                                                                                FILED
                                                                    United States Court of Appeals
                                     PUBLISH                                Tenth Circuit

                    UNITED STATES COURT OF APPEALS                         January 21, 2016

                                                                         Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                              Clerk of Court
                      _________________________________

OCTAVIO GUTIERREZ-OROZCO,
a/k/a Octavio Orozco,

      Petitioner,

v.                                                         No. 15-9534

LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                      _________________________________

                       Petition for Review of Decision of the
                          Board of Immigration Appeals
                      _________________________________

Submitted on the briefs:*

J. Shawn Foster, Perretta Law Office, West Jordan, Utah, for Petitioner.

Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Linda S. Wernery,
Assistant Director; Thankful T. Vanderstar, Attorney, Office of Immigration
Litigation, United States Department of Justice, Washington, D.C., for Respondent.
                       _________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
               _________________________________

O’BRIEN, Circuit Judge.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
                        _________________________________

         Octavio Gutierrez-Orozco (Gutierrez), a native and citizen of Mexico, entered

the United States illegally. An immigration judge (IJ) denied his application for

cancellation of removal and his alternative request for voluntary departure. The IJ

decided his generally credible testimony was insufficiently persuasive, considering

all of the other evidence, to meet his burden to prove ten years of continuous physical

presence in the United States. The Board of Immigration Appeals (BIA) agreed. So

do we.

                                    I. Background

         Gutierrez insists he entered the United States in March 1996. He remembers

that date because his wife, who remained in Mexico, was pregnant with the second of

their four children, who was born in September 1996. He claims to have lived in the

United States continuously since then, except for a brief, two-month trip back to

Mexico in mid-1999 when his wife was ill — after which border patrol twice

hindered his reentry. His wife joined him here sometime in 2000.

         Gutierrez’s immigration troubles began in February 2008, when a domestic

violence incident with his teenage son led to a simple assault conviction the next

month. Shortly thereafter, the Department of Homeland Security issued a Notice to

Appear, charging him as removable under the Immigration and Nationality Act




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(INA). Gutierrez conceded removability but requested cancellation of removal1 or, in

the alternative, voluntary departure. The IJ conducted a hearing and concluded

Gutierrez was statutorily ineligible for cancellation of removal because he did not

demonstrate a ten-year continuous physical presence in the United States from April

1, 1998, to April 1, 2008;2 good moral character for that time period; and an

exceptional and extremely unusual hardship. The IJ also denied voluntary departure

because Gutierrez failed to maintain good moral character during the relevant time

frame and, alternatively, as an exercise of discretion.

       Gutierrez appealed to the BIA for relief from the IJ’s decision. It denied

relief, deeming him ineligible for cancellation of removal because he failed to

establish a ten-year continuous physical presence in the United States. It also

concluded the record supported the IJ’s discretionary denial of voluntary departure.

Gutierrez requests our review of the BIA’s decision. He is not entitled to relief.




       1
         The INA authorizes the Attorney General to cancel removal of an alien who
is inadmissible or deportable if the alien satisfies four criteria: (1) the alien has been
physically present in the United States for a continuous period of not less than ten
years preceding his application date; (2) the alien has been a person of good moral
character during that period; (3) the alien has not been convicted of certain offenses;
and (4) “removal would result in exceptional and extremely unusual hardship to the
alien’s 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).
       2
        Under the stop-time rule in 8 U.S.C. § 1229b(d)(1), any period of continuous
physical presence in the United States is deemed to end upon service of a notice to
appear. Gutierrez accepted service on March 25, 2008, so the relevant time period is
actually March 25, 1998, through March 25, 2008.

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                                     II. Discussion

      A single BIA member affirmed the IJ’s decision in a brief order under 8 C.F.R.

§ 1003.1(e)(5). We review that order as the final agency determination, limiting our

review to the issues specifically addressed therein. Diallo v. Gonzales, 447 F.3d

1274, 1278-79 (10th Cir. 2006). But “we may consult the IJ’s opinion to the extent

that the BIA relied upon or incorporated it,” Sarr v. Gonzales, 474 F.3d 783, 790

(10th Cir. 2007), so as “to give substance to the BIA’s reasoning,” Razkane v.

Holder, 562 F.3d 1283, 1287 (10th Cir. 2009).

      We review the BIA’s findings of fact under the substantial-evidence standard.

Rivera-Jimenez v. I.N.S., 214 F.3d 1213, 1216 (10th Cir. 2000). “[O]ur duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Elzour v. Ashcroft, 378 F.3d

1143, 1150 (10th Cir. 2004). This standard is “highly deferential.” Wiransane v.

Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004). To obtain reversal of factual findings,

a petitioner must show the evidence he presented “was so compelling that no

reasonable factfinder could find as the BIA did.” Rivera-Jimenez, 214 F.3d at 1216

(internal quotation marks omitted). We review the BIA’s legal conclusions de novo,

though we accord them deference “unless they are clearly contrary to the statute’s

language or to congressional intent.” Id.

                             A. Cancellation of Removal

      An alien seeking relief from removal bears the burden of establishing he

satisfies the eligibility requirements and “merits a favorable exercise of discretion.”

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8 U.S.C. § 1229a(c)(4)(A). Because the BIA based its decision on limited grounds,

we need only answer one question: Did Gutierrez establish his continuous physical

presence in the United States for the applicable ten-year period? He claims to have

presented sufficient evidence on this subject through his testimony — he entered the

United States in 1996 — and eight affidavits from friends and relatives who say he

has been living here since 1997. We are unpersuaded.

1. Testimony

      According to Gutierrez’s testimony at his removal hearing he entered the

United States in March 1996. R. at 156. But he provided no details about his

whereabouts or means of sustenance from the moment of purported entry until his

employment paper trail began in August 1999. Despite this gap, he seems to argue

his limited testimony was enough because the IJ did not make an adverse credibility

determination. See Br. for Pet’r at 9 (“[T]he judge did not specifically find his

testimony to be not credible for purposes of meeting his burden of proof.”); id. at 10

(“The Immigration Judge discounted Mr. Gutierrez’s testimony though she did not

make any specific finding that he was not credible.”).

      But credibility alone is not determinative under the guidelines governing an

IJ’s evaluation of an applicant’s testimony in a removal proceeding: “[T]he

immigration judge will determine whether or not the testimony is credible, is

persuasive, and refers to specific facts sufficient to demonstrate that the applicant has

satisfied the applicant’s burden of proof,” weighing “the credible testimony along

with other evidence of record.” 8 U.S.C. § 1229a(c)(4)(B) (emphasis added). Thus,

                                            5
even credible testimony may not be “persuasive or sufficient in light of the record as

a whole.” Doe v. Holder, 651 F.3d 824, 830 (8th Cir. 2011) (explaining the statute

contemplates an alien’s testimony may be credible but not persuasive, “for otherwise

the second determination would be superfluous”); see also Aden v. Holder, 589 F.3d

1040, 1044-45 (9th Cir. 2009) (applying a similar interpretation to comparable text

for asylum proceedings in 8 U.S.C. § 1158(b)(1)(B)(ii)).

      Here, “other evidence of record” calls into question the persuasiveness of

Gutierrez’s testimony. His application lists an entry date of “02/1996.” R. at 325-26.

And Gutierrez admitted (in a hearing regarding his request for voluntary departure) to

having entered the United States via California on August 17, 1999 — a date his

previous lawyer echoed when discussing Gutierrez’s “life of almost 10 years,”

id. at 121-22 (emphasis added). Gutierrez ultimately disclaimed this testimony and

attributed it to nervousness. But the later entry date lines up neatly with the

employment-related documents he submitted to substantiate his application for

cancellation of removal — including the Department of the Treasury’s assignment of

a tax identification number to him on September 14, 1999, and tax returns, W-2

forms, earnings statements, and other proof-of-income forms bearing dates in the

1999-to-2008 range. At the same time, documentary evidence for the 1996-to-1999

range is conspicuously absent.

2. Affidavits

      The affidavits Gutierrez submitted to try to fill the gap between 1996 and 1999

are equally unpersuasive (and a bit confusing since they all attest “Octavio has been

                                            6
living in the U.S. since 1997,” id. at 410-17, not 1996). All eight affidavits hail from

the same template, with three fill-in-the-blanks and three typewritten, boilerplate

sentences.

      The IJ articulated a host of deficiencies in the affidavits, id. at 95-96, and the

BIA referenced and incorporated that discussion into its decision concluding the

affidavits do not establish Gutierrez’s presence in the United States since 1998,

id. at 3-4. The same deficiencies motivate our like conclusion: the affidavit

statements do nothing to corroborate Gutierrez’s testimony in a meaningful way. The

critical information — the entry date — is presented only via a boilerplate statement.

Further, the affidavits contain minimal personal information about the affiants and no

information as to Gutierrez’s location in the United States during the applicable time

periods.

      Gutierrez’s evidence was not “so compelling that no reasonable factfinder

could find as the BIA did.” Rivera-Jimenez, 214 F.3d at 1216 (internal quotation

marks omitted). He was required to establish his physical presence in the United

States from at least March 25, 1998. But he convincingly established such presence

only from 1999 to 2008—short of the requisite ten years.

                               B. Voluntary Departure

      Gutierrez also challenges the discretionary denial of his application for

voluntary departure, but we do not have jurisdiction to review that decision. “No

court shall have jurisdiction over an appeal from denial of a request for an order of

voluntary departure under subsection (b) of this section . . . .” 8 U.S.C. § 1229c(f);

                                            7
see also 8 U.S.C. § 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction to review —

(i) any judgment regarding the granting of relief under section . . . 1229c . . . of this

title.”). “The agency’s decision not to grant voluntary departure is . . . discretionary

and outside our jurisdiction in the absence of a constitutional or legal question,”

Munis v. Holder, 720 F.3d 1293, 1296 (10th Cir. 2013), and this court takes a

“restrictive view” of what constitutes a constitutional claim or question of law,

id. at 1295. Gutierrez neither counters the agency’s jurisdictional argument nor

presents a constitutional claim or question of law at issue. The voluntary departure

determination is outside our purview.

                                    III. Conclusion

       We deny the petition for review of the removal order. We dismiss the petition

for review of the discretionary decision on voluntary departure for lack of

jurisdiction.




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