FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JONATHAN PINEDA, Petitioner, v. No. 20-9623 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HOLMES, MATHESON, and McHUGH, Circuit Judges. _________________________________ Jonathan Pineda, a native and citizen of Mexico, seeks review of a decision by the Board of Immigration Appeals (BIA) denying his motion to reopen or reconsider his removal proceedings. Exercising jurisdiction under 8 U.S.C. § 1252(a)(5), we deny the petition. * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND Pineda entered the United States as a child in 1988 and became a lawful permanent resident in 1999. In 2004, the Department of Homeland Security (DHS) charged him in a notice to appear with removability for smuggling or attempting to smuggle an alien into the country. Pineda failed to appear for his hearing and an Immigration Judge (IJ) ordered him removed in absentia. The IJ later rescinded the removal order and allowed Pineda to apply for cancellation of removal under 8 U.S.C. § 1229b(a). Under that statute, the Attorney General may cancel removal of an alien who, among other things, “has resided in the United States continuously for 7 years after having been admitted in any status.” 8 U.S.C. § 1229b(a). The IJ then denied Pineda’s request for cancellation, concluding that he failed to show continuous residence in the United States for seven years after being admitted in any status. The IJ reasoned that Pineda’s only admission was when he became a lawful permanent resident, just five years before the notice to appear charged him with removability and stopped the accrual of his continuous residence. The BIA dismissed Pineda’s appeal in October 2015 and ordered his removal. DHS subsequently removed Pineda to Mexico, and this court denied his petition for review. See Pineda v. Lynch, 656 F. App’x 391 (10th Cir. 2016). Pineda illegally re-entered the United States in February 2017. DHS apprehended him, reinstated the October 2015 removal order, and returned him to Mexico. 2 In July 2018, Pineda filed a motion in the BIA to reopen or reconsider the removal proceedings based on Pereira v. Sessions, 138 S. Ct. 2105 (2018). In Pereira, the Supreme Court held that a notice to appear that omits the time and place of a removal hearing—as did Pineda’s—does not stop the alien’s accrual of time toward the continuous-presence requirement for cancellation of removal. Id. …
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