NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIEGO ENRIQUE MONTANO-FIMBRES, No. 16-72012
Petitioner, Agency No. A200-704-408
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Diego Enrique Montano-Fimbres, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ order dismissing his appeal from
an immigration judge’s decision denying cancellation of removal. Our jurisdiction
is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
*
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).
factual findings. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny
in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Montano-
Fimbres failed to establish the requisite ten years of continuous physical presence
for cancellation of removal, where the Form I-826, dated November 3, 2010,
indicates that he accepted administrative voluntary departure in lieu of removal
proceedings. See 8 U.S.C. § 1229b(b)(1)(A); Gutierrez v. Mukasey, 521 F.3d 1114,
1117-18 (9th Cir. 2008) (requiring some evidence that alien was informed of and
accepted the terms of the voluntary departure agreement). Montano-Fimbres’
testimony does not compel a contrary conclusion, where he did not dispute that he
signed the Form I-826, nor allege that immigration officials misrepresented the
Form I-826 to him. Cf. Ibarra-Flores v. Gonzales, 439 F.3d 614, 619-20 (9th Cir.
2006) (insufficient evidence that alien knowingly and voluntarily accepted
voluntary departure where record did not contain the voluntary departure form and
alien’s testimony suggested that he accepted return due to misrepresentations by
immigration authorities).
To the extent Montano-Fimbres contends that the agency’s determination
violated due process, we lack jurisdiction to consider this unexhausted contention.
See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks
jurisdiction to consider legal claims not presented in an alien’s administrative
2 16-72012
proceedings before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 16-72012