Gutierrez-Orozco v. Lynch
810 F.3d 1243
| 10th Cir. | 2016Background
- Gutierrez-Orozco, a Mexican national who entered the U.S. unlawfully, conceded removability after a 2008 assault conviction and sought cancellation of removal (or alternatively voluntary departure).
- Cancellation eligibility required ten years continuous physical presence ending March 25, 2008 (stop-time rule triggered by notice to appear).
- Gutierrez testified he entered in March 1996 and lived continuously in the U.S., but gave few details about 1996–1999; his employment and tax records begin in 1999.
- Eight supporting affidavits were submitted, but they were boilerplate, inconsistent (all state presence since 1997), and lacked specific corroborating facts about locations or dates.
- The IJ found Gutierrez’s testimony not sufficiently persuasive given the record; the BIA affirmed the denial of cancellation for failure to prove ten years’ continuous presence; the discretionary denial of voluntary departure was not reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gutierrez proved ten years of continuous physical presence for cancellation | Testimony that he entered in 1996 plus eight affidavits establish presence since 1996 | Record evidence (earlier statements, employment/tax docs beginning 1999, boilerplate affidavits) contradicts or fails to corroborate a 1996–1998 presence | Held: Not established; substantial evidence supports finding presence only from 1999, short of 10 years |
| Reviewability of denial of voluntary departure | N/A — sought review of denial | Agency’s discretionary denial of voluntary departure is committed to agency and statutorily unreviewable | Held: Court lacks jurisdiction to review discretionary denial of voluntary departure; petition dismissed as to that claim |
Key Cases Cited
- Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (limits review to issues addressed in single-member BIA order)
- Sarr v. Gonzales, 474 F.3d 783 (10th Cir. 2007) (IJ opinion may be consulted when BIA relies on or incorporates it)
- Razkane v. Holder, 562 F.3d 1283 (10th Cir. 2009) (using IJ opinion to give substance to BIA reasoning)
- Rivera-Jimenez v. I.N.S., 214 F.3d 1213 (10th Cir. 2000) (substantial-evidence standard for BIA factual findings)
- Doe v. Holder, 651 F.3d 824 (8th Cir. 2011) (credible testimony may nonetheless be unpersuasive in light of the record)
- Munis v. Holder, 720 F.3d 1293 (10th Cir. 2013) (agency’s discretionary voluntary-departure decision is unreviewable absent a legal or constitutional claim)