                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                            APR 23 2014

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

ROGELIO OROS-LUCAS, a.k.a. Rogelio               No. 12-71860
Oros,
                                                 Agency No. A095-761-633
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted April 16, 2014**

Before:        GOULD, BERZON, and BEA, Circuit Judges.

       Rogelio Oros-Lucas, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ order that dismissed his appeal from an

immigration judge’s (“IJ”) decision denying his application for cancellation of

removal. We have jurisdiction pursuant to 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 agency’s continuous physical presence determination,

Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008), and we deny the

petition for review.

      Substantial evidence supports the agency’s determination that Oros-Lucas

did not meet the continuous physical presence requirement. Oros-Lucas testified

that he accepted voluntary departure instead of appearing before an IJ during the

relevant statutory time period. See id. at 1117–18 (petitioner’s testimony that he

had the opportunity to appear before an IJ but chose to depart instead is sufficient

to establish presence-breaking voluntary departure).

      The BIA did not address whether Oros-Lucas accepted voluntary departure

on the basis of misrepresentations made to him concerning the effect on him of

such departure. See Ibarra-Flores v. Gonzales, 439 F.3d 614,619–20 (9th Cir.

2006). The misrepresentation issue was not, however, exhausted before the

agency, so we may not address it.

      In light of this disposition, we need not reach Oros-Lucas’ remaining

contentions.

      PETITION FOR REVIEW DENIED.




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