Ramon Magana-Almonte v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2018
• Docket: 16-73493
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAMON MAGANA-ALMONTE, AKA No. 16-73493 Ramon Magana, Agency No. A205-117-468 Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Ramon Magana-Almonte, 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 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, and review de novo constitutional claims. Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.

Substantial evidence supports the agency’s determination that Magana-

Almonte failed to establish the requisite 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 2012, and he testified that an immigration officer allowed

him to choose between signing the Form I-826 or fighting his case while detained.

See 8 U.S.C. § 1229b(b)(1)(A); Serrano 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); 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).

The record does not support Magana-Almonte’s contention that the IJ

violated due process. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (due

process claims require showing that proceedings were so fundamentally unfair that

the alien was prevented from reasonably presenting his case); Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due

2 16-73493 process challenge).

PETITION FOR REVIEW DENIED.

3 16-73493