Evaristo Gomez v. Loretta E. Lynch , 610 F. App'x 679 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVARISTO GOMEZ, No. 13-72973
Petitioner, Agency No. A073-967-311
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Evaristo Gomez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to remand and
dismissing his appeal from an immigration judge’s (“IJ”) order pretermitting his
application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C.
*
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).
§ 1252. We review for substantial evidence the agency’s continuous physical
presence determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.
2006), and review de novo constitutional claims, Iturribarria v. INS, 321 F.3d 889,
894 (9th Cir. 2003). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Gomez failed
to establish the ten years of continuous physical presence required for cancellation
of removal. See 8 U.S.C. § 1229b(b)(1)(A); Juarez-Ramos v. Gonzales, 485 F.3d
509, 511-12 (9th Cir. 2007) (expedited removal interrupts an alien’s continuous
physical presence for cancellation purposes).
The admission of evidence pertaining to Gomez’s 1999 expedited removal
order was not fundamentally unfair such that it violated his due process rights. See
Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012). Accordingly, Gomez’s
claim that the BIA violated due process in affirming the IJ’s decision also fails.
Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a petitioner to
prevail on a due process claim).
To the extent that Gomez seeks to challenge his 1999 expedited removal
order, we lack jurisdiction to consider this claim. See 8 U.S.C. § 1252(a)(2)(A)(i),
(e)(2); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818-19 (9th Cir. 2004).
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Gomez has not raised, and has therefore waived, any challenge to the BIA’s
denial of his motion to remand. See Lopez-Vasquez v. Holder, 706 F.3d 1072,
1079-80 (9th Cir. 2013) (a petitioner waives a contention by failing to raise it in
the opening brief).
PETITION FOR REVIEW DENIED in part and DISMISSED in part.
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