Rigoberto Cuin-Casimiro v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIGOBERTO CUIN-CASIMIRO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 17-70133
Agency No. A088-895-595
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Rigoberto Cuin-Casimiro, 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 pretermitting his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
* 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).
FILED
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-70133
substantial evidence the agency’s continuous physical presence determination.
Serrano Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008). We deny in
part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Cuin-
Casimiro knowingly and voluntarily accepted administrative voluntary departure in
lieu of removal proceedings in 2008 and 2011, and therefore failed to establish the
requisite ten years of continuous physical presence for cancellation of removal. See
8 U.S.C. § 1229b(b)(1)(A); Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.
2006) (voluntary departure under threat of deportation constitutes a break in
continuous physical presence); Serrano Gutierrez, 521 F.3d at 1117-18 (requiring
some evidence that the alien was informed of and accepted the terms of the
voluntary departure agreement).
Cuin-Casimiro’s testimony does not compel a contrary conclusion, where he
does not dispute that he signed a Form I-826 in 2008 and 2011, and he has not
shown that immigration officers misrepresented the Form I-826 to him. Cf. Ibarra-
Flores, 439 F.3d at 619-20 (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).

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Cuin-Casimiro cites no authority to support his contention that the
government should have advised him of the possibility of requesting a custody
redetermination hearing. See Serrano Gutierrez, 521 F.3d at 1118 (acceptance of
the opportunity to voluntarily depart the United States, combined with the rejection
of an opportunity for a hearing, is sufficient to show knowing and voluntary
consent to administrative voluntary departure in lieu of removal proceedings).
We lack jurisdiction to consider Cuin-Casimiro’s unexhausted contention
that he is eligible for a U nonimmigrant visa. 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 proceedings before the agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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