Pena Balbuena v. Holder , 382 F. App'x 650 ( 2010 )

FILED
JUN 09 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO PENA BALBUENA; No. 07-73827
ANGELA NUNEZ GUERRERO,
Agency Nos. A079-537-786
Petitioners, A079-537-787
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Fernando Pena Balbuena and Angela Nunez Guerrero, natives and citizens
of Mexico, petition pro se for review of Board of Immigration Appeals’ order
*
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).
dismissing their appeal from an immigration judge’s decision denying their
applications for cancellation of removal. We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence the agency’s continuous physical
presence determination, Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th
Cir. 2004), and we deny the petition for review.
Substantial evidence supports the agency’s conclusion that petitioners did
not meet their burden of establishing continuous physical presence, see 8 U.S.C.
§ 1229b(b)(1)(A), because their testimony was materially inconsistent with their
witness’ testimony and affidavits regarding their place of residence after entry,
cf. Vera-Villegas v. INS, 330 F.3d 1222, 1231-34 (9th Cir. 2003), and petitioners
failed to provide sufficient supporting documentation attesting to their presence
prior to 1994, see Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001)
(holding that an IJ may require documentary evidence when she either does not
believe an applicant or does not know what to believe).
We do not consider petitioners’ contention regarding hardship, because their
failure to establish continuous physical presence is dispositive. See 8 U.S.C.
§ 1229b(b)(1)(A).
PETITION FOR REVIEW DENIED.
2 07-73827