                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 01 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RAFAEL RODRIGUEZ PEDRAZA,                        No. 07-71439

               Petitioner,                       Agency No. A095-406-729

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Rafael Rodriguez Pedraza, a native and citizen of Mexico, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s denial of his application for cancellation of

removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for


          *
             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).
substantial evidence the BIA’s continuous physical presence determination, Lopez-

Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir. 2004), 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 BIA’s conclusion that Rodriguez Pedraza

did not meet his burden of establishing continuous physical presence, see 8 U.S.C.

§ 1229b(b)(1)(A), where the testimony of his three witnesses was materially

inconsistent regarding Rodriguez Pedraza’s place and duration of residence after

entry, cf. Lopez-Alvarado, 381 F.3d at 851-52.

      We do not consider Rodriguez Pedraza’s hardship contention because his

failure to establish continuous physical presence is dispositive. See 8 U.S.C.

§ 1229b(b)(1)(A).

      We lack jurisdiction to review the BIA’s July 18, 2007, order denying

Rodriguez Pedraza’s motion to reconsider because he failed to timely petition for

review of that decision. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003).

      Rodriguez Pedraza’s due process claim is foreclosed by Falcon-Carriche v.

Ashcroft, 350 F.3d 845 (9th Cir. 2003).

      We lack jurisdiction to review Rodriguez Pedraza’s contention that the

agency acted arbitrarily and capriciously in violation of the Administrative


                                           2                                     07-71439
Procedure Act in issuing its streamlining regulations. See 5 U.S.C. §§ 702, 703; 28

U.S.C. § 1331.

      Rodriguez Pedraza’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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