Miguel Ortega-Fitz v. Eric Holder, Jr., No. 09-70689 (9th Cir. 2011)

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FILED MAR 01 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MIGUEL ANGEL ORTEGA-FITZ, Petitioner, No. 09-70689 Agency No. A077-093-651 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Miguel Angel Ortega-Fitz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s ( IJ ) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial * 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). evidence the agency s continuous physical presence determination, Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008), and we deny the petition for review. Substantial evidence supports the agency s determination that Ortega-Fitz did not meet the continuous physical presence requirement where the record contains a signed Notice and Request for Disposition form ( I-826 ) in Spanish stating that Ortega-Fitz was giving up his right to a hearing before an IJ and agreeing to return to Mexico, see Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974 (9th Cir. 2003) (per curiam), and Ortega-Fitz testified that the contents of the I-826 were explained to him, see Gutierrez, 521 F.3d at 1117-18 (petitioner s testimony that he had the opportunity to go before an IJ and chose to depart instead is sufficient to establish presence-breaking voluntary departure). Ortega-Fitz s remaining contentions are unavailing. PETITION FOR REVIEW DENIED. 2 09-70689

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