Cesareo Martinez v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2018
• Docket: 17-71113
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CESAREO MARTINEZ, No. 17-71113

Petitioner, Agency No. A095-624-438

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Cesareo Martinez, 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 cancellation of removal. We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

* 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). agency’s factual findings. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010).

We deny the petition for review.

Substantial evidence supports the determination that Martinez failed to

establish ten years of continuous physical presence for cancellation of removal,

where the record includes a signed Form I-826 in Spanish indicating that he

accepted administrative voluntary departure in lieu of removal proceedings in

2005. 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). Martinez’s testimony

does not compel a contrary conclusion, where he did not dispute that he signed the

Form I-826 after being given an opportunity to read its contents, 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).

We do not reach Martinez’s contentions regarding hardship because the BIA

did not rely on this ground. See Najmabadi, 597 F.3d at 986.

PETITION FOR REVIEW DENIED.

2 17-71113