                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

OSCAR AVILA-RAMIREZ,                            No.    15-73140

                Petitioner,                     Agency No. A200-705-657

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                               Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Oscar Avila-Ramirez, 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”) order denying cancellation of removal. Our jurisdiction

is governed by 8 U.S.C. § 1252. We review for substantial evidence factual


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
findings and review de novo questions of law. Hernandez-Mancilla v. Holder, 633

F.3d 1182, 1184 (9th Cir. 2011). We deny the petition for review.

      Substantial evidence supports the agency’s finding that Avila-Ramirez is

ineligible for cancellation of removal for failure to demonstrate the requisite

continuous physical presence, where he conceded that he remained outside the

United States for a period of more than 90 days during the relevant period. See 8

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

continuous physical presence). Avila-Ramirez cites no authority that ineffective

assistance of counsel provides an exception to the continuous physical presence

requirement. Cf. Hernandez-Mancilla, 633 F.3d at 1182 (finding no ineffective

assistance of counsel due process violation, where the actions of counsel occurred

outside the context of removal proceedings).

      Because Avila-Ramirez failed to establish statutory eligibility for

cancellation of removal, the IJ did not violate due process in pretermitting his

application and declining to hold a merits hearing. See 8 C.F.R. § 1240.8(d) (alien

has the burden of proof in establishing eligibility for relief from removal); Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an

alien must show error and prejudice).

      Avila-Ramirez’s contention regarding the applicability of 8 U.S.C.

§ 1427(b) is unavailing, where that statute addresses residency requirements for


                                          2                                       15-73140
naturalization.

      We do not address Avila-Ramirez’s contentions regarding ineffective

assistance of counsel, where the BIA made its determination even assuming he

could establish an ineffective assistance claim. See Najmabadi v. Holder, 597 F.3d

983, 992 (9th Cir. 2010) (court’s review is limited to the grounds actually relied

upon by the BIA).

      PETITION FOR REVIEW DENIED.




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