Hernandez Barron v. Mark Filip , 411 F. App'x 85 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS A. HERNANDEZ BARRON, No. 08-70387
Petitioner, Agency No. A075-178-354
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Luis A. Hernandez Barron, 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 finding him removable for participating in
alien smuggling and denying his application for cancellation of removal. Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s findings of fact, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.
2004), and de novo questions of law, Mercado-Zazueta v. Holder, 580 F.3d 1102,
1104 (9th Cir. 2009). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Hernandez
Barron was removable due to alien smuggling. See 8 U.S.C. § 1182(a)(6)(E)(i);
Urzua-Covarrubias v. Gonzales, 487 F.3d 742, 748-49 (9th Cir. 2007).
The BIA properly concluded that Hernandez Barron was ineligible for
cancellation of removal because he lacked seven years of continuous residence in
the United States after being “admitted in any status.” See 8 U.S.C. § 1229b(a)(2);
id. § 1101(a)(13)(B) (“An alien who is paroled . . . shall not be considered to have
been admitted.”). Hernandez Barron points to no authority to support his
contention that his wife’s admission as a lawful permanent resident may be
imputed to him. Cf. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir.
2005) (a parent’s admission for permanent resident status may be imputed to the
parent’s minor child to satisfy the seven-year continuous residence requirement).
We lack jurisdiction to consider Hernandez Barron’s contentions regarding a
justification defense to the smuggling charge, and admission based on the filing of
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an application for adjustment of status, because he failed to exhaust these claims
before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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