                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        July 11, 2016
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
JONATHAN PINEDA,

       Petitioner,

v.                                                    No. 15-9577
                                                 (Petition for Review)
LORETTA E. LYNCH, United
States Attorney General,

       Respondent.
                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

      Mr. Jonathan Pineda is a citizen of Mexico. When the Department of

Homeland Security sought to remove him, he applied for cancellation of

removal. To obtain this relief, Mr. Pineda needed to show that he had

continuously remained in the United States for at least seven years. An

immigration judge found that Mr. Pineda had not satisfied this requirement


*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
and ordered removal. The Board of Immigration Appeals agreed and

dismissed Mr. Pineda’s appeal. Mr. Pineda then filed a petition seeking

review of the Board’s decision. We deny the petition, concluding that the

Board did not commit a legal error and that there was substantial evidence

for its findings.

I.    Mr. Pineda’s Entry into the United States as a Child: Two
      Accounts

      The government sought removal based on allegations that Mr. Pineda

had tried to bring a Mexican minor into the United States. At the removal

hearing, Mr. Pineda conceded removability but contended that he was

eligible for cancellation of removal.

      To qualify for cancellation of removal, Mr. Pineda needed to show

that he had continuously remained in the United States for at least seven

years. 8 U.S.C. § 1229b(a)(2). This period could not begin until Mr. Pineda

was admitted into the United States and had to end by June 2, 2004 (when

Mr. Pineda was served with a notice to appear). Id.; 8 U.S.C.

§ 1229b(d)(1). Thus, to be eligible for cancellation of removal, Mr. Pineda

needed to show that he had been admitted into the United States on or

before June 2, 1997, which was seven years before service of the notice to

appear.




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      Mr. Pineda was recognized as a lawful permanent resident in

February 1999. But this status would not help Mr. Pineda because he

received the notice to appear less than six years later.

      Mr. Pineda argues that he was admitted into the country in 1988 by

crossing the border after inspection by border officers. In re Quilantan,

25 I. & N. Dec. 285 (BIA 2010). For the sake of argument, we can assume

that Mr. Pineda’s argument is legally valid. 1 Nonetheless, the evidence on

inspection was conflicting. The government presented two documents, one

filed by Mr. Pineda and the other by his father. Both documents said that

Mr. Pineda had entered the United States in October 1987 “without

inspection.” R. at 140-41, 145. Mr. Pineda argued that these statements

were incorrect, insisting that he had entered the United States in 1988 after

inspection. Though Mr. Pineda supported this argument with an affidavit

signed by his aunt, the aunt did not testify.

1
      In Quilantan, the Board reaffirmed one of its prior cases, In re
Areguillin, 17 I. & N. Dec. 308 (BIA 1980), in holding that “an alien who
physically presents herself for questioning and makes no knowing false
claim to citizenship is ‘inspected,’ even though she volunteers no
information and is asked no questions by the immigration authorities, and
that such an alien has satisfied the ‘inspected and admitted’ requirement of
[8 U.S.C. § 1255(a)].” Quilantan, 25 I. & N. Dec. at 293; see also
Cordova-Soto v. Holder, 659 F.3d 1029, 1034 (10th Cir. 2011) (“In
Quilantan, the BIA interpreted the term ‘admitted’ as it is used in
§ 1255(a).”). The statute at issue in Quilantan, 8 U.S.C. § 1255(a), governs
adjustment of status. We need not decide whether Quilantan applies when
an alien seeks cancellation of removal. Cf. Nelson v. Att’y Gen., 685 F.3d
318, 323 n.2 (3d Cir. 2012) (declining to decide whether Quilantan applies
to interpretation of the term “admitted” for cancellation of removal).

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      The immigration judge found that Mr. Pineda had not satisfied his

burden. Doing so, the immigration judge stressed that Mr. Pineda and his

father had said, closer to the time that they had entered the country, that

they were not inspected when crossing the border. The judge pointed out

that the aunt had not come forward with her version until 2011, when Mr.

Pineda realized that his earlier version would render him ineligible for

cancellation of removal. In addition, the immigration judge discounted the

aunt’s letter because it had not been notarized, had been short, and had

lacked specifics. The immigration judge also expressed skepticism about

the aunt’s explanation for her refusal to testify.

      The Board of Immigration Appeals upheld the immigration judge’s

decision for three reasons.

      First, the Board concluded that Mr. Pineda had obtained due process

even though the immigration judge declined to allow evidence on

removability. The Board pointed out that Mr. Pineda’s attorney had

acknowledged that the charge could probably be sustained based on the

investigative report, that Mr. Pineda had declined to contest any

information in the report, that no evidence existed to counter the charge of

removability, that the attorney had no witnesses to rebut the charge of

removability, and that Mr. Pineda had waived the right to present evidence.




                                       4
      Second, the Board agreed with the immigration judge that in light of

the conflicting evidence, Mr. Pineda had not met his burden of showing

that he had been admitted in 1988.

      Third, the Board concluded that the immigration judge had not erred

in refusing to credit the recantation by Mr. Pineda’s father. The Board

reasoned that even if the father had recanted, an evidentiary conflict would

have remained on how Mr. Pineda had entered the United States.

II.   Standard of Review

      The Board’s decision constitutes the final removal order even though

it was brief and issued by a single Board member. See Uanreroro v.

Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). Thus, we review the

Board’s decision rather than the immigration judge’s. Id. Nonetheless, we

can consult the immigration judge’s explanation for the grounds ultimately

upheld by the Board. Id.

      We review the Board’s legal determinations de novo and its factual

findings under the substantial-evidence standard. Niang v. Gonzales, 422

F.3d 1187, 1196 (10th Cir. 2005).

      This appeal largely turns on the Board’s factual findings. In our

review, we regard the Board’s factual findings as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B).



                                      5
III.   Mr. Pineda’s Appeal Points

       Mr. Pineda argues in part that his father should have been allowed to

testify. According to Mr. Pineda, his father’s testimony would have

clarified that his prior statement was a mistake and that Mr. Pineda had

actually entered in the manner the aunt described. Mr. Pineda adds that (1)

the agency should have given greater credit to his aunt’s declaration and

(2) because of the smuggling charge, agency officials were determined to

disallow cancellation regardless of the evidence. We reject these arguments

for six reasons.

       First, the immigration judge could reasonably discount the father’s

recantation in light of the clarity of his earlier account of how he and Mr.

Pineda had entered the country.

       Second, the father’s new account was based solely on what the aunt

had said, and the immigration judge did not regard the aunt’s version as

persuasive. The immigration judge could have credited the father’s new

account. But the immigration judge acted reasonably in relying on two

sworn accounts that Mr. Pineda had entered the United States without

inspection.

       Third, Mr. Pineda lacks any evidence for his broad challenge to the

agency’s objectivity based on the smuggling charge. This contention is

unsupported.



                                      6
      Fourth, we reject Mr. Pineda’s due-process challenge to the exclusion

of his father’s testimony. An alien “has no liberty or property interest in

obtaining purely discretionary relief” such as cancellation of removal;

thus, Mr. Pineda “‘cannot raise a due process challenge to the denial of his

application for cancellation of removal.’” Arambula-Medina v. Holder,

572 F.3d 824, 828 (10th Cir. 2009) (quoting Dave v. Ashcroft, 363 F.3d

649, 653 (7th Cir. 2004)).

      Fifth, Mr. Pineda cannot base a due-process claim on his inability to

present evidence in opposing the charge of removability. On that charge,

Mr. Pineda’s counsel expressly waived the right to present any evidence.

Thus, Mr. Pineda obtained all of the process that was due. See

Arambula-Medina, 572 F.3d at 828.

      Finally, though Mr. Pineda claims that the immigration judge did not

consider evidence from his aunt, that is simply not the case.

IV.   Disposition

      The petition for review is denied.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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