Jose Bravo-Martinez v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE BRAVO-MARTINEZ, No. 15-73119

Petitioner, Agency No. A200-975-171

v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Submitted March 8, 2017**

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

Jose Bravo-Martinez, 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 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 determination of continuous physical presence. Ibarra-Flores v.

Gonzales, 439 F.3d 614, 618 (9th Cir. 2006). We review de novo questions of law.

Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the

petition for review.

Substantial evidence supports the agency’s finding that Bravo-Martinez did

not establish the required continuous physical presence and was therefore

ineligible for cancellation of removal, where the Form I-826, Notice of Rights and

Request for Disposition, indicates he accepted voluntary departure in 2011. See

Ibarra-Flores, 439 F.3d at 618 (voluntary departure interrupts physical presence).

The agency did not violate due process in considering the Form I-826, where

the form was probative to the issue of Bravo-Martinez’s continuous physical

presence, and where he had the opportunity to raise objections regarding the form

before the IJ. See Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012) (“[t]he

sole test for admission of evidence is whether the evidence is probative and its

admission is fundamentally fair” (citation omitted)); Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must show

error and prejudice).

Bravo-Martinez’s contention that the Form I-826 did not properly put him

on notice that he was interrupting continuous physical presence by accepting

voluntary departure is unpersuasive. See Valadez-Munoz v. Holder, 623 F.3d

2 15-73119
1304, 1311 (9th Cir. 2010) (after accepting voluntary departure, alien can have no

legitimate expectation that he could illegally reenter and resume a period of

continuous physical presence).

Bravo-Martinez’s contention that the BIA misapplied Ibarra-Flores v.

Gonzales is not supported by the record.

PETITION FOR REVIEW DENIED.

3 15-73119