FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT April 29, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MARCOS EMANUEL PENA-MONTES, Petitioner, v. No. 20-9569 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,* Respondent. _________________________________ ORDER AND JUDGMENT** _________________________________ Before MATHESON, BRISCOE, and CARSON, Circuit Judges. _________________________________ Marcos Emanuel Pena-Montes (“Petitioner”), a native and citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”). He seeks review of the BIA’s dismissal of his appeal from the denial of his requests for withholding of removal and relief under the Convention Against Torture (“CAT”) by * On March 10, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. an immigration judge (“IJ”). The IJ rejected Petitioner’s requests after concluding his testimony in support was not credible. Upon review of the record presented, we conclude there is substantial evidence to support that finding. Accordingly, exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review. I. Background Petitioner came into the United States from Mexico in 2010 as a nonimmigrant on a border crossing card. By this entry, he was only permitted to remain in the country for 72 hours within 25 miles of the border. In 2013, the Department of Homeland Security served Petitioner with a Notice to Appear charging him with removability as an alien who failed to comply with the conditions of his non- immigrant admission. Petitioner admitted the factual allegations contained in the Notice and, after the IJ sustained the charge of removability, applied for asylum, withholding of removal, and relief under CAT. In his written declarations in support of his asylum application and in his testimony before the IJ, Petitioner described two incidents in June and December 2009, respectively, in which he stated that people attempted to kill him. His descriptions of the incidents varied between his first and second written declarations and his later hearing testimony which were all offered in support of his asylum application. In his first declaration, Petitioner described an incident in June 2009 when he was standing outside with his cousin. A truck drove by and fired on them, killing his cousin. Petitioner stated a woman who was with them was shot three times but 2 survived, and he “miraculously escaped with no injuries.” R. at …
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