Cesar Montes-Robles v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR MONTES-ROBLES, No. 13-73983
Petitioner, Agency No. A095-808-818
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Cesar Montes-Robles, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
substantial evidence the agency’s continuous physical presence determination.
Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008). We dismiss in part
and deny in part the petition for review.
We lack jurisdiction to consider Montes-Robles’ contentions that the IJ
violated his due process rights because he did not raise these claims to the BIA.
See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must
exhaust claims in administrative proceedings below).
Substantial evidence supports the agency’s determination that Montes-
Robles failed to establish eligibility for cancellation of removal where the record
indicates that he accepted voluntary departure in lieu of removal proceedings,
breaking his accrual of continuous physical presence. See 8 U.S.C.
§ 1229b(b)(1)(A); Gutierrez, 521 F.3d at 1117-18 (substantial evidence supported
IJ’s determination that petitioner voluntarily departed in lieu of facing removal
proceedings); see also 8 U.S.C. § 1229a(c)(4)(B) (petitioner bears the burden of
showing eligibility). We reject Montes-Robles’ contention that the BIA’s analysis
was insufficient.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2 13-73983