Miguel Dimas-Perez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL DIMAS-PEREZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-72357
Agency No. A088-710-882
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Miguel Dimas-Perez, 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 pretermitting his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
FILED
AUG 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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substantial evidence the agency’s continuous physical presence determination,
Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008), and review de novo
questions of law, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Dimas-Perez
knowingly and voluntarily accepted administrative voluntary departure in 2010 in
lieu of removal proceedings, where he does not dispute that he signed the
administrative voluntary departure agreement, Form I-826, that stated he was
giving up the right to a hearing before an immigration judge. See Gutierrez, 521
F.3d at 1117-18 (requiring some evidence that the 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) (no substantial evidence that alien
knowingly and voluntarily accepted voluntary departure where record did not
contain a Form I-826 and petitioner’s testimony suggested that he accepted return
due to immigration officers’ misrepresentations that he could apply for residence
after he signed an unidentified form). The agency therefore properly concluded
that, due to this voluntary departure during the relevant ten-year period, Dimas-
Perez did not meet the continuous physical presence requirement for cancellation
14-72357 2

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of removal. See 8 U.S.C. § 1229b(b)(1)(A); Vasquez-Lopez v. Ashcroft, 343 F.3d
961, 974 (9th Cir. 2003).
Accordingly, we reject Dimas-Perez’s contention that the record is
insufficient to support the agency’s finding that his 2010 voluntary return
interrupted his continuous physical presence. See Zarate v. Holder, 671 F.3d 1132,
1134 (9th Cir. 2012) (petitioner can obtain reversal only if the record compels a
contrary conclusion).
Dimas-Perez’s contention that the agency violated 8 C.F.R. § 240.25 by
failing to inform him of the consequences for failing to depart is unpersuasive.
We lack jurisdiction over Dimas-Perez’s unexhausted contention that he
never testified before the IJ or was given an opportunity to do so. See Tijani v.
Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (we lack jurisdiction to review legal
claims not presented in an alien’s administrative proceedings before the BIA).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
14-72357 3

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