “[a]s long as the interpretation is reasonable, we must defer to the agency's construction of the statute even though it may not conform with how we would interpre t the statute in an original judicial proceeding.” Tapia Garcia v. Holder , 237 F.3d 1216, 1220 (10th Cir. 2001). The agency’s interpretation need not persuade w ith elegant clarity of thought; it need not speak to our highest sense of fair dealing; it need not even appear to us very wise. Our deference is not so dearly purchased. We require only reasonableness from the agency. The BIA has at least cleared th at hurdle in interpreting an d applying § 1229b(d)(2) in Romalez–Alcaide . Accordingly, we defer to the rationale employed by the BIA in concluding that Mr. Barrera’s return to Mexico under threat of removal in 2004— although less than ninety da ys in duration—broke his continuous physical presence in this country. 2. Discretionary Aspects of the BIA’ s Decision on Cancellation of Removal We next consider Mr. Barrera’s argum ent that immigration officers did not-14- adequately inform him of his rights before he requested return to Mexico in 2004. Mr. Barrera claims he was not subject to a fo rmal, documented process while detained in Government custody: the relevant paperwork was flawed, the immigration officers were coercive, and he was never told that his retu rn was in lieu of removal proceedings. The gravamen of Mr. Barrera’s argument is that he could not voluntarily have left the United States under threat of removal proceedings— by that very act, br eaking his continuous presence—if he was not meanin gfully informed of his lega l rights and the consequences of the choices presented to him on the Spanish-language Form I-826. This argument is not properly before us in disposing of the instant petition for review. We lack jurisdiction to consider “the discretionary aspects of a decision concerning cancellation of removal.” Arambula–Medina , 572 F.3d at 828. The BIA’s determination on voluntariness in this case implicated prec isely such an exercise of agency discretion. “The determ ination of whether a particular decision is discretionary or non-discretionary is made on a case-by-case basis.” Perales–Cumpean v. Gonzales , 429 F.3d 977, 982 (10th Cir. 2005 ). We have characterized a discretionary BIA decision as one “that involve[s] a ‘judgment call’ by the agency, or for which there is ‘no algorithm’ on which review may be based.” Id. (quoting Sabido Valdivia , 423 F.3d at 1149) (quoting Morales Ventura v. Ashcroft , 348 F.3d 1259, 1262 (10th Cir. 2003)). Mr. Barrera’s arguments on voluntariness are fact-bound. Bu t the resolution of those arguments “involves more than simply plugging facts into a formula.” Perales– Cumpean , 429 F.3d at 982. The BIA was tasked with ascertaining wh ether Mr. Barrera’s 2004 departure was voluntary and whether he made that decision knowingly and-15- intelligently. Fourth Amendment jurisprude nce teaches that “[v]oluntariness is a question of fact to be determin ed from all the circumstances.” Schneckloth v.
Bustamonte , 412 U.S. 218, 248-49 (197 3). We think this princi ple has equal applicability to the immigration-law context. Voluntarin ess follows no formula. It does not have a prefabricated, “mechanically a pplicable” meaning readily adduc ible in any situation. Id. at 224. Definitive determinations on issues of voluntariness must depend on the judicious application of discretionary judgment. In two recent unpublished decisions, this court has said that § 1252(a)(2)(B)(i) bars review of whether an en forced departure was voluntary. 6 In Salas–Acuna v. Holder , 383 F. App’x 783, 7 88 (10th Cir. 2010), we concluded that whether a departure was “under a threat of deportation is a factual question underlying a di scretionary aspect of the BIA's decision concerning cancellation of removal which we are prohibited from reviewing under § 1252(a )(2)(B)(i).” And in de la Cruz Zacarias v. Holder , 367 F. App’x 932 (10th Cir. 2010), which is particular ly analogous to this case, we likewise determined that the question of voluntarin ess was a factual matter, noting that the petitioner’s arguments were “especially fact-b ound” and that the BI A’s decision “turned on the factual record”—in particular, on wh ether “the paperwork process was rushed” and whether the petitioner was adequately informed of his rights. Id. at 936 (quotations omitted). Endorsing the reasoning of Salas–Acuna and de la Cruz Zacarias , we

6 Although these unpublished cases are not precedential, we find them persuasive and cite them for that value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.-16- acknowledge that the issue of voluntariness in cancellation-of-remova l cases implicates a fact-driven inquiry that necessarily involves the use of discretion on the part of the agency. By statutory command, these discretionary determin ations lie beyond the reach of our review. 7 3. The Cross-Examination of Officer Griggs Finally, we turn to Mr. Barrera’s argument that the Immigration Judge violated his due-process rights by denying his motion to require the in-person testimony of Rexall Griggs, the immigration officer who prepared Mr. Barrera’s 2004 departure paperwork. 8 Removal proceedings must conform to the fundamental constitutional requirements of procedural due process: “[N]o person shall be deprived of hi s liberty withou t opportunity, at some time, to be heard, be fore such [administrative] offi cers, in respect of the matters upon which that liberty depends . . . .” The Japanese Immigrant Case , 189 U.S. 86, 101

7 Implicit in this statement is our recognition th at “‘over no conceivable subject is the legislative power of Congre ss more complete than it is ove r’ the admission of aliens.” Fiallo v. Bell , 430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan , 214 U.S. 320, 339 (1909)). Because of this, our power of review over the executive branch’s immigrati on decisions is “narrow.” Hampton v. Mow Sun Wong , 426 U.S. 88, 101 n.21 (1976). A nd “in the current state of immi gration law,” this power is often so straitened that frequently “we are left with no choice” at all in jurisdictional matters. Alvarez–Delmuro v. Ashcroft , 360 F.3d 1254, 1257 (10t h Cir. 2004) (Lucero, J., concurring in judgment).

8 Although the Government contends that Mr . Barrera has not challenged this ruling on petition for review, we disagree. See Pet’r’s Opening Br. at 17-18. But we also disagree with Mr. Barrera that the BIA failed to discuss his argument that the Immigration Judge’s ruling violat ed his due-process rights. See R. at 9 (“Moreover, we agree with the Immigration Ju dge that the ICE agent’s te lephonic testimony sufficed as admissible evidence wh ere the respondent had a mean ingful opportunity to crossexamine him and has not dem onstrated any prejudice.”).-17- (1903). Because cancellation of removal is a purely discretionary fo rm of relief granted to one with no constitutional ri ght to remain in th e country, “the only pr otections afforded are the minimal procedural due process right s for an ‘oppo rtunity to be heard at a meaningful time and in a meaningful manner.’” Arambula–Medina , 572 F.3d at 828 (quoting de la Llana Castellon v. I.N.S. , 16 F.3d 1093, 1096 (10th Cir. 1994)). Officer Griggs, a Senior Special Agen t with U.S. Immigration and Customs Enforcement, testified over the telephone at Mr. Barrera’s hearing before the Immigration Judge in Salt Lake City on Ma y 6, 2009. At the time of th e hearing, Officer Griggs was stationed in Tucson, Arizona. Mr. Barrera cl aims he was deprived of his right to a meaningful cross-examination of Officer Gri ggs because his demeanor as a witness could not be scrutinized over the telephone. Mr. Barrera argues that a visual evaluation of Officer Griggs was essential to assessing the credibility of his testimony at the hearing. In this case, we do not believe that the fact Officer Griggs testified by telephone offended Mr. Barrera’s right to procedural due process at his removal hearing. We emphasize that “[r]emoval proceedings ar e civil in nature, and the extensive constitutional safeguards attending crim inal proceedings do not apply.” Schroeck v. Gonzales , 429 F.3d 947, 951 (10th Cir. 2005). In a removal proceeding, “the alien shall have a reasonable opportunity to examine th e evidence against th e alien, to present evidence on the alien' s own behalf, and to cross-exam ine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B); see also 8 C.F.R. § 1240.10(a)(4). Fundamental fairness demands nothing less. But it does not automa tically follow that every witness must be physically present for cross-examination in a removal proceeding.-18- Department of Justice regulations expressl y permit an Immigration Judge to conduct telephonic hearings. See 8 C.F.R. § 1003.25(c). And this is not unique to immigration cases. Federal Rule of Civil Procedure 43 (a) contemplates that a judge “may permit testimony in open court by contemporaneous transmission from a different location.” Telephonic testimony is not categorically inappropriate in civil proceedings. We agree that in the instan t case the nonlawful resident was given the opportunity for a full and thorough examination of the w itness, and his right to procedural due process was not violated here by th e taking of telephonic testimony. See Akinwande v. Ashcroft , 380 F.3d 517, 521-22 (1st Cir. 2004); Beltran–Tirado v. I.N.S. , 213 F.3d 1179, 1185-86 (9th Cir. 2000). That said, we sh ould not be un derstood as wholeheartedly endorsing the use of telephonic testimony as a readily interchangeable substitute for inperson, in-court testimony in re moval proceedings. The ability to evaluate a witness’s demeanor still may serve as an element of the mix that makes up a thorough search for the truth, but we hold th at this is not always a sine qua non factor. We note that Federal Rule of Civil Procedure 43(a), while giving a measure of legitimacy to telephonic and video testimony, does so at arm’s length and only “[f]or good cause in compelling circumstances and with appropriate safeguards. ” The Supreme Court has said that “[i]n almost every setting where impo rtant decisions turn on ques tions of fact, due process requires an opportunity to confront a nd cross-examine adverse witnesses.” Goldberg v. Kelly , 397 U.S. 254, 269 (1 970). Here, however, we are persuaded that this removal proceeding is not the type of se tting that required the witness to be confront ed in person by the nonlawful resident contes ting removal. But we do not disclaim the possibility that,-19- under facts not presented here, the lack of in-person confrontation might so undercut the purposes of cross-examination as to depriv e a nonlawful resident of the fundamental protections of procedural due process. In this case, it is not disputed that O fficer Griggs was hund reds of miles away from the site of Mr. Barrera’s removal hear ing. His absence from the hearing was legitimate and not contrived. Officer Griggs was under oath, and th e record shows that counsel for Mr. Barrera ex amined him at length. See R. at 316-41, 346-47. The Immigration Judge found that Mr. Barrera had a meaningful o pportunity to crossexamine Officer Griggs, observing that there had been “no impediment to [Mr. Barrera] asking the type of questions that he would elect to ask if the agent were to be physically present.” See R. at 31. “To prevail on a due proce ss claim, an alien must establish not only error, but prejudice.” Alzainati v. Holder , 568 F.3d 844, 851 (1 0th Cir. 2009). It was not error for the Immigra tion Judge to allow telephonic testimony, and Mr. Barrera simply has not persuasively established any prejudice suffe red by him as a result of it. 4. Crimes Involving Moral Turpitude Because Mr. Barrera failed to satisfy th e continuous-presence requirement for eligibility for cancellation of re moval, we do not reach the BIA’s determination that Mr. Barrera was also ineligible for cancellation because his 1993 Cali fornia conviction was for a crime involvi ng moral turpitude. III. CONCLUSION For the foregoing reasons, the petition for review is DISMISSED IN PART for lack of jurisdiction, and DENIED IN PART, as stated in the INTRODUCTORY-20- STATEMENT. Mr. Barrera’s motion for leav e to proceed in forma pauperis is
GRANTED.