Cervantes-Soberano v. Garland

Appellate Case: 21-9540 Document: 010110749689 Date Filed: 10/06/2022 Page: 1 FILED UNITED STATES COURT OF APPEALS United States Court of Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ October 6, 2022 Christopher M. Wolpert RICARDO JAIR CERVANTES- Clerk of Court SOBERANO, Petitioner, v. No. 21-9540 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, BALDOCK and CARSON, Circuit Judges. _________________________________ Ricardo Jair Cervantes-Soberano, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals’ (BIA) order that denied his motion to reopen as untimely. Exercising jurisdiction under 8 U.S.C. § 1252(a)(5), we deny his petition. * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-9540 Document: 010110749689 Date Filed: 10/06/2022 Page: 2 BACKGROUND Cervantes-Soberano travelled between Mexico and the United States multiple times before entering the United States in April 2006 without admission or parole. Ten years later, the Department of Homeland Security began removal proceedings against him by filing a notice to appear. Represented by counsel, he appeared before an immigration judge (IJ) and conceded removability, but he requested cancellation of removal under 8 U.S.C. § 1229b on the basis that his departure from the United States would pose a hardship to his three children, who are United States citizens.1 At a merits hearing in 2017, Cervantes-Soberano explained that before settling in the United States in 2006, he went back and forth between the two countries to attend college in Mexico and work in the United States. He eventually remained in the United States to be with his wife and children. According to Cervantes-Soberano, his daughter suffers from a heart murmur and it would be expensive to get medical care for her in Mexico. As for his two sons, he testified that they are afraid to go to Mexico, but are otherwise “fine” and have no problems in school. R., Vol. I at 424. When pressed as to whether his children would actually accompany him to Mexico if he were removed, he said that “[s]ometimes my kids say ‘Yes,’ sometimes they say ‘No,’” id., but he “want[ed] to take them,” id. at 425. In his application for cancellation of removal, 1 The Attorney General may cancel an alien’s removal and adjust his status to that of a lawfully admitted permanent resident if, among other things, the alien “establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a United States citizen or lawful permanent resident.” 8 …

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