FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 20, 2020 _________________________________ Christopher M. Wolpert Clerk of Court MOISES MAGANA ARIAS, Petitioner, v. No. 19-9541 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, MATHESON, and EID, Circuit Judges. _________________________________ Moises Magana Arias, a native and citizen of Mexico, petitions for review of the final order of removal in which the Board of Immigration Appeals (“BIA”) denied his motion to reconsider. Exercising jurisdiction under 8 U.S.C. § 1252, we grant the petition for review in part, deny in part, and remand to the BIA for further proceedings consistent with this decision. * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I. BACKGROUND Mr. Magana Arias has entered the United States without inspection and been removed several times. He claims he has lived in the United States since he last entered in December 2000. His fifteen-year-old child is a United States citizen. In March 2010, the Department of Homeland Security (“DHS”) instituted removal proceedings by serving a Notice to Appear (“NTA”) on Mr. Magana Arias. Rather than specify the date and time of the removal hearing, the NTA listed the date and time as “to be set.” Admin. R. at 382. About two weeks later, DHS served a Notice of Hearing (“NOH”) directing him to appear before the Immigration Judge (“IJ”) on April 23, 2010. He appeared at all scheduled hearings. Mr. Magana Arias admitted the allegations in the NTA and conceded inadmissibility. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).1 To support his applications, he testified about threats he received from criminals he arrested during his five years as a police officer in Mexico, the kidnapping of his nephew by organized criminals, and a neighbor’s threats to his brother. The IJ deemed Mr. Magana Arias generally credible but found that (1) his asylum application was time-barred; (2) in any event, he had not established the requirements for asylum and withholding of removal; and (3) he had not established, for purposes of his CAT claim, that he probably would 1 Mr. Magana Arias initially sought cancellation of removal as well, but he later withdrew his application based on his understanding that the NTA triggered the stop-time rule and ended his period of continuous physical presence—and thus his eligibility for cancellation. 2 suffer torture upon return to Mexico. The IJ denied relief and ordered him removed to Mexico. ...
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