Alejandro Acevedo-Perez v. Loretta E. Lynch

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO ACEVEDO-PEREZ, AKA No. 14-70744
Antonio Aguilar-Garcia, AKA Riche
Garcia-Mendez, AKA Alberto Perez, Agency No. A088-747-035
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Alejandro Acevedo-Perez, a native and citizen of Mexico, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying his application for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review
for substantial evidence the agency’s continuous physical presence determination.
Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008). We review de novo
questions of law, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005),
and review for abuse of discretion the denial of a motion to remand, Movsisian v.
Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir. 2005). We deny the petition for
review.
Substantial evidence supports the agency’s determination that Acevedo-
Perez failed to establish the requisite continuous physical presence for cancellation
of removal, where he presented inconsistent testimony with no corroboration
regarding his presence in the United States between 1999 and 2002. See 8 U.S.C.
§§ 1229a(c)(4)(B)-(C), 1229b(b)(1)(A).
The BIA did not err in its decision not to consider Acevedo-Perez’s
additional evidence filed for the first time in conjunction with the appeal. Zumel v.
Lynch, 803 F.3d 463, 475 (9th Cir. 2015) (“Under the regulations, the BIA may not
make its own findings or rely on its own interpretation of the facts.” (internal
quotation marks omitted)).
To the extent Acevedo-Perez is challenging the BIA’s denial of his motion
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to remand, the BIA did not abuse its discretion in denying the motion, where
petitioner did not show that the evidence he submitted was previously unavailable.
See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former
hearing.”); see also Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008)
(“The formal requirements for a motion to reopen and a motion to remand are the
same.”).
PETITION FOR REVIEW DENIED.
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