Esther Gomez 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NOT FOR PUBLICATION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
ESTHER GOMEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-72861
Agency No. A096-054-866
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Esther Gomez, a native and citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ order dismissing her appeal from an immigration
judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252. We
review for substantial evidence the agency’s continuous physical presence
FILED
SEP 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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determination, Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir. 2004),
and review de novo due process claims, Iturribarria v. INS, 321 F.3d 889, 894 (9th
Cir. 2003). We deny the petition for review.
Substantial evidence supports the agency’s conclusion that Gomez failed to
establish the requisite continuous physical presence where Gomez testified and
amended her application for cancellation of removal during proceedings to reflect
that she had entered on November 26, 1998, a date less than ten years before she
was served with a Notice to Appear (“NTA”). See 8 U.S.C. § 1229b(b)(1)(A),
(d)(1)(A) (the accrual of continuous physical presence stops when alien is served
with the NTA).
Because Gomez fails to establish error, it follows that she has not shown a
due process violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error to succeed on a due process claim).
Gomez’s contention that the BIA erred in not remanding her case with her
spouse’s case is unpersuasive.
PETITION FOR REVIEW DENIED.

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