Appellate Case: 21-9504 Document: 010110622644 Date Filed: 12/22/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 22, 2021 _________________________________ Christopher M. Wolpert Clerk of Court HOMERO GURROLA-PEREZ, Petitioner, v. No. 21-9504 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HOLMES, McHUGH, and CARSON, Circuit Judges. _________________________________ Homero Gurrola-Perez petitions this court to review whether the Board of Immigration Appeals (the “BIA” or “Board”) erred by declining to remand for consideration of his voluntary departure claim. After Immigration and Customs Enforcement placed Mr. Gurrola-Perez in removal proceedings approximately thirteen years ago, he attended an initial master calendar hearing where he told the Immigration Judge (“IJ”) he intended to apply for cancellation of removal and, alternatively, voluntary departure. The IJ held Mr. Gurrola-Perez’s merits hearings * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 21-9504 Document: 010110622644 Date Filed: 12/22/2021 Page: 2 several years later, during which no one raised his voluntary departure request. The IJ issued a decision ordering removal without considering whether Mr. Gurrola-Perez was eligible for voluntary departure. Mr. Gurrola-Perez appealed to the BIA seeking a remand to allow the IJ to consider his voluntary departure claim. The BIA denied the appeal because Mr. Gurrola-Perez had not pursued this claim at his merits hearings. For the following reasons, we hold the BIA did not err by declining to remand, and we deny the petition. I. BACKGROUND Mr. Gurrola-Perez, a citizen of Mexico, entered the United States without authorization in the 1990s and has lived in this country ever since.1 In 2008, Immigration and Customs Enforcement served Mr. Gurrola-Perez with a Notice to Appear, charging him with removability as an alien present in the United States without having been admitted or paroled, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Mr. Gurrola-Perez appeared, with counsel, at the Denver Immigration Court for an initial master calendar hearing on March 24, 2009. Through his counsel, he admitted the allegations in the Notice to Appear, conceded he was removable, and designated Mexico as the country of removal if removal was ordered. He also informed the IJ that he submitted Form E-42B, an application for cancellation of removal for non-permanent residents. The IJ asked if Mr. Gurrola-Perez would be applying for voluntary departure in the alternative, and he responded affirmatively. 1 Mr. Gurrola-Perez says he entered the United States in “about 1996,” Pet’r Br. at 1, and the Respondent says he entered “in March 1994.” Resp’t Br. at 3. 2 Appellate Case: 21-9504 Document: 010110622644 Date Filed: 12/22/2021 Page: 3 Almost eight years later and after multiple continuances, the IJ held a hearing on the merits of Mr. Gurrola-Perez’s requested relief. With the assistance of counsel, …
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