Jose Vargas Perez v. Eric H. Holder Jr. ( 2010 )

FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T O F AP PE ALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO VARGAS PEREZ and No. 09-70167
MARTHA YOLANDA VARGAS,
Agency Nos. A095-444-293
Petitioners, A073-956-274
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
Jose Alberto Vargas Perez and Martha Yolanda Vargas, husband and wife
and natives and citizens of Mexico, petition pro se for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration
judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. §1252. We
*
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).
review for substantial evidence the agency’s continuous physical presence
determination, Landin-Zavala v. Gonzales, 488 F.3d 1150, 1151 (9th Cir. 2007),
and review de novo claims of due process violations in immigration proceedings,
Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the petition for review.
The agency properly concluded that because the female petitioner was the
subject of an expedited removal order that interrupted her continuous physical
presence she was statutorily ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(b)(1)(A); Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir. 2007)
(an expedited removal order interrupts an alien’s continuous physical presence for
cancellation purposes).
The BIA properly refused to consider the hardship evidence petitioners
submitted for the first time on appeal. See 8 C.F.R. 1003.1(d)(3)(iv). Petitioners’
claim that the BIA’s failure to consider this evidence violated due process therefore
fails. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000) (requiring error to
prevail on due process claim).
Petitioners’ claim that the IJ violated due process by denying their request
for a continuance is unavailing because they have not demonstrated that the
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outcome of the proceedings may have been affected by the denial. See Ibarra-
Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).
To the extent petitioners contend that the BIA failed to consider some or all
of the evidence they submitted with their motion, they have not overcome the
presumption that the BIA did review the record. See Franco-Rosendo v. Gonzales,
454 F.3d 965, 966 (9th Cir. 2006).
PETITION FOR REVIEW DENIED.
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