                                                                             FILED
                             NOT FOR PUBLICATION                             SEP 03 2015

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



                             FOR THE NINTH CIRCUIT


ERNESTO GUDINO-BARBOSA,                          No. 13-72433

               Petitioner,                       Agency No. A200-868-454

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

               Respondent.


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

                             Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Ernesto Gudino-Barbosa, 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 his application for

cancellation of removal and his request for a continuance, and denying his motion


          *
             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).
to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse

of discretion the denial of a continuance and motion to remand, and review for

substantial evidence findings of fact. Singh v. Holder, 638 F.3d 1264, 1268-69,

1274 (9th Cir. 2011); Movsisian v. Ashcroft, 395 F.3d 1095, 1097-98 (9th Cir.

2005). We deny in part and dismiss in part the petition for review.

      Substantial evidence supports the agency’s determination that Gudino-

Barbosa failed to establish the requisite ten years of continuous physical presence

in the United States, where his testimony indicated that he left the United States

sometime between January and May 2000 and returned in October 2000. See 8

U.S.C. § 1229b(b)(1)(A), (d)(2) (departure in excess of 90 days breaks continuous

physical presence).

      The agency did not abuse its discretion in denying Gudino-Barbosa’s request

for a continuance, because he testified that he did not have any documents to show

when he visited Mexico, and otherwise failed to demonstrate good cause. See 8

C.F.R. § 1003.29 (IJ may grant a continuance for good cause shown); see Singh,

638 F.3d at 1274 (“[T]he IJ [is] not required to grant a continuance based on . . .

speculations.”).




                                           2                                   13-72433
      The BIA did not abuse its discretion in denying Gudino-Barbosa’s motion to

remand, where he failed to establish the evidence he submitted was previously

unavailable and material. See 8 C.F.R. § 1003.2(c)(1).

      We lack jurisdiction over Gudino-Barbosa’s claim that he was denied due

process, because he failed to exhaust this claim before the BIA. See Tijani v.

Holder, 628 F.3d 1071, 1080 (9th Cir. 2010).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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