Gerardo Garcia Lopez v. Eric Holder, Jr. , 479 F. App'x 81 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GERARDO GARCIA LOPEZ, No. 10-72658
Petitioner, Agency No. A089-958-122
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2012**
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Gerardo Garcia Lopez, 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
and his motion for a continuance, and denying his motion to remand. We have
*
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 under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s continuous physical presence finding. Landin-Zavala v. Gonzales, 488
F.3d 1150, 1151 (9th Cir. 2007). We review for abuse of discretion the denial of a
request for a continuance and the denial of a motion to reopen or remand.
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008) (per curiam);
Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We review de novo
due process claims. Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010).
We deny the petition for review.
Substantial evidence supports the agency’s finding that Garcia Lopez failed
to establish the requisite ten years of continuous physical presence for cancellation
of removal at the time he was served with his Notice to Appear. See 8 U.S.C.
§ 1229b(b)(1)(A), (d)(1).
The agency did not abuse its discretion in denying Garcia Lopez’s motion
for a continuance for failure to show good cause. See 8 C.F.R. § 1003.29. Garcia
Lopez also failed to show he was prejudiced by the denial of the continuance. See
Cruz Rendon, 603 F.3d at 1109-11 (to prevail on due process claim that he was
denied full and fair hearing, alien must show prejudice).
The BIA acted within its discretion in denying Garcia Lopez’s motion to
remand for failure to demonstrate that the evidence submitted with the motion was
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previously unavailable, see 8 C.F.R. § 1003.2(c)(1); Guzman v. INS, 318 F.3d 911,
913 (9th Cir. 2003) (per curiam) (affirming denial of motion to reopen where
“new” information was available and capable of discovery prior to hearing), and
for failure to submit sufficient evidence to establish prima facie eligibility for
cancellation of removal, see 8 C.F.R. § 1003.2(c)(1); Mendez-Gutierrez v.
Gonzales, 444 F.3d 1168, 1171 (9th Cir. 2006) (prima facie eligibility is
demonstrated by a showing that there is a reasonable likelihood that the statutory
requirements for relief have been satisfied).
PETITION FOR REVIEW DENIED.
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