FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 13, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JORGE RAFAEL ZALDIVAR- MENDIETA, a/k/a Jorge Rafael Saldivar-Mendieta, Petitioner, v. No. 19-9595 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT * _________________________________ Before TYMKOVICH, Chief Judge, BRISCOE and BACHARACH, Circuit Judges. _________________________________ Jorge Rafael Zaldivar-Mendieta, a native and citizen of Mexico, petitions for review of an order by the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings to consider an application for cancellation of removal. We grant the petition and remand for further proceedings. * After examining the briefs and appellate record, this panel 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. On August 5, 2008, the Department of Homeland Security served a Notice to Appear (NTA) on Mr. Zaldivar, charging that he had entered the United States unlawfully in or about 2000. The NTA ordered Mr. Zaldivar to appear before an immigration judge (IJ) at a date and time “to be set.” Admin. R., Vol. 2 at 993. Mr. Zaldivar appeared at subsequent hearings before the IJ, at which he admitted the allegations in the NTA (except he claimed his entry date was December 1997) and conceded he was removable from this country. He also filed an application for cancellation of removal. To be eligible for discretionary cancellation of removal, a noncitizen must, inter alia, establish continuous physical presence in the United States for at least ten years before the application. 8 U.S.C. § 1229b(b)(1)(A). The IJ determined that under the “stop-time rule,” service of the NTA on August 5, 2008 terminated the accrual of Mr. Zaldivar’s continuous physical presence in the United States. See id. § 1229b(d)(1)(A) (stating period of continuous physical presence is deemed to end “when the alien is served a notice to appear”). To meet the requirement of ten years of continuous physical presence, he would therefore have to show that he had been continuously physically present in this country since August 5, 1998. But the IJ concluded Mr. Zaldivar failed to meet his burden because there were “numerous inconsistencies regarding his entry date” and insufficient evidence to establish his continuous presence in this country during the ten-year period. Admin R., Vol. 1 at 281. 2 Mr. Zaldivar appealed to the BIA. Along with his appeal, he filed a motion to remand, seeking to present additional evidence concerning the length of his physical presence in the United States. The BIA dismissed his appeal and denied the motion …
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