Manuela Orzuga De Montano v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUELA ORZUGA DE MONTANO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-73684
Agency No. A077-436-977
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Manuela Orzuga de Montano, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision finding her inadmissible and denying her application
for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
* 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
AUG 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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review for substantial evidence the agency’s factual findings and we review de
novo questions of law. Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). We
deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility
determination, where Orzuga de Montano’s testimony regarding her knowledge
that the vehicle she was driving contained marijuana was inconsistent with her
sworn statement, and her explanation for the inconsistency was that she was tired
and frustrated at the time of her sworn statement. See Shrestha v. Holder, 590 F.3d
1034, 1046-48 (9th Cir. 2010) (adverse credibility determination supported under
the totality of the circumstances).
Because the credibility determination is supported, substantial evidence
supports the agency’s determination that there was “reason to believe” Orzuga de
Montano had knowingly assisted in drug trafficking, where border officials found
more than 22 kilograms of marijuana hidden within the vehicle she was driving,
and in her sworn statement she admitted that she knew the marijuana was in the
vehicle. See 8 U.S.C. § 1182(a)(2)(C)(i) (providing that an individual is
inadmissible if there is “reason to believe” that she has knowingly assisted in the
illicit trafficking of a controlled substance); Chavez-Reyes, 741 F.3d at 2-3.
We lack jurisdiction to consider Orzuga de Montano’s unexhausted
contention that the agency erred or violated due process in relying on her sworn

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statement before she had an opportunity to refute it in court. 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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