Oliverio Ortega-Soriano v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION SEP 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVERIO ORTEGA-SORIANO, No. 13-73460
Petitioner, Agency No. A078-101-921
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
Oliverio Ortega-Soriano, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for cancellation of removal.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
*
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).
the agency’s continuous physical presence determination, Gutierrez v. Mukasey,
521 F.3d 1114, 1116 (9th Cir. 2008), and review de novo questions of law,
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the
petition for review.
Substantial evidence supports the agency’s determination that
Ortega-Soriano knowingly and voluntarily accepted administrative voluntary
departure in lieu of removal proceedings where the administrative voluntary
departure agreement, Form I-826, reflected that it was read to him in Spanish
before he signed it. See Gutierrez, 521 F.3d at 1117-18 (requiring some evidence
that the alien was informed of and accepted the terms of the voluntary departure
agreement); cf. Ibarra-Flores v. Gonzales, 439 F.3d 614, 619-20 (9th Cir. 2006)
(insufficient evidence that alien knowingly and voluntarily accepted voluntary
departure where record did not contain Form I-826 and petitioner’s testimony
suggested that he accepted return due to misrepresentations by immigration
officers). The agency therefore properly concluded that, due to this voluntary
departure during the relevant ten year period, Ortega-Soriano did not meet the
continuous physical presence requirement for cancellation of removal. See 8
U.S.C. § 1229b(b)(1)(A); Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir.
2003) (per curiam).
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Ortega-Soriano’s claim that his right to due process was violated by the
events leading to his 2002 departure is not supported by the record.
Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a
due-process claim, a petitioner must demonstrate both a violation of rights and
prejudice.”).
PETITION FOR REVIEW DENIED.
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