FILED
NOT FOR PUBLICATION NOV 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABINO AGUSTIN OSNAYA- No. 13-71668
ALVAREZ,
Agency No. A095-757-869
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 6, 2014*
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Gabino Agustin Osnaya-Alvarez, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’s (“BIA”) decision dismissing his
appeal of an immigration judge’s order of removal. We have jurisdiction pursuant
to 8 U.S.C. § 1252, and we deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
Osnaya-Alvarez did not raise any of the procedural due process claims he
argues here in his appeal to the BIA. Because these claims were correctable by the
agency, they are not exempted from the statutory exhaustion requirement that must
necessarily be met for this Court to exercise jurisdiction over them. See 8 U.S.C. §
1252(d)(1); Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002).
II
The BIA’s conclusion that Osnaya-Alvarez is not eligible for cancellation of
removal is supported by substantial evidence. Osnaya-Alvarez admitted that he
voluntarily departed the United States in 2008, and he did not allege or offer proof
of coercion or misrepresentation. Thus, the BIA’s conclusion that his voluntary
departure constituted a break in physical presence is supported by substantial
evidence. See Gutierrez v. Mukasey, 521 F.3d 1114, 1117 (9th Cir. 2008).
The BIA’s conclusion that Osnaya-Alvarez had been convicted of
possession of a controlled substance, and is therefore ineligible for cancellation of
removal, is also supported by substantial evidence. Osnaya-Alvarez acknowledged
the methamphetamine conviction and that the conviction had not been expunged.
These statements, along with the FBI record of his conviction, constitute
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substantial evidence supporting the BIA’s determination that he was ineligible for
cancellation of removal.
III
In sum, we lack jurisdiction over Osnaya-Alvarez’s due process claims
because he failed to exhaust them before the agency. The BIA’s conclusion that he
was ineligible for cancellation of removal for failure to meet the ten-year
continuous physical presence requirement and because he had been convicted of a
disqualifying criminal offense is supported by substantial evidence. We need not,
and do not, reach any other issues urged by the parties.
PETITION DENIED IN PART AND DISMISSED IN PART.
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