   16-1586
   Salinas Ordonez v. Sessions
                                                                                           BIA
                                                                                     Strause, IJ
                                                                                  A205 309 735




                UNITED STATES COURT OF APPEALS
                    FOR THE SECOND CIRCUIT
                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals for the Second Circuit, held at
   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
   York, on the 17th day of May, two thousand seventeen.

   PRESENT:
               PIERRE N. LEVAL,
               PETER W. HALL,
               DENNY CHIN,
                     Circuit Judges.
   _____________________________________

   JOSE GUSTAVO SALINAS ORDONEZ,

                 Petitioner,

                 v.                                                        16-1586

   JEFFERSON B. SESSIONS III, UNITED STATES
   ATTORNEY GENERAL,

               Respondent.
   _____________________________________

   FOR PETITIONER:                         Gregory Osakwe, Hartford, CT.
FOR RESPONDENT:                            Joyce R. Branda, Acting Assistant Attorney General;
                                           John S. Hogan, Assistant Director; David H. Wetmore,
                                           Trial Attorney, Office of Immigration Litigation,
                                           United States Department of Justice, Washington, DC.

       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the

petition for review is DENIED.

       Petitioner Jose Gustavo Salinas Ordonez, a native and citizen of Ecuador, seeks review of a

May 3, 2016, decision of the BIA, affirming a January 6, 2015, decision of an Immigration Judge

(“IJ”) denying Ordonez’s application for cancellation of removal and ordering him removed to

Ecuador. In re Jose Gustavo Salinas Ordonez, No. A205 309 735 (B.I.A. May 3, 2016), aff’g No.

A205 309 735 (Immig. Ct. Hartford Jan. 6, 2015). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

       Under the circumstances of this case, we have reviewed the decisions of both the BIA and

the IJ “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528

(2d Cir. 2006). We review the IJ’s factual findings for substantial evidence and questions of law

de novo. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

Although our jurisdiction to review the denials of discretionary relief is limited, we retain

jurisdiction to review whether an applicant has met the continuous presence requirement. See

Mendez v. Holder, 566 F.3d 316, 320–22 (2d Cir. 2009); see also Hernandez v. Holder, 736 F.3d

234, 236–37 (2d Cir. 2013).       We review the agency’s continuous presence determination

analyzing whether that determination is supported by substantial evidence and was decided in

accordance with law. 8 U.S.C. § 1252(b)(4); Hernandez, 736 F.3d at 236–37.

                                                 2
        Ordonez, who is not a lawful permanent resident, must demonstrate eligibility for

cancellation of removal by establishing, among other things, that he “has been physically present

in the United States for a continuous period of not less than 10 years” at the time the Notice to

Appear is served. 8 U.S.C. § 1229b(b)(1)(A), (d)(1). Here, because the Notice to Appear was

served in February 2013, Ordonez had to prove that he was in the United States as of February

2003.   See 8 U.S.C. § 1229b(b)(1)(A), (d)(1) (ten-year physical presence requirement); id.

§ 1229a(c)(4)(A) (“An alien applying for relief or protection from removal has the burden of

proof.”). We conclude that Ordonez failed to meet his burden.

        Ordonez maintained that he entered the United States in May 2000. The only evidence he

offered to corroborate that date was a notarized letter from his friend, Luis Arevalo, reflecting that

he and Ordonez lived in the same apartment building “since his arrival in 2000” until 2006.

Arevalo’s testimony, however, was inconsistent with his letter, reflecting that he and Ordonez

began living in the same building in 2002. When asked to explain this discrepancy, Arevalo

replied that he knew of Ordonez in 2000 but only began living in the same building in 2002.

Because these inconsistencies called into question Arevalo’s veracity, it was reasonable for the

agency to afford diminished weight to Arevalo’s letter and testimony, which was the only evidence

to corroborate Ordonez’s presence in the United States before February 2003. See Y.C. v. Holder,

741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s determination of the weight afforded

to an alien’s documentary evidence.”) (citations omitted).

        The remaining evidence corroborates Ordonez’s presence only as early as September 2003,

as indicated by his Ecuadorian passport renewal. For these reasons, the agency did not err in

finding that Ordonez failed to meet his burden showing ten years of continuous physical presence



                                                  3
preceding the February 2013 Notice to Appear. See 8 U.S.C. §§ 1252(b)(4)(B), 1229b(b)(1)(A),

(d)(1), 1229a(c)(4)(A).

       We have considered Ordonez’s remaining arguments and conclude that they are without

merit. Accordingly, the petition for review is DENIED.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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