Victor Hernandez-Lopez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HERNANDEZ-LOPEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-71209
B.I.A. No. A070-920-571
MEMORANDUM*
On Petition for Review of Orders of the
Board of Immigration Appeals
Submitted November 6, 2015**
Pasadena, California
Before: GRABER and GOULD, Circuit Judges, and DANIEL,*** Senior District
Judge.
Petitioner Victor Hernandez-Lopez, a native and citizen of Mexico, seeks
review of two decisions of the Board of Immigration Appeals ("BIA"): its denial
FILED
NOV 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
*** The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.

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of his motion to reopen and rescind a removal order and its denial of his
application for cancellation of removal. Reviewing for abuse of discretion the
BIA’s denial of a motion to reopen, Tadevosyan v. Holder, 743 F.3d 1250,
1252–53 (9th Cir. 2014), and for substantial evidence the BIA’s denial of an
application for cancellation of removal, Zarate v. Holder, 671 F.3d 1132, 1134 (9th
Cir. 2012), we deny the petition.
1. The BIA did not abuse its discretion in denying Petitioner’s motion to
reopen. The Immigration and Naturalization Service sent proper notice of the 1995
deportation hearing via certified mail on November 2, 1994. Petitioner admits that
he received notice of the deportation hearing, and the record demonstrates that he
received notice of the 1995 removal order in both English and Spanish.
Contrary to Petitioner’s argument, the immigration judge ("IJ") considered
In re Bulnes-Nolasco, 25 I. & N. Dec. 57 (B.I.A. 2009). The IJ acknowledged the
immigration court’s jurisdiction to hear the motion to reopen but simply found
against the Petitioner.
2. Substantial evidence supports the BIA’s finding that Petitioner did not
have 10 years of continuous physical presence within the United States. He left the
United States for Mexico around January 10, 1999, and reentered the United
States, without inspection, the following month. Petitioner’s departure for Mexico
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while under a removal order executed his order of removal, 8 U.S.C. § 1101(g),
and interrupted his continuous physical presence in the United States. See
Gutierrez v. Mukasey, 521 F.3d 1114, 1117 (9th Cir. 2008) (holding that departure
under threat of removal breaks continuous physical presence in the United States).
The BIA, therefore, correctly held that Petitioner is statutorily ineligible for
cancellation of removal.
Petition DENIED.
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