FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ASCENCION MARTINEZ-SALAS and No. 11-72265
JAEL ELIZABETH MARTINEZ-
GARCIA, Agency Nos. A071-601-635
A075-479-448
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Ascencion Martinez-Salas and Jael Elizabeth Martinez-Garcia, natives and
citizens of Mexico, petition for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing their appeal from an immigration judge’s decision
*
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).
pretermitting Martinez-Salas’s application for suspension of deportation. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the BIA’s continuous-physical-presence determination. See Vera-Villegas v. INS,
330 F.3d 1222, 1230 (9th Cir. 2003). We deny in part and dismiss in part the
petition for review.
Substantial evidence supports the BIA’s decision to pretermit Martinez-
Salas’s application for suspension of deportation under former section 244(a)(2) of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1254(a)(2) (repealed
1996), because his receipt of an order to show cause terminated his accrual of the
requisite ten years of continuous physical presence in the United States during the
period immediately following his last deportable offense of overstaying his visa.
See Leon-Hernandez v. INS, 926 F.2d 902, 905 (9th Cir. 1991) (requiring
applicants for suspension to show that they have “been physically present in the
United States for a continuous period of not less than ten years immediately
following the commission of an act . . . constituting a ground for deportation”
(citation omitted) (emphasis in original)); Arrozal v. INS, 159 F.3d 429, 434
(9th Cir. 1998) (“‘[A]ny period of . . . continuous physical presence in the United
States shall be deemed to end when the alien is served . . .’ an order to show
cause . . . .” (citation omitted)).
2 11-72265
We lack jurisdiction to review petitioners’ unexhausted contention that
Martinez-Salas is eligible for suspension of deportation under former
section 244(a)(1) of the INA. 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.
3 11-72265