Jose Reyes-Herrera v. Loretta E. Lynch , 637 F. App'x 466 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS REYES-HERRERA, No. 14-70882
Petitioner, Agency No. A075-522-985
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Jose Luis Reyes-Herrera, 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. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
evidence the agency’s continuous physical presence determination, and we review
de novo due process claims. Ibarra-Flores v. Gonzales, 439 F.3d 614, 618, 620
(9th Cir. 2006). We deny in part and grant in part the petition for review, and
remand.
Substantial evidence supports the agency’s determination that Reyes-
Herrera’s acceptance of voluntary departure to Mexico in 2003 was knowing and
voluntary, and that it interrupted his period of continuous physical presence. See 8
U.S.C. § 1229b(b)(1)(A); Ibarra-Flores, 439 F.3d at 619-20 (in order to interrupt
the accrual of continuous physical presence, the decision to accept voluntary
departure must be knowing and voluntary). Reyes-Herrera does not dispute that in
2003 he appeared before an IJ, was found removable and was granted voluntary
departure in lieu of removal, and he did not submit any evidence in support of his
claim that his decision to accept voluntary departure was not knowing and
voluntary. See Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 973 (9th Cir. 2003)
(when an alien leaves pursuant to a voluntary departure ‘“[he] leaves with the
knowledge that he does so in lieu of being placed in proceedings . . . [and t]here is
no legitimate expectation by either of the parties that an alien could illegally
reenter and resume a period of continuous physical presence”’ (quoting Matter of
Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (BIA 2002) (en banc))). Reyes-Herrera
2 14-70882
has not shown that the process through which he accepted voluntary departure in
2003 did not comport with due process.
The record contains evidence that Reyes-Herrera timely filed proof of
posting his voluntary departure bond. See 8 C.F.R. § 1240.26(c)(3)(ii). We
therefore remand to the BIA to determine only Reyes-Herrera’s eligibility for
reinstatement of voluntary departure.
The parties will bear their own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
3 14-70882