FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 22, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court GERARDO ZAVALA-RAMIREZ,
Petitioner,
v. No. 18-9559 (Petition for Review) WILLIAM P. BARR, United States Attorney General,
Respondent.
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RETIRED IMMIGRATION JUDGES; FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS; HONORABLE STEVEN ABRAMS; HONORABLE ESMERALDA CABRERA; HONORABLE TEOFILO CHAPA; HONORABLE JEFFREY S. CHASE; HONORABLE GEORGE T. CHEW; HONORABLE MATTHEW J. D'ANGELO; HONORABLE BRUCE J. EINHORN; HONORABLE CECELIA ESPENOZA; HONORABLE NOEL FERRIS; HONORABLE JOHN F. GOSSART, JR.; HONORABLE MIRIAM HAYWARD; HONORABLE REBECCA JAMIL; HONORABLE WILLIAM P. JOYCE; HONORABLE CAROL KING; HONORABLE ELIZABETH A. LAMB; HONORABLE MARGARET MCMANUS; HONORABLE CHARLES PAZAR; HONORABLE LAURA RAMIREZ; HONORABLE JOHN W. RICHARDSON; HONORABLE LORY D. ROSENBERG; HONORABLE SUSAN ROY; HONORABLE ANDREA H. SLOAN; HONORABLE PAUL W. SCHMIDT; HONORABLE WILLIAM VAN WYKE; HONORABLE GUSTAVO D. VILLAGELIU; HONORABLE POLLY A. WEBBER,
Amici Curiae. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, HOLMES, and MORITZ, Circuit Judges. _________________________________
Gerardo Zavala-Ramirez, a native and citizen of Mexico, seeks review of a
decision by the Board of Immigration 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 substantial evidence.
Background
Zavala-Ramirez entered the United States without documentation in 1999. In late
2002, he traveled to Mexico to visit his ill father and returned 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Although § 1252(a)(2)(B) denies any court jurisdiction to review cancellation-of-removal judgments, we narrowly interpret this statute "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 requirement is not a discretionary aspect of a cancellation decision. See Gutierrez-Orozco v. Lynch, 810 F.3d 1243, 1245-46 (10th Cir. 2016) (exercising jurisdiction over continuous- presence issue when reviewing BIA order). sometime in 2003. The exact departure and reentry dates of this trip are at issue on
appeal.
In 2012, the Department of Homeland Security charged Zavala-Ramirez with
being "in the Unites States without being admitted" and ordered him to appear before an
Immigration Judge (IJ). R. 36. He conceded removability and sought cancellation of
removal or voluntary departure. To be eligible for cancellation of removal, a
nonpermanent resident must establish, among other things, that he or she "has been
physically present in the United States for a continuous period of not less than [ten] years
immediately preceding the date of 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, Zavala-Ramirez introduced documentary evidence,
and he and his uncle testified. Although the