                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 09 2010

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




                             FOR THE NINTH CIRCUIT



FELIX CCAIHUARI-HOYOS,                           No. 07-74383

               Petitioner,                       Agency No. A070-455-619

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

               Respondent.



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

                             Submitted June 29, 2010 **

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

       Felix Ccaihuari-Hoyos, a native and citizen of Peru, petitions for review of

the Board of Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s (“IJ”) removal order. Our jurisdiction is governed by 8 U.S.C. § 1252.

We review de novo legal questions and due process challenges. Vasquez-Zavala v.


          *
             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).
Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We deny in part and dismiss in part

the petition for review.

      Ccaihuari-Hoyos’s contention that the government should be estopped from

placing him in removal proceedings rather than deportation proceedings is not

persuasive. Ccaihuari-Hoyos has not shown that the Immigration and

Naturalization Service (“INS”) engaged in affirmative misconduct when it waited

six years between issuing him an Order to Show Cause and lodging a Notice To

Appear with the immigration court. See Cortez-Felipe v. INS, 245 F.3d 1054, 1057

(9th Cir. 2001) (holding that estoppel may be warranted against the government on

account of affirmative misconduct, but not negligence).

      We lack jurisdiction to consider Ccaihuari-Hoyos’s contention regarding the

IJ’s duty to hold an evidentiary hearing because he did not raise that issue before

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

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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