FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 2, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JAVIER EVELIO HERNANDEZ- GARCIA, Petitioner, v. No. 20-9546 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, ∗ Respondent. _________________________________ ORDER AND JUDGMENT ** _________________________________ Before MORITZ, BALDOCK, and KELLY, Circuit Judges. _________________________________ Javier Evelio Hernandez-Garcia, a native and citizen of Cuba, seeks review of a decision by the Board of Immigration Appeals (BIA) that affirmed an Immigration ∗ On March 11, 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Judge’s (IJ’s) removal order. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition in part and dismiss it in part. BACKGROUND Hernandez-Garcia left Cuba in April 2019 on a Cuban-issued passport and flew to Nicaragua. After traveling through Nicaragua, Guatemala, Honduras, and Mexico, he unlawfully crossed the United States border in July near El Paso, Texas. The Department of Homeland Security (DHS) apprehended him and charged him with removability. Hernandez-Garcia appeared pro se before an IJ and submitted an I-589 application for asylum and withholding of removal. 1 In the application, he claimed he was twice arrested in Cuba for expressing his political opinion against the Cuban regime. The IJ scheduled a removal hearing for December and advised him that he could submit further evidence and appear with counsel. Hernandez-Garcia said he understood and had no questions. Hernandez-Garcia appeared pro se at the removal hearing. He acknowledged various aspects of his application (including that he was a Cuban citizen), executed it, and tendered several exhibits, including a declaration, medical documents, and a letter from his mother. 1 Hernandez-Garcia also sought protection under the Convention Against Torture. But he does not challenge in his opening brief the agency’s treatment of that claim and we do not discuss it further, as “[t]he failure to raise an issue in an opening brief waives that issue.” Rodas-Orellana v. Holder, 780 F.3d 982, 998 (10th Cir. 2015) (internal quotation marks omitted). 2 In his declaration, he stated that on February 11, 2019, Cuban authorities beat him and arrested him after he “emphasized . . . [he] was against the Castro/Castrista regime that is currently in power.” R. at 156. The authorities took him to a hospital for treatment and then held him for 48 hours at …
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