Claudio Alberto Gutierrez v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIO ALBERTO GUTIERREZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73629
Agency No. A089-430-072
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Claudio Alberto Gutierrez, a native and citizen of Argentina, petitions pro se
for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from an immigration judge’s decision denying Gutierrez’s application for
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. See
FILED
JAN 16 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Planes v. Holder, 652 F.3d 991, 999 (9th Cir. 2011). We review de novo questions
of law, Castillo-Cruz v. Holder, 581 F.3d 1154, 1158-59 (9th Cir. 2009), and
review for substantial evidence continuous-residence determinations, see
Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir. 2004). We deny in part
and dismiss in part the petition for review.
The BIA correctly determined that Gutierrez is removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii) due to his convictions for violating sections 484 and 666 of the
California Penal Code, because the petty-theft offenses underlying his convictions
categorically constitute two crimes involving moral turpitude that did not arise out
of the same scheme of criminal misconduct. See Castillo-Cruz, 581 F.3d at 1160
(observing that petty theft under California law is categorically a crime involving
moral turpitude). The validity of these convictions is not properly before us. See
Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner
may not collaterally attack his state court conviction on a petition for review of a
BIA decision.”).
Substantial evidence supports the BIA’s determination that Gutierrez cannot
demonstrate the 7-year period of continuous residence required for cancellation of
removal because the commission of his first removable offense of petty theft

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terminated his accrual of continuous residence before seven years had elapsed. See
8 U.S.C. § 1229b(a)(2).
We lack jurisdiction to consider Gutierrez’s request for release from
immigration custody on the condition of bond because he did not exhaust his
administrative remedies with respect to this request. 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.

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