DIEGO MONTANO-FIMBRES V. JEFFERSON SESSIONS, No. 16-72012 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION DEC 21 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DIEGO ENRIQUE MONTANO-FIMBRES, No. Petitioner, U.S. COURT OF APPEALS 16-72012 Agency No. A200-704-408 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 18, 2017** Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges. Diego Enrique Montano-Fimbres, 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 cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s * 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). factual findings. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s determination that MontanoFimbres failed to establish the requisite ten years of continuous physical presence for cancellation of removal, where the Form I-826, dated November 3, 2010, indicates that he accepted administrative voluntary departure in lieu of removal proceedings. See 8 U.S.C. § 1229b(b)(1)(A); Gutierrez v. Mukasey, 521 F.3d 1114, 1117-18 (9th Cir. 2008) (requiring some evidence that alien was informed of and accepted the terms of the voluntary departure agreement). Montano-Fimbres’ testimony does not compel a contrary conclusion, where he did not dispute that he signed the Form I-826, nor allege that immigration officials misrepresented the Form I-826 to him. 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 the voluntary departure form and alien’s testimony suggested that he accepted return due to misrepresentations by immigration authorities). To the extent Montano-Fimbres contends that the agency’s determination violated due process, we lack jurisdiction to consider this unexhausted contention. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not presented in an alien’s administrative 2 16-72012 proceedings before the agency). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 16-72012
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