UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LIVIA JUAREZ-MORALES, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 19-9571 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ After an immigration judge (IJ) denied her application for cancellation of removal and ordered her removed to Mexi co, Livia Juarez-Mor ales (Ms. Juarez) appealed to the Board of Immigration App eals (BIA). The BIA dismissed her appeal and denied her motions seeking a remand to the IJ. Ms. Juar ez petitions for review of the BIA’s order. Exercising jurisdicti on under 8 U.S.C. § 1252(a), we deny the petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 2, 2020 Christopher M. Wolpert Clerk of Court2 I. A. Ms. Juarez is a native and citizen of Mexico. She entered the United States on or about August 26, 1997. She is single a nd has four United States citizen children, born between 1999 and 2012. On April 12, 2011, the Department of Homeland Security (DHS) served a Notice to Appear (NTA) on Ms. Juarez. The NTA alleged th at she had arrived in the United States without being ad mitted or paroled after inspec tion. It ordered her to appear before an IJ at a date and time “to be set.” R. at 498. The DHS later served a Notice of Hear ing (NOH) on Ms. Juarez requiring her appearance at an IJ hear ing scheduled for May 25, 20 11. She appeared at the hearing. At later hearings she conceded that she was removable and designated Mexico as the country of removal. She al so applied for cancella tion of removal. In March 2017, the IJ held a hearing on Ms. Juarez’s amended application for cancellation of removal. She te stified at the hearing in supp ort of the application. Ms. Juarez stated that sh e is her children’s primar y provider and caretaker. She has a job and cleans houses on her ow n to earn money for their care. The children’s biological father, Mr. Gonzalez, does not provide fi nancial support and does not take care of the children. Ms. Juarez testified she has been in the United States si nce 1997, except for a brief departure in 2004. On December 4, 2004, the border patrol stopped her in Arizona. One of her sons wa s still breastfeeding, and th e agents told her she would3 be placed in a different cell from her childr en. To avoid this separation, she agreed to voluntarily return to Mexico. She left, bu t she testified that she illegally reentered the United States with her children the next afternoon, December 5. According to Ms. Juarez, her three younger children ha ve no medical issues. But her oldest son, Alexander, has a learni ng disability. He ha s received speech and reading therapy, had an Individual Edu cation Plan in school, and has an ongoing problem with poor handwriting. He would like to be a teacher, but Ms. Juarez doubts that goal would be possibl e for him to achieve. Ms. Juarez stated all he r children would have a di fficult time in Mexico because it is “a very violen t place” and they are “used to a very comfortable life, an easier life.” Id. at 228. They would be “very limited” and they likely would not receive “the same type of schooli ng they are provided for here.” Id. B. The Attorney General may grant cance llation of removal to a noncitizen who is subject to removal from the United States if the noncitizen (A) has been physically pr esent in the United St ates for a continuous period of not less than 10 years imme diately 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 [8 U.S.C. §§] 1182(a)(2), 1227(a)(2), or 1227(a)(3) . . . ; and (D) establishes that removal would result in exceptional and extremely unusual hardship to [her] spouse, pare nt, or child, who is a citizen of the United States or an alien lawfully admitted for perm anent residence. 8 U.S.C. § 1229b(b)(1).4 Although he found Ms. Juarez’s testim ony credible, the IJ denied cancellation relief because he concluded she had failed (1) to prove she had been continuously physically present in the Un ited States for the requisite ten-year period, and (2) to establish that her removal would result in exceptional and extremely unusual hardship to her qualifying relatives. He ordered her removed to Mexico but granted her the privilege of voluntary depa rture in lieu of removal. Ms. Juarez appealed to the BIA. Wh ile her appeal was pending, she filed two motions to remand to the IJ. In her fi rst motion, she argue d her case should be remanded for termination under Pereira v. Sessions , 138 S. Ct. 2105 (2018). She contended that because the NT A failed to include the date and time of the hearing, the immigration court had never acquired ju risdiction and could not have ordered her removed to Mexico. In her second motion, she argued that her attorney had provided ineffective assistance of counsel in c onnection with voluntary departure and the physical-presence issue. 1 The BIA upheld the IJ’s hardship and physical-presence findings. It denied Ms. Juarez’s motion to remand for terminati on, finding that she did not have a valid Pereira argument. It also denied her seco nd motion to remand, reasoning she failed to show that new evidence she presente d concerning her phys ical presence was

1 Ms. Juarez apparently did not receive a copy of the IJ’s decision in time to post the required bond for voluntary departur e. She attributed this failure to her counsel’s ineffectiveness.5 previously unavailable, and fa iled to establish an ineffec tive-assistance claim. The BIA did, however, reinstate the voluntary departure period. II. A. Where, as here, a single BIA member af firmed the IJ’s decision in a brief order, we review the BIA’s opinion, but “when seeking to understand the grounds provided by the BIA, we ar e not precluded from consulting the IJ’s more complete explanation of those same grounds.” Neri-Garcia v. Holder , 696 F.3d 1003, 1008-09 (10th Cir. 2012) (quota tion marks omitted). We review the BIA’s legal determinations de novo a nd its findings of facts fo r substantial evidence. See Luevano v. Holder , 660 F.3d 1207, 1211 (10th Cir. 2011) . We review its denial of a motion to remand under the deferentia l abuse-of-discretion standard. Neri-Garcia , 696 F.3d at 1009. B. Ms. Juarez argues the BIA should ha ve granted her motion to remand for termination of proceedings under Pereira . In Pereira , the Supreme Court held that a putative “notice to appear” that failed to designate the tim e or place of a noncitizen’s removal proceedings was not a “notice to appear under section 1229(a)” of the immigration statutes. Pereira , 138 S. Ct. at 2114. Such a notice therefore did not trigger the stop-time rule e nding the noncitizen’s period of continuous presence in the United States for purposes of an app lication for cancellation of removal. See id. at 2113-14; 8 U.S.C. § 1229b( d)(1). Ms. Juarez contends the NTA served on her,6 which did not designate the da te and time of her hearing, was insufficient to confer jurisdiction on the immigration court. We recently re jected similar Pereira -based jurisdictional challenges in published decisions. See Martinez-Perez v. Barr , 947 F.3d 1273, 1277-78 (10th Cir. 2020); Lopez-Munoz v. Barr , 941 F.3d 1013, 1017-18 (10th Cir. 2019). We therefore reject her jurisdictional argument. C. We next consider the BIA’s determinati on that Ms. Juarez failed to meet the ten-year physical presence re quirement for cancellation of re moval. Special statutory rules govern this determination. First, “any period of . . . c ontinuous physical presence in the United States sh all be deemed to end . . . when the alien is served a notice to appear.” 8 U.S.C. § 1229b(d)(1). Ms. Juarez concedes the relevant ten-year period ended on April 12, 2011, when the NTA was served on her. 2 Second, “[a]n alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in ex cess of 90 days or for any periods in the aggregat e exceeding 180 days.” Id. § 1229b(d)(2). Ms. Juarez concedes she left the United States on D ecember 4, 2004. She testified that she

2 Although her motion to remand included a contention that the deficient NTA did not stop the accrual of her physical pr esence, Ms. Juarez does not renew that argument on appeal. See Pet. Opening Br. at 18-19 (“Ms . Juarez was served an NTA on April 12, 2011, and so she must demonstr ate continuous physi cal presence in the United States since April 12, 2001 .” (emphasis added)). We will not make a Pereira -based argument for her that sh e failed to make to us. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10t h Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised . . . in an appellant’s opening brief.”).7 returned to the United States the next afternoon. Alt hough the IJ found her testimony credible, he deemed it insuff icient to establish continuous physical presence after her voluntary return to Mexico. The IJ found Ms. Juarez could reas onably have obtained an affidavit from the father of her children, who was in th e United States at the time of her voluntary return, along with affidavi ts from her former housekeeping clients, that would have corroborated her story a bout returning after a one-day absence. Given her failure to produce such eviden ce, and the lack of other documentary evidence in the record, the IJ concluded she failed to meet her burden of proof. The BIA affirmed this analysis. Ms. Juarez argues in conclusory terms that she “clearly met her burden of establishing continuous presence through her credible testimony” and “needed no further corroboration of her clear and concise testimony.” Pet. Opening Br. at 19 (citation and internal quotation marks om itted). We have rejected similar credibility-based arguments. See Gutierrez-Orozco v. Lynch , 810 F.3d 1243, 1246 (10th Cir. 2016) (“[E]ven cred ible testimony may not be pe rsuasive or sufficient in light of the record as a whole” to meet the applicant’s burden of proof (internal quotation marks omitted)). The IJ conc luded Ms. Juarez provi ded no documentation that established her presence in the Un ited States during the period immediately following her voluntary return to Mexico. Her evidence is insu fficiently compelling to cause us to conclude “that no reasonabl e factfinder could find as the BIA did.” Id. at 1247 (internal quotation marks omitted).8 Ms. Juarez cites 8 U.S.C. § 1229b(b )(2)(D), which requi res the Attorney General to “consider any credible evidence relevant to the application.” (emphasis added). 3 But that statute goes on to say that “[ t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” Id. (emphasis added). We lack jurisdiction to review the Attorney General’s discreti onary decision concerning the weight of the evidence. See id. § 1252(a)(2)(B)(ii); see also Perales-Cumpean v. Gonzales , 429 F.3d 977, 984-85 (10th Cir. 2005) (explai ning limited judicial review of discretionary decisions under § 1229b(b)(2)(D)). Ms. Juarez also argues that because the Attorney Ge neral must consider any credible evidence releva nt to her application, the IJ could not require her to present specific items of evidence, such as affidavits, to support her claim. See Pet. Opening Br. at 18 & n.6. But her reading of the statute is plainly in consistent with the authority Congress has given the IJ to require corroborating evidence. See 8 U.S.C. § 1229a(c)(4)(B) (“Where the immigration judg e determines that the applicant should provide evidence which corroborates otherw ise credible testim ony, such evidence must be provided unless the a pplicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.”). The IJ’s duty to determine whether corrobora ting evidence exists and can reasonably be obtained

3 The cited language is part of th e special rule for battered spouses, see generally id. § 1229b(b)(2). To the extent it a pplies to Ms. Juarez’s case, it does not provide a basis for reversal, for the reasons stated.9 obviously permits him to determine what ev idence is required, ra ther than simply leaving it to the petitioner to “provide cr edible evidence of [h er] own choosing,” as Ms. Juarez argues. Pet. Opening Br. at 18. Ms. Juarez further argues that her volunt ary return to Mexico could not have broken her continuous presen ce because she (1) was not a dvised of her right to a hearing before an IJ and (2) did not knowingly and voluntarily accept voluntary return. Citing evidence concerning the circ umstances of her 2004 departure, the BIA rejected this argument. It concluded th e formal, documented process accorded to Ms. Juarez satisfied the requirements for a break in physical presence. See R. at 5. In her opening brief Ms. Juarez reiterates her argument to the BIA on this point nearly word for word, without explaining w hy she believes the BIA erred. In any event, we lack jurisd iction to review the BIA’s determination. See Barrera-Quintero v. Holder , 699 F.3d 1239, 1246 (10t h Cir. 2012) (concludi ng this court lacked jurisdiction over noncitizen’s cl aim that the BIA erred in finding a break in physical presence due to voluntary retu rn, in spite of his argumen t that immigration officers “did not adequately inform him of his ri ghts . . . he was not subject to a formal, documented process while detained . . . the relevant paperwork was flawed, the immigration officers were coer cive, and he was never told that his return was in lieu of removal proceedings,” reasoning that “[t]he BIA’s determination on voluntariness . . . imp licated . . . [a non-revi ewable] exercise of agency discretion”). Finally, Ms. Juarez co mplains she provided to the BIA the missing corroborative evidence in the form of an affidavit from th e father of her children, but10 the BIA refused to remand to the IJ to revi ew it. In her remand motion she asserted her counsel had been ineffective in fa iling to obtain evidence to establish her continuous physical presence . The BIA concluded (1) it would not review evidence submitted for the first time on appeal; (2) in view of Ms. Juarez’s failure to demonstrate the required hardship, the affida vit was not likely to change the outcome of her case; (3) she had fail ed to show the new evidence was previously unavailable; (4) she had failed to show that she d iligently pursued her in effective-assistance claim; and (5) she had failed to comply sufficiently with the requirements of Matter of Lozada , 19 I. & N. Dec. 637, 639 (BIA 1998), fo r an ineffective-as sistance claim. Ms. Juarez challenges (at most) th e first two of these reasons. See Pet. Opening Br. at 22-23. Assuming the BIA’ s refusal to review her evidence to determine whether it justified a remand to the IJ was erroneous, see Perales-Cumpean , 429 F.3d at 985-86, she has waived her challenge to other independently adequate reasons th e BIA gave for denying her motion , see Kabba v. Mukasey , 530 F.3d 1239, 1248 (10th Cir. 2008). We therefor e affirm the denial. D. Ms. Juarez also presents an extende d, multi-faceted argument challenging the BIA’s hardship determination, and asserti ng we have jurisdiction to review that determination. See Pet. Opening Br. at 24-50. Th e government responds that we lack jurisdiction to consider most if not all of Ms. Juarez’s argum ent. We need not address these issues. Ev en a successful challenge to the BIA’s hardship determination would not es tablish Ms. Juarez’s entitl ement to cancellation of11 removal, given that her challenge to the BIA’s continuous-presence finding has failed. She has therefore shown no basi s for reversal of the BIA’s decision. III. The petition for review is denied.

Entered for the Court
Mary Beck Briscoe Circuit Judge