Ernesto Gudino-Barbosa v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNESTO GUDINO-BARBOSA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-72433
Agency No. A200-868-454
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Ernesto Gudino-Barbosa, 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 (“IJ”) decision denying his application for
cancellation of removal and his request for a continuance, and denying his motion
FILED
SEP 03 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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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to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
of discretion the denial of a continuance and motion to remand, and review for
substantial evidence findings of fact. Singh v. Holder, 638 F.3d 1264, 1268-69,
1274 (9th Cir. 2011); Movsisian v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir.
2005). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Gudino-
Barbosa failed to establish the requisite ten years of continuous physical presence
in the United States, where his testimony indicated that he left the United States
sometime between January and May 2000 and returned in October 2000. See 8
U.S.C. § 1229b(b)(1)(A), (d)(2) (departure in excess of 90 days breaks continuous
physical presence).
The agency did not abuse its discretion in denying Gudino-Barbosa’s request
for a continuance, because he testified that he did not have any documents to show
when he visited Mexico, and otherwise failed to demonstrate good cause. See 8
C.F.R. § 1003.29 (IJ may grant a continuance for good cause shown); see Singh,
638 F.3d at 1274 (“[T]he IJ [is] not required to grant a continuance based on . . .
speculations.”).
13-72433 2

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The BIA did not abuse its discretion in denying Gudino-Barbosa’s motion to
remand, where he failed to establish the evidence he submitted was previously
unavailable and material. See 8 C.F.R. § 1003.2(c)(1).
We lack jurisdiction over Gudino-Barbosa’s claim that he was denied due
process, because he failed to exhaust this claim before the BIA. See Tijani v.
Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
13-72433 3

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