Alonso Nevarez v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION MAR 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALONSO NEVAREZ, No. 14-72064
Petitioner, Agency No. A087-455-218
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Alonso Nevarez, 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 decision denying his application for cancellation of removal.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
*
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).
the agency’s factual determination regarding continuous physical presence, Ibarra-
Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006), and we review de novo
constitutional claims, Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004). We
deny the petition for review.
Substantial evidence supports the BIA’s determination that Nevarez’s
voluntary return to Mexico disrupted continuous physical presence, rendering him
ineligible for cancellation of removal, where Nevarez signed a form indicating he
requested voluntary return and testified he was told of his options, and where an
immigration officer testified that he followed proper procedure in informing
Nevarez of his rights. See Ibarra-Flores, 439 F.3d at 619 (administrative
voluntary departure under threat of deportation constitutes a break in continuous
physical presence if the alien is informed of and accepts the terms of the
departure); Gutierrez v. Mukasey, 521 F.3d 1114, 1117-18 (9th Cir. 2008) (an
alien’s testimony that he was given a choice between removal proceedings and
administrative voluntary departure constitutes substantial evidence that the
departure was knowing and voluntary).
Nevarez’s assertion that the BIA violated due process by failing to consider
his testimony and by making sua sponte factual findings is not supported by the
record.
PETITION FOR REVIEW DENIED.
2 14-72064