Zarza-Escamilla v. Barr

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 15, 2020 _________________________________ Christopher M. Wolpert Clerk of Court FRANCISCO JAVIER ZARZA- ESCAMILLA, Petitioner, v. No. 19-9575 (Petition for Review) WILLIAM P. BARR, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, Chief Judge, HOLMES, and MORITZ, Circuit Judges. _________________________________ Francisco Javier Zarza-Escamilla, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals’ (BIA’s) decision denying his motion to reopen removal proceedings. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BACKGROUND Mr. Zarza unlawfully entered the United States on an unspecified date in March 2006, and he has resided here continuously, with the exception of a one-month absence in 2008. In March 2011, the Department of Homeland Security (DHS) personally served him with a notice to appear before an Immigration Judge (IJ) for a removal hearing. The notice to appear did not specify a date and time for the hearing, but a subsequently served notice of hearing supplied that information. After two continuances, Mr. Zarza appeared before an IJ in April 2013. Through attorney Dana Nottingham, Mr. Zarza conceded removability and moved for administrative closure, asserting he had no criminal history and was the sole provider for his wife and multiple U.S. citizen children, one of whom suffers from serious health issues, including Down’s Syndrome. The IJ denied the motion, noting that Mr. Zarza had presented a “very sympathetic” case, but had not demonstrated a ground for closure, given that he “was not immediately eligible [for] any type of relief from removal and might only become eligible in the distant future.” R. at 371. In February 2014, after another continuance, Mr. Zarza appeared before the IJ for his final removal hearing. Attorney Nottingham acknowledged that Mr. Zarza “appear[ed] to only qualify for voluntary departure,” and he requested a continuance so Mr. Zarza could “get his affairs in order” and seek voluntary departure. Id. at 364. The IJ declined to grant any more continuances and noted DHS had decided against exercising its prosecutorial discretion to forgo removal proceedings. After conferring with Nottingham, Mr. Zarza requested post-conclusion voluntary departure so he could 2 preserve his ability to appeal the denial of a continuance. The IJ granted the request. The IJ then informed him that he had sixty days to depart the country, and that if he appealed to the BIA, he would have to show proof ...

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