Pohan v. Gonzales , 266 F. App'x 786 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
February 25, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
HECTOR POHAN,
Petitioner,
v. No. 07-9529
(Petition for Review)
MICHAEL B. MUKASEY, * United
States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before LUCERO, HARTZ, and HOLMES, Circuit Judges.
Petitioner Hector Pohan, a native and citizen of Indonesia, petitions for
review of the decision of the Board of Immigration Appeals (BIA) denying his
motion to reopen the proceedings and to reconsider the issue of cancellation of
removal. He claims entitlement to an exemption from the continuous-physical-
*
In accordance with Fed. R. App. P. 43(c)(2), Michael B. Mukasey is
substituted for Alberto R. Gonzales as respondent in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
presence requirement for cancellation of removal. We have jurisdiction under
8 U.S.C. § 1252(a) 1 and deny the petition for review.
B ACKGROUND
Mr. Pohan entered the United States in October 1995 on a nonimmigrant
visa that entitled him to stay through April 1996. He remained beyond that date,
however, and fathered a child, Grace, who suffers from multiple, severe medical
conditions.
In April 2003 Mr. Pohan applied for asylum, withholding of removal, and
protection under the Convention Against Torture, claiming a fear of persecution
in Indonesia on account of his Christian religion. In July 2003 the Immigration
and Naturalization Service 2 served him with a notice to appear for a hearing
before an immigration judge (IJ). At the hearing he testified that he did not fear
for his safety in Indonesia but he was afraid that he would be unable to obtain
medical care there for Grace. The IJ denied the application, finding no past
persecution or well-founded fear of future persecution. The IJ also considered
whether Grace’s medical condition warranted cancellation of removal. But he
1
Although 8 U.S.C. § 1252(a)(2)(B)(i) bars review of the discretionary
aspects of cancellation of removal, whether an alien has satisfied the continuous-
physical-presence requirement is a reviewable determination. See Sabido
Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005).
2
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, 2192, 2205 (2002), the INS has ceased to exist as an agency
within the Department of Justice, and its enforcement functions have been
transferred to the Department of Homeland Security.
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concluded that such relief was unavailable because Mr. Pohan had not been in the
United States for the required amount of time.
Mr. Pohan appealed to the BIA, which affirmed the IJ’s decision. He then
filed a motion asking the BIA to reopen and reconsider his case on the basis that
he had finally accrued enough time in the United States to qualify for cancellation
of removal. The BIA denied the motion on April 19, 2007, ruling that the 2003
service of the notice to appear interrupted his continuity of presence in the United
States. Mr. Pohan’s petition for review challenges only the April ruling.
D ISCUSSION
The BIA’s decision to grant or deny a motion to reopen or reconsider is a
discretionary determination. See 8 C.F.R. § 1003.2(a). “We will reverse only if
the BIA’s decision provides no rational explanation, inexplicably departs from
established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir.
2005) (internal quotation marks omitted).
To qualify for cancellation of removal on the basis of an “exceptional and
extremely unusual hardship” to the alien’s child, the alien must, among other
things, have “been physically present in the United States for a continuous period
of not less than 10 years immediately preceding the date of such application.”
8 U.S.C. § 1229b(b)(1). Continuity of presence ends when the alien is served a
notice to appear. See id. § 1229b(d)(1)(A). Thus, Mr. Pohan’s presence in this
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country ran from his October 1995 entry to the July 2003 service of the notice to
appear—a period of only seven years and nine months.
Mr. Pohan does not dispute that he failed to meet the 10-year requirement.
Instead, he argues that it should not apply “because a young girl’s life is at
stake.” Br. at 6. But he identifies no authority, and we have found none, that
would permit the BIA or this court to ignore the clear statutory language that
cancellation of removal requires 10 years of continuous presence in the United
States. See 8 U.S.C. § 1229b(b)(1).
The BIA properly denied Mr. Pohan’s motion to reopen and reconsider.
C ONCLUSION
The petition for review is DENIED.
Entered for the Court
Harris L Hartz
Circuit Judge
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