                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 21 2011

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




                             FOR THE NINTH CIRCUIT



JUAN MARTINEZ-BRUNO,                             No. 10-72653

               Petitioner,                       Agency No. A096-229-501

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

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Juan Martinez-Bruno, 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. 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 agency’s continuous physical presence determination,

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

and dismiss in part the petition for review.

      Substantial evidence supports the agency’s determination that Martinez-

Bruno did not meet the continuous physical presence requirement where he

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).

      We lack jurisdiction to review Martinez-Bruno’s ineffective assistance of

counsel claim because he failed to exhaust that issue before the agency. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      Martinez-Bruno’s remaining contentions are unavailing.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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