                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 28 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


EVARISTO GOMEZ,                                  No. 13-72973

               Petitioner,                       Agency No. A073-967-311

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted July 21, 2015**

Before:        CANBY, BEA, and MURGUIA, Circuit Judges.

      Evaristo Gomez, a native and citizen of Mexico, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to remand and

dismissing his appeal from an immigration judge’s (“IJ”) order pretermitting his

application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C.


          *
             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).
§ 1252. We review for substantial evidence the agency’s continuous physical

presence determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.

2006), and review de novo constitutional claims, Iturribarria v. INS, 321 F.3d 889,

894 (9th Cir. 2003). We deny in part and dismiss in part the petition for review.

      Substantial evidence supports the agency’s determination that Gomez failed

to establish the ten years of continuous physical presence required for cancellation

of removal. See 8 U.S.C. § 1229b(b)(1)(A); Juarez-Ramos v. Gonzales, 485 F.3d

509, 511-12 (9th Cir. 2007) (expedited removal interrupts an alien’s continuous

physical presence for cancellation purposes).

      The admission of evidence pertaining to Gomez’s 1999 expedited removal

order was not fundamentally unfair such that it violated his due process rights. See

Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012). Accordingly, Gomez’s

claim that the BIA violated due process in affirming the IJ’s decision also fails.

Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error for a petitioner to

prevail on a due process claim).

      To the extent that Gomez seeks to challenge his 1999 expedited removal

order, we lack jurisdiction to consider this claim. See 8 U.S.C. § 1252(a)(2)(A)(i),

(e)(2); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818-19 (9th Cir. 2004).




                                           2                                    13-72973
      Gomez has not raised, and has therefore waived, any challenge to the BIA’s

denial of his motion to remand. See Lopez-Vasquez v. Holder, 706 F.3d 1072,

1079-80 (9th Cir. 2013) (a petitioner waives a contention by failing to raise it in

the opening brief).

      PETITION FOR REVIEW DENIED in part and DISMISSED in part.




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