UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ GERARDO ZAVALA-RAMIREZ, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent.

------------------------------ RETIRED IMMIGRATION JUDGES; FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS; HONORABLE STEVEN ABRAMS; HONORABLE ESMERALDA CABRERA; HONOR ABLE TEOFILO CHAPA; HONORAB LE JEFFREY S. CHASE; HONORAB LE GEORGE T. CHEW; HONORABLE MATTHEW J. D’ANGELO; HONORABLE BRUCE J. EINHORN; HONORABLE CECELIA ESPENOZA; HONORABLE NOEL FERRIS; HONORABLE JOHN F. GOSSART, JR.; HON ORABLE MIRIAM HAYWARD; HONORABLE REBECCA JAMIL; HONORABLE WILLIAM P. JOYCE; HONORAB LE CAROL KING; HONORABLE ELIZAB ETH A. LAMB; HONORABLE MARGARET MCMANUS; HONORABLE CHARLES PAZAR; HONOR ABLE LAURA RAMIREZ; HONORABLE JOHN W. RICHARDSON; HONORABLE LORY D. ROSENBERG; HON ORABLE SUSAN ROY; HONORABLE ANDREA H. No. 18-9559 (Petition for Review) FILED United States Court of Appeals Tenth Circuit 

### October 22, 2019
Elisabeth A. Shumaker Clerk of Court2 SLOAN; HONOR ABLE PAUL W. SCHMIDT; HONORABLE WILLIAM VAN WYKE; HONORABLE GUSTAVO D. VILLAGELIU; H ONORABLE POLLY A. WEBBER, Amici Curiae.

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , HOLMES , and MORITZ , Circuit Judges.

________________ _________________ Gerardo Zavala-Ramirez, a nativ e and citizen of Mexico, seeks review of a decision by the Board of Immigra tion Appeals (BIA) denying his application for cancellation of removal because he did not meet the continuous- presence requirement under 8 U.S.C. § 1229b(b )(1)(A). Exercising jurisdiction under 8 U.S.C. § 1252(a), 1 we deny his petition because the BIA ’s decision was supported by s ubstantial evidence. Background Zavala-Ramirez entered the Unite d States without documentation in 1999. In late 2002, he traveled to Mexico to visit his ill father and returne d to the United States

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Although § 1252(a)(2)(B) denies a ny court jurisdiction to revi ew cancellation-of-removal judgments, w e narrowly interpret this s tatute “as referring to the discretionary aspects of a decision.” Barrera-Quintero v. Holder , 699 F.3d 1239, 1243, 1246–47 (10th Cir. 2012). And the continuous-presence req uirement is not a discretionary aspect of a cancellation decision. See Gutierrez-Orozco v. Lynch , 810 F.3d 1243, 1245–46 (10t h Cir. 2016) (exerci sing jurisdiction ov er continuouspresence issue when reviewing BIA order).3 sometime in 2003. The exact departure and reentry dates of this trip are at issue on appeal. In 2012, the Department of Homel and Security charged Zavala-Ram irez with being “in the Unites States wit hout being admitted” and ordered him to appear before an Immigration Judge (IJ). R. 36. He conceded removability and sou ght cancellation of removal or voluntary departure . To be eligible for cancellation of removal, a nonpermanent resident must esta blish, among other things, that he or she “has been physically present in the Unite d States for a continuous period of not less than [ten] years immediately preceding the date o f such application.” § 1229b(b) (1)(A). Absences of longer than 90 days will break an otherwise continuous presence . § 1229b(d)(2). At the hearing before the IJ, Zav ala-Ramirez introduced documen tary evidence, and he and his uncle testified . Although the IJ found their tes timony credible, it determined that Zavala-Ramirez c ould not establish that he was out of the United States for no more than 90 days beginn ing in late 2002. Thus, the IJ c oncluded that ZavalaRamirez failed to establish th e required continuous presence, a nd it denied his application for cancellation of removal. Zavala-Ramirez appealed to the BIA, arguing the IJ applied the wrong evidentiary standard when determining that h e did not meet the continuous-p resence requirement. A single member of the BIA upheld the IJ’s decision, restating an d agreeing with the IJ’s4 reasoning and finding that the IJ u sed the correct evidentiary standard. Zavala-Ramirez then petitioned for review in this court. Analysis In his briefs, Zavala-Ramirez argues both that (1) the BIA err ed in determining he did not meet the continuous-prese nce requirement and (2) neithe r the IJ nor the BIA had subject-matter jurisdiction becaus e Zavala-Ramirez received a d efective notice to appear. But at oral argument, counsel fo r Zavala-Ramirez expressly waiv ed the jurisdictional argument. Thus, we will not consid er that argument on appeal. See Lynch v. Bd. of Cty.
Comm’rs , No. 18-7020, 2019 WL 4233382, at *11 n.15 (10th Cir. Sept. 6, 2019) (unpublished) (declining to con sider issue that counsel “expres sly waive[d]” at oral argument). Also at oral argument, counsel fo r Zavala-Ramirez asserted thatbecause ZavalaRamirez’s notice to appear was d efective, it did not trigger th e stop-time rule and ZavalaRamirez therefore met the con tinuous-presence requirement. And counsel further insisted that this stop-time argument appears in Zavala-Ramirez’s openin g brief. We do not disagree that Zavala- Ramirez’s opening brief mentions the stop-time rule. But it does so only in the context of his now-abandoned j urisdictional argument. Thus, to the extent that Zavala -Ramirez’s counsel attempted to enlist this stop-time theory in support of the new a ssertion that the defective notic e to appear did not stop the continuous-presence clock, we de cline to consider this late-blo oming argument. See City of Colo. Springs v. Solis , 589 F.3d 1121, 1135 n.5 (10t h Cir. 2009) (“[A]rguments not raised in the opening brief are waived.”); Fed. Ins. Co. v. Tri-State Ins. Co. , 157 F.3d5 800, 805 (10th Cir. 1998) (“Issues raised for the first time at oral argument are considered waived.”); cf. United States v. Nelson , 868 F.3d 885, 891 n.4 (10t h Cir. 2017) (noting that forfeiture rule applies not only when appellant raises wholly “ new” argument on appeal, but also “when ‘a litigant changes to a new theory on appeal,’” even if new theory “falls under the same general category as an argument” appellant raise d below (emphasis added) (quoting Lyons v. Jefferson Bank & Tr. , 994 F.2d 716, 722 (10th Cir. 1993))). As such, we address only the contin uous-presence issue in this app eal. When, as here, a single-member B IA panel affirms an IJ’s decisi on, we “review[] both the decision of the BIA and any parts of the IJ’s decision relied on by the BIA in reaching its conclusion.” Razkane v. Holder , 562 F.3d 1283, 1287 (10th Cir. 2009). Such a review of the IJ’s decision “i s especially appropriate” in th is instance, “where the BIA incorporates by reference the IJ’s rationale [and] repeats a co ndensed version of its reasons while also relying on th e IJ’s more complete discussion .” Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). We review the BIA’s findings of f act under the substantial-evid ence standard. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Ci r. 2004). Under that standard, “o ur duty is to guarantee that factual dete rminations are supported by re asonable, substantial[,] and probative evidence considerin g the record as a whole.” Elzour , 378 F.3d at 1150. More specifically, “[t]o obtain reversal of factual findings, a peti tioner must show the evidence he presented ‘was so compelling that no reasonable factfinder c ould find as the BIA did.’” Gutierrez-Orozco , 810 F.3d at 1245 (quoting Rivera-Jimenez v. I.N.S. , 214 F.3d 1213, 1216 (10th Cir. 2000)). To me et this demanding standard h ere, Zavala-Ramirez6 must show that no reasonable fact finder could determine—as the BIA did—that he failed to demonstrate he was out of the c ountry for no more than 90 da ys when he visited his father in Mexico from late 2002 to early 2003 . See § 1229b(b)(1)(A) (describing continuous presence requireme nt); 8 U.S.C. § 1229a(c)(4)(A) (placing burden of proof on applicant seeking prot ection from removal). In attempting to establish his c ontinuous presence below, Zaval a-Ramirez submitted various pieces of evide nce. Both he and his uncle tes tified at the hearing, and Zavala-Ramirez also provided docu mentary evidence, including a criminal-history log and an employer letter. The IJ fo und Zavala-Ramirez and his unc le to be credible, but neither the IJ nor the BIA found t he testimony and remaining re cord sufficiently persuasive as to the departure and reentry dates. See § 1229a(c)(4)(B) (noting that to determine whether applicant has met burden, “the immigration ju dge shall weigh the credible testimony along with other evidence of record”); Gutierrez-Orozco , 810 F.3d at 1246 (“[E]ven credible testimony m ay not be ‘persuasive or suff icient in light of the record as a whole.’” (quoting Doe v. Holder , 651 F.3d 824, 830 (8th Cir. 2011))). In challenging this finding, Zav ala-Ramirez first argues that t he IJ erred in finding the hearing testimony—in which he and his uncle testified about his departure and return dates—unpersuasive. Zavala-Ramir ez and his uncle did both gener ally testify that Zavala-Ramirez departed for Mexic o in December 2002 and returne d sometime before the summer of 2003. But in eval uating such hearing testimony, a n IJ must determine whether it “is credible , is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant’s burden of proo f.” § 1229a(c)(4)(B)7 (emphasis added). And here, the I J did not err in determining t hat neither Zavala-Ramirez nor his uncle offered testimony that met this standard. For one thing, neither Zavala-Ra mirez nor his uncle was able to provide the exact date of Zavala-Ramirez’s departure. And although specific dates aren’t always necessary to satisfy the continuous-prese nce requirement, neither Zavala- Ramirez nor his uncle were able to offer any “specific facts” that might explain how they recalled even the more general departure date they did provide—by, for example, t ethering Zavala-Ramirez’s departure to some memorable event or occurrence. Id. For another, some of ZavalaRamirez’s testimony was inconsis tent with his uncle’s. Zavala-R amirez said that he was gone for about two months; his uncle said he was gone for one. And although ZavalaRamirez’s uncle testified that h e saw Zavala-Ramirez right afte r Zavala-Ramirez returned to Utah in 2003 and said this re union occurred in “spring,” a s pring return does not align with Zavala-Ramirez’s testimony that he returned in February. R . 105. Indeed, a spring return is inconsistent with Zav ala-Ramirez’s uncle’s own recoll ection that ZavalaRamirez returned in January. Thu s, given the lack of specificit y and consistency, the BIA did not err in concluding that th is testimony, though credible, was not sufficiently persuasive to establish the lengt h of Zavala-Ramirez’s absence from the country. Zavala-Ramirez next argues that h is criminal-history log provid es definite evidence of his timel y return. The IJ determined that the crimi nal-history log conclusively demonstrated Zavala-Ramirez appeared in court in t he United States on September 17, 2002, and again on A pril 21, 2003, but that the l og did not provide any evidence of his whereabouts in De cember 2002 or February 2003. In arguing otherwise,8 Zavala-Ramirez points to an entr y stating, “02-06-03 Note: DEF W WALK-IN ON 02/11/03 @ 2:00PM.” R. 412. He argues that this entry is incont rovertible evidence that he walked into a government o ffice on February 6, 2003, to set an appointment for February 11, 2003, and therefore was present in the United Stat es on February 6, 2003. This entry is ambiguous at best. I t is unclear if anyone actual ly walked in on February 6, 2003, or if a walk-in was merely scheduled (for ins tance, over the phone). And notably, there is no correspon ding entry on February 11, 20 03. Further, there are numerous entries in February and March indicating that Zavala-R amirez failed to show proof of counseling and was late m aking payments to the court. These latter entries suggest he was not complying wit h court orders, which is at lea st as consistent with Zavala-Ramirez being out of the country as it is with him being in the country. Because the February 6, 2003 en try is ambiguous, it does not co mpel ZavalaRamirez’s conclusion that he was in the United States on that d ate. See Lysak v. Lynch , 631 F. App’x 579, 582–83 (10t h Cir. 2015) (unpublished) (findin g that “ambiguous” statement in letter from asylum a pplicant’s parents did “not co mpel” conclusion contrary to BIA’s). Moreover, the log indica tes that he appeared for a h earing on April 21, 2003, which aligns with his uncle’s t estimony of a spring return—lend ing further support to the BIA’s factual finding. See Gutierrez-Orozco , 810 F.3d at 1246 (concluding that there was substantial evidence for BIA’s fa ctual finding when most eviden ce “line[d] up neatly” with that finding). Thus, the cri minal-history log is not as co nclusive as Zavala-Ramirez would have it, and its inclusion i n the record does not compel a finding contrary to the
BIA’s. See Rivera-Jimenez , 214 F.3d at 1216.9 Zavala-Ramirez also asserts th at his employer’s letter demonst rates that he was not absent from the country for more than 90 days. A letter fro m Renee Kidd, Office Manager of ProGreen Lawn and Lan dscape, states that Zavala-Rami rez began working there in January 2000 and was ab sent from work only from Decemb er 5, 2002, to February 2003. The IJ concluded th at this letter was unpersuasi ve. First, the IJ noted that although Kidd purported to recall a specific departure date, sh e did not provide any documents, such as payroll record s, that might corroborate her recollection. Second, the IJ pointed out that Kidd did not testify. She therefore was notsubject to crossexamination; during which she co uld have explained how she reme mbered a specific date from nearly 15 years ago without any documents to rely upon. Cf. Ismaiel v. Mukasey , 516 F.3d 1198, 1205 (10th Cir. 2008) (“Cro ss-examination often seeks to undermine the witness’s credibility by probing i nto inconsistencies and impro babilities . . . .”). Under these circumstances, the letter’s lack of persuasive value rend ers it incapable of tipping the scales in Zavala-Ramirez’s favor—the record as a whole does not compel the conclusion that he was absent for no more than 90 days. See Gutierrez-Orozco , 810 F.3d
at 1245. Finally, Zavala-Ramirez contends that the IJ applied the wrong evidentiary standard in determining that he was out of the country for more than 90 days. Specifically, he alleges that the IJ required him to present cl ear and convincing evidence of his continuous presence or eve n to prove it beyond a reasona ble doubt, rather than merely by a preponderance of the evidence. See Lucio-Rayos v. Sessions , 875 F.3d 573, 583 (10th Cir. 2017) (“[I]t is th e noncitizen’s burden to estab lish, by a preponderance of10 the evidence, that he is eligib le to seek cancellation of remov al.”). But during the hearing, the IJ explicitly asked counsel t o identify the correct evident iary standard and ultimately concluded the preponderance-of-t he-evidence standard applied. M oreover, as the BIA noted, nothing in the IJ’s reasoni ng suggests he used anything but this standard. We therefore reject Zavala-Ramire z’s argument that the IJ applied an incorrect evidentiary standard.
Conclusion Given the lack of specificity a nd consistency in the testimony Zavala-Ramirez presented at the hearing, the i nconclusiveness of the criminal- history log, and the uncorroborated nature of the emp loyer’s letter, we hold that th e BIA’s conclusion—that Zavala-Ramirez failed to establis h his continuous presence in t he United States by a preponderance of the evidence—wa s supported by substantial evid ence. Because the record does not compel a “reasona ble factfinder” to conclude th at Zavala-Ramirez met the continuous-presence require ment, we deny Zavala-Ramirez’s p etition for review.
Rivera-Jimenez , 214 F.3d at 1216 (quoting I.N.S. v. Elias-Zacarias , 502 U.S. 478, 484 (1992)). Entered for the Court
Nancy L. Moritz Circuit Judge