Garcia-Benitez v. Mukasey

296 F. App'x 582

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2008
• Docket: No. 08-71720
• Status: Published

Opinion

MEMORANDUM

**

This is a petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing an appeal of an Immigration Judge’s order denying petitioner Rigoberto Garcia-Benitez’s application for cancellation of removal.

Petitioner’s August 8, 2008 opposition to respondent’s motion for summary disposition is construed as a timely petition for review of the BIA’s July 25, 2008 order denying petitioner’s motion to reconsider. The Clerk shall open a new docket for this petition for review.

A review of the administrative record demonstrates that petitioner conceded that he lacked the necessary ten years of continuous physical presence in the United States for purposes of cancellation of removal as defined in 8 U.S.C. § 1229b(b)(l)(a). See Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir.2004). The BIA therefore correctly concluded that, as a matter of law, petitioner was ineligible for cancellation of removal. Accordingly, respondent’s motion for summary disposition is granted because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam).

All other pending motions are denied as moot. The temporary stay of removal and voluntary departure confirmed by Ninth Circuit General Order 6.4(c) and Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), shall continue in effect until issuance of the mandate.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.