                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 01 2011

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




                              FOR THE NINTH CIRCUIT



MIGUEL ANGEL ORTEGA-FITZ,                         No. 09-70689

               Petitioner,                        Agency No. A077-093-651

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

               Respondent.



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

                             Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Miguel Angel Ortega-Fitz, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

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

removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial


          *
             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).
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 Ortega-Fitz

did not meet the continuous physical presence requirement where the record

contains a signed Notice and Request for Disposition form (“I-826”) in Spanish

stating that Ortega-Fitz was giving up his right to a hearing before an IJ and

agreeing to return to Mexico, see Vasquez-Lopez v. Ashcroft, 343 F.3d 961, 974

(9th Cir. 2003) (per curiam), and Ortega-Fitz testified that the contents of the I-826

were explained to him, see Gutierrez, 521 F.3d at 1117-18 (petitioner’s testimony

that he had the opportunity to go before an IJ and chose to depart instead is

sufficient to establish presence-breaking voluntary departure).

      Ortega-Fitz’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED.




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