Cruz v. Barr

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 4, 2020 _________________________________ Christopher M. Wolpert Clerk of Court GUADALUPE ISMAEL CRUZ, Petitioner, v. No. 20-9516 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT * _________________________________ Before LUCERO, HOLMES, and EID, Circuit Judges. _________________________________ Guadalupe Ismael Cruz petitions for review of an order of the Board of Immigration Appeals (BIA or Board) denying his motion to reopen his removal proceedings. We deny the petition for review. * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND Cruz is a native and citizen of Mexico. In 2017, the Department of Homeland Security served him with a Notice to Appear, charging that he was an alien present in the United States without being admitted or paroled and therefore subject to removal from this country. Cruz admitted the allegations in the Notice to Appear, except for its allegation that he had arrived in the United States in 1976. He contended that he had arrived several years earlier. He also claimed that his entry at that time may have been lawful and he therefore did not concede that he was subject to removal. But the immigration judge (IJ) sustained the charge, finding he had failed to meet his burden to show that he lawfully entered this country. Cruz then filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The IJ held a hearing on the application, during which Cruz admitted that his prior California convictions for violating Cal. Health & Safety Code § 11352, prohibiting transportation or distribution of illegal drugs, and for grand theft auto, likely were convictions for “particularly serious crime[s]” that disqualified him from asylum or withholding relief. See 8 U.S.C. §§ 1158(b)(2)(A)(ii) (asylum), 1231(b)(3)(B)(ii) (withholding). Thus, the only relief for which he remained eligible was deferral of removal under the CAT. Cruz then testified in support of his application. He described his former gang activities and affiliations, his gang tattoos, his testimony against a rival gang member, his brother’s death at the hands of gang members, and his fear that he would 2 be tortured by gang members or the authorities if he were removed to Mexico. He also submitted documentary evidence in support of his application, including information about gang activity in Mexico. Although the IJ concluded he had testified credibly, she ruled that Cruz had failed to meet his burden of proving that it was more likely ...

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