                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 6, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 RAMERO QUEZADA-DUARTE,

               Petitioner,                              No. 10-9565
          v.                                        Petition for Review
 ERIC H. HOLDER, JR., United States
 Attorney General,

               Respondent.


                             ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Ramero Quezada-Duarte petitions for review of the decision by the Board

of Immigration Appeals (BIA) upholding the order of removal by the immigration

judge (IJ). His challenge focuses on the BIA’s grant of a motion by the

Department of Homeland Security (DHS) to reconsider and rescind the BIA’s

grant of Mr. Quezada-Duarte’s motion to reopen the proceedings after the BIA



      *
       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
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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
initially affirmed the IJ’s decision. We have jurisdiction under 8 U.S.C. §

1252(a), see Ochieng v. Mukasey, 520 F.3d 1110, 1112–13 (10th Cir. 2008), and

deny the petition.

I.    BACKGROUND

      Mr. Quezada-Duarte is a native and citizen of Mexico. He illegally entered

the United States in late 1989. On January 6, 2004, he was arrested for

possession of cocaine and heroin, and DHS commenced removal proceedings

against him shortly thereafter.

      At a hearing on November 30, 2004, Mr. Quezada-Duarte admitted that he

was removable but requested cancellation of removal. An alien who is a

nonpermanent resident is eligible for cancellation of removal if he

      (A) has been physically present in the United States for a continuous
      period of not less than 10 years immediately preceding the date of
      [his] application [for cancellation];
      (B) has been a person of good moral character during such period;
      (C) has not been convicted of [certain offenses]; and
      (D) establishes that removal would result in exceptional and
      extremely unusual hardship to [his] spouse, parent, or child, who is a
      citizen of the United States or an alien lawfully admitted for
      permanent residence.

8 U.S.C. § 1229b(b)(1). Following the merits hearing on April 23, 2007, the IJ

denied Mr. Quezada-Duarte’s request on two grounds.

      First, the IJ ruled that Mr. Quezada-Duarte failed condition B because he

did not have “the requisite good moral character.” Cert. Admin. R. at 139. The

IJ relied on 8 U.S.C. § 1101(f)(6), which states: “No person shall be regarded as,

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or found to be, a person of good moral character who, during the period for which

good moral character is required to be established is, or was . . . one who has

given false testimony for the purpose of obtaining any benefits under” the INA.

The IJ found that Mr. Quezada-Duarte had given false testimony at the removal

hearing. At the outset of the hearing, Mr. Quezada-Duarte spent 20 minutes

reviewing his application for errors, made some changes, and then testified that it

was correct as amended. Yet, as he admitted on questioning by the IJ and by

counsel for DHS, the application erroneously stated that he lived in Utah, that he

was not married, and that he had never been arrested.

      Second, the IJ found that Mr. Quezada-Duarte failed condition D.

Mr. Quezada-Duarte had contended that his deportation would “result in

exceptional and extremely unusual hardship” to his daughter, who is a United

States citizen. Although the IJ thought it a close question, he said that the

standard had not been satisfied.

      The BIA affirmed the IJ’s denial of the request for cancellation on June 20,

2008, stating that Mr. Quezada-Duarte had “failed to establish that his qualifying

relative would suffer ‘exceptional and extremely unusual hardship.’” Cert.

Admin. R. at 78. Three months later, however, Mr. Quezada-Duarte asked the

BIA to reopen his case, asserting that he had new evidence that removal would

cause “immeasurabl[e] detriment” to his daughter. Id. at 50. The BIA granted

the motion on February 26, 2009, explaining that although the new evidence was

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unlikely to “create the likelihood that relief will be granted,” it was “new,

previously unavailable material evidence directly relevant to the hardship issue.”

Id. at 28. A week later DHS asked the BIA to reconsider, contending that even if

Mr. Quezada-Duarte could satisfy condition D, he would still be ineligible for

relief because he was not a person of good moral character. A single member of

the BIA issued a nonsummary decision granting the DHS motion to reconsider

and denying Mr. Quezada-Duarte’s motion to reopen. The decision explained:

      [T]he [IJ’s] conclusion as a matter of law that [Mr. Quezada-Duarte]
      was not eligible for cancellation of removal because of the lack of
      good moral character was not improper. Therefore, even if the
      motion does present newly available material evidence relevant to
      hardship, [he] is still not prima facie eligible for cancellation of
      removal as a matter of law.

Id. at 4 (citation omitted).

II.   DISCUSSION

      We review the BIA decision based on the grounds articulated by the BIA’s

decision and grounds raised in the IJ’s decision that were relied upon by the BIA.

See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). We review

purely legal questions de novo, Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335

(10th Cir. 2008), but “administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). We review the denial of a motion to reopen for abuse of

discretion. See Dulane v. INS, 46 F.3d 988, 994 (10th Cir. 1995). We generally


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lack jurisdiction to review decisions regarding cancellation of removal, see

8 U.S.C. § 1252(a)(2)(B)(i); but we can review “constitutional claims or questions

of law involving statutory construction,” Kechkar v. Gonzales, 500 F.3d 1080,

1083 (10th Cir. 2007); see 8 U.S.C. § 1252(a)(2)(D).

      Mr. Quezada-Duarte contends that the IJ erred in finding that he had “given

false testimony for the purpose of obtaining any benefits.” 8 U.S.C. § 1101(f)(6).

He argues (1) that the errors in his application were not “false testimony” because

they were in writing and (2) that the errors were inadvertent and not “for the

purpose of obtaining any benefits under [the INA].” Id. His first argument is

based on the correct legal premise that “‘testimony’ is limited to oral statements

made under oath.” Kungys v. United States, 485 U.S. 759, 780 (1988). But it

fails on the facts because he ignores his testimony adopting the application. As

for the second argument, it is limited to his false statements concerning his

residence and marital status. He does not address his false statement that he had

not been arrested. But that false statement by itself could support the IJ’s

finding; and we will affirm a decision of a lower tribunal if the party seeking

reversal does not challenge each independent ground relied on by that tribunal in

reaching its decision. See Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161,

1168 (10th Cir. 2007). Accordingly, we affirm the BIA’s denial of Mr. Quezada-

Duarte’s motion to reopen.




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II.   CONCLUSION

      We DENY the petition for review.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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