Sergio Carrera Noriega v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGIO CARRERA NORIEGA,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-70590
Agency No. A095-738-046
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2019**
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and DRAIN,*** District Judge.
Sergio Carrera Noriega (Noriega), a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (BIA) decision affirming the
Immigration Judge’s (IJ) decision to pretermit Noriega’s application 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).
*** The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
FILED
MAR 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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cancellation of removal because he lacked a continuous physical presence in the
United States for ten years. We have jurisdiction pursuant to 8 U.S.C. § 1252. We
deny the petition for review.
1. Noriega waived any argument that his 2007 departure did not exceed
ninety days because he failed to raise the BIA’s conclusion before us. Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). Even if he
had not waived his appeal of this issue, the IJ’s finding that Noriega failed to meet
his burden of showing that his absence from the United States in 2007 was fewer
than ninety days was supported by substantial evidence. Noriega was therefore
ineligible for cancellation of removal on this ground. 8 U.S.C. § 1229b(d)(2); 8
C.F.R. § 1240.8(d).
2. Substantial evidence also supports the BIA’s finding that Noriega
“knowingly and voluntarily accepted administrative voluntary departure,” which
constitutes a break in the continuous physical presence requirement for
cancellation of removal. Ibarra-Flores v. Gonzales, 439 F.3d 614, 619 (9th Cir.
2006). Noriega testified that he chose to leave voluntarily in order to avoid
detention. Furthermore, Noriega signed a form in Spanish—a language in which
he can read and write—acknowledging that he had a right to appear before an IJ.
Accordingly, the BIA did not violate Noriega’s due process rights. Noriega
testified in front of the IJ regarding the knowing nature of his voluntary departure,

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and the BIA properly found that Noriega elected voluntary departure knowingly
and voluntarily. Ibarra-Flores, 439 F.3d at 621.
PETITION DENIED.

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