Aurelio Martinez Clemente v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIO MARTINEZ CLEMENTE, No. 17-73057
Petitioner, Agency No. A200-630-844
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Aurelio Martinez Clemente, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying cancellation of removal. We
have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.
*
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).
2010). We deny the petition for review.
Substantial evidence supports the determination that Martinez Clemente
failed to establish ten years of continuous physical presence for cancellation of
removal, where the record includes a signed Form I-826 indicating that he accepted
administrative voluntary departure in lieu of removal proceedings in 2011. See 8
U.S.C. § 1229b(b)(1)(A); Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.
2006) (alien’s acceptance of administrative voluntary departure interrupts the
accrual of continuous physical presence); Serrano Gutierrez v. Mukasey, 521 F.3d
1114, 1117-18 (9th Cir. 2008) (requiring some evidence that alien was informed of
and accepted the terms of the voluntary departure agreement). Even assuming
Martinez Clemente’s testimony to be credible, see Krotova v. Gonzales, 416 F.3d
1080, 1084 (9th Cir. 2005) (“When the BIA’s decision is silent on the issue of
credibility, despite an IJ’s explicit adverse credibility finding, we may presume that
the BIA found the petitioner to be credible.”), his testimony does not compel a
contrary conclusion, cf. Ibarra-Flores, 439 F.3d 614 at 619-20 (insufficient
evidence that alien knowingly and voluntarily accepted voluntary departure where
record did not contain the voluntary departure form and alien’s testimony
suggested that he accepted return due to misrepresentations by immigration
authorities).
The BIA sufficiently explained its decision. See Najmabadi, 597 F.3d at
2 17-73057
990-91 (holding the BIA adequately considered evidence and sufficiently
announced its decision).
PETITION FOR REVIEW DENIED.
3 17-73057