Juan Rodriguez Pencheo v. Eric Holder, Jr.

441 F. App'x 266

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 19, 2011
• Docket: 11-60025
• Status: Unpublished

Opinion

PER CURIAM: *

Juan Rodriguez Pencheo (Rodriguez), a native and citizen of Mexico, has filed a petition for review of the order of the Board of Immigration Appeals (BIA) dismissing his appeal of the immigration judge’s (IJ) denial of his application for cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b)(l). Rodriguez entered the United States illegally in 1998. Following a conviction for driving while intoxicated in 2001, Rodriguez voluntarily returned to Mexico after signing a “Notice of Rights and Request for Disposition” known as a Form 1-826. He then departed the United States but returned without permission shortly thereafter. The question, then, is whether this departure interrupts the continuous physical presence required under § 1229b for cancellation of removal.

Rodriguez contends that he did not fully understand the terms of his voluntary return to Mexico or knowingly waive his right to an immigration hearing and that counsel was ineffective in failing to make this and other arguments to the IJ. The respondent correctly argues that Rodriguez did not exhaust these claims because he did not argue them to the BIA. See Ramos-Torres v. Holder, 637 F.3d 544, 547 (5th Cir.2011). This court is, therefore, without jurisdiction to review those arguments. See id.

Rodriguez also argues that In re Romalez-Alcaide, 23 I. & N. Dec. 423, 424-29 (BIA 2002), on which the IJ and the BIA relied, is inapposite. He argues that under § 1229b(d)(l) and (2), his voluntary return to Mexico did not break his continuous physical presence in this country for purposes of cancellation of removal. The respondent moves for summary affir-mance, or alternatively, to extend the briefing schedule.

Rodriguez’s argument is foreclosed by Mireles-Valdez v. Ashcroft, 349 F.3d 213, 217-19 (5th Cir.2003). A panel of this court may not reverse Mireles-Valdez absent circumstances that are not present in the instant case. See United States v. Ruff, 984 F.2d 635, 640 (5th Cir.1993).

PETITION FOR REVIEW DENIED; MOTION FOR SUMMARY AFFIR-MANCE GRANTED.

* Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.