Marcelino Gomez v. Jefferson Sessions, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0236n.06 No. 17-3946 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MARCELINO GOMEZ, ) FILED ) May 08, 2018 Petitioner, ) DEBORAH S. HUNT, Clerk ) v. ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES JEFFERSON B. SESSIONS, III, U.S. Attorney ) BOARD OF IMMIGRATION General, ) APPEALS ) Respondent. ) ) Before: CLAY, STRANCH, and LARSEN, Circuit Judges. LARSEN, Circuit Judge. Marcelino Gomez, a citizen of Mexico subject to removal from the United States, seeks cancellation of removal and withholding of removal. The immigration judge (IJ) rejected both claims, and the Board of Immigration Appeals (BIA) affirmed and dismissed his appeal. In his petition for review, Gomez argues (1) that the BIA erred in affirming the IJ’s finding that Gomez had not established ten years’ continuous physical presence in the United States because he offered only his own testimony to establish his presence during some years, and (2) that the BIA erred in affirming the IJ’s conclusion that Mexicans returning to Mexico after spending time in the United States are not a cognizable particular social group. Both of Gomez’s claims are foreclosed by precedent; therefore, we DENY his petition for review. No. 17-3946 Gomez v. Sessions I. Gomez is a citizen of Mexico who claims that he first entered the United States in June 2001. On October 31, 2011, he was served with a Notice to Appear charging him with being present in the United States without being admitted. See 8 U.S.C. § 1182(a)(6)(A)(i). Gomez sought relief from removal on two grounds: (1) cancellation of removal for certain nonpermanent residents due to the extreme and unusual hardship that his daughter, a United States citizen, would face if he returned to Mexico, and (2) withholding of removal due to his fear of persecution in Mexico on the basis of membership in a particular social group. At a preliminary hearing, the IJ informed Gomez that “[i]n order to qualify for cancellation, you have to establish through evidence—which are witnesses and documents—that you have been in the United States for 10 years.” When asked, Gomez stated that he would need five months to hire an attorney, fill out the application for cancellation of removal, and gather his supporting documents. The IJ then continued Gomez’s case for five months and again instructed Gomez “to come back with the application and all of your documents completed.” At his hearing on the application, the government conceded that Gomez had established through supporting documentation his physical presence “dating back to 2004.”1 The question remained whether Gomez had been present in the United States since at least October 2001. Gomez testified that he entered the United States in June 2001 and that he remembered learning 1 Gomez did not dispute the government’s characterizing his documentary evidence as dating back to 2004. Nor does Gomez now contest the BIA’s claim that he “did not submit any documentary proof for the years 2001–2003.” Our review of the record indicates ...

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