FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 22, 2020 _________________________________ Christopher M. Wolpert Clerk of Court FERNANDO REYES-LUEVANOS, Petitioner, v. No. 19-9545 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, MATHESON, and CARSON, Circuit Judges. _________________________________ Fernando Reyes-Luevanos, a native and citizen of Mexico, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision by an immigration judge (IJ) denying his application for cancellation of removal under 8 U.S.C. § 1229b. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review. * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 On November 13, 2009, the Department of Homeland Security (DHS) initiated removal proceedings by serving Petitioner with a notice to appear (NTA), alleging he was removable for having stayed beyond the one year allowed under the H-2B visa issued to him in 2003. The NTA provided his initial appearance before an IJ would be at a date and time “to be set.” Admin. R. at 912. Five days later, he was served with a notice of hearing (NOH), which specified the date and time for his appearance. At a hearing in June 2010, Petitioner conceded he was removable but requested cancellation of removal. In September 2010, he filed an application for such relief, alleging, among other things, that he had been continuously present in the United States for the preceding ten years, as required by 8 U.S.C. § 1229b(b)(1)(A). At a hearing before an IJ in 2018, Petitioner testified that he originally entered the United States illegally in 1998, that he travelled to Mexico in 2002 to visit family for approximately thirty days, and that he returned on a work permit, which was “the first time” he had such a permit, id. at 134. However, Petitioner’s written application listed three departures—March to April 2000, December 2001 to February 2002, and an unspecified duration in 2003—each time for the purpose of visiting family in Mexico and each time returning to the United States on an H-2B visa. When asked to clarify the discrepancies between his application and his testimony, Petitioner stated: (1) with regard to the departure in 2000, he did not “remember,” id. at 135; and (2) with regard to the departure in 2001, he was “travelling” but “didn’t leave the country,” id. (internal quotation marks omitted). Petitioner acknowledged that he 2 initially testified to one departure ...
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