Opinion

Juan Rodriguez Pencheo v. Eric Holder, Jr.

  • 441 F. App'x 266
Court
Court of Appeals for the Fifth Circuit
Filed
Sep 19, 2011
Status
Unpublished
On the bench
Garza, Southwick, Haynes
Cited by
0 cases
Authority
More cited than 19.8%

The opinion

Case: 11-60025 Document: 00511605035 Page: 1 Date Filed: 09/16/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 16, 2011

No. 11-60025

Summary Calendar Lyle W. Cayce

Clerk

JUAN RODRIGUEZ PENCHEO, also known as Juan Rodriguez,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A078 992 183

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Juan Rodriguez Pencheo (Rodriguez), a native and citizen of Mexico, has

filed a petition for review of the order of the Board of Immigration Appeals (BIA)

dismissing his appeal of the immigration judge’s (IJ) denial of his application for

cancellation of removal under INA §240A(b), 8 U.S.C. § 1229b(b)(1). Rodriguez

entered the United States illegally in 1998. Following a conviction for driving

while intoxicated in 2001, Rodriguez voluntarily returned to Mexico after signing

a “Notice of Rights and Request for Disposition” known as a Form I-826. He

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-60025 Document: 00511605035 Page: 2 Date Filed: 09/16/2011

No. 11-60025

then departed the United States but returned without permission shortly

thereafter. The question, then, is whether this departure interrupts the

continuous physical presence required under §1229b for cancellation of removal.

Rodriguez contends that he did not fully understand the terms of his

voluntary return to Mexico or knowingly waive his right to an immigration

hearing and that counsel was ineffective in failing to make this and other

arguments to the IJ. The respondent correctly argues that Rodriguez did not

exhaust these claims because he did not argue them to the BIA. See Ramos-

Torres v. Holder, 637 F.3d 544, 547 (5th Cir. 2011). This court is, therefore,

without jurisdiction to review those arguments. See id.

Rodriguez also argues that In re Romalez-Alcaide, 23 I. & N. Dec. 423, 424-

29 (BIA 2002), on which the IJ and the BIA relied, is inapposite. He argues that

under § 1229b(d)(1) and (2), his voluntary return to Mexico did not break his

continuous physical presence in this country for purposes of cancellation of

removal. The respondent moves for summary affirmance, or alternatively, to

extend the briefing schedule.

Rodriguez’s argument is foreclosed by Mireles-Valdez v. Ashcroft, 349 F.3d

213, 217-19 (5th Cir. 2003). A panel of this court may not reverse Mireles-Valdez

absent circumstances that are not present in the instant case. See United States

v. Ruff, 984 F.2d 635, 640 (5th Cir. 1993).

PETITION FOR REVIEW DENIED; MOTION FOR SUMMARY

AFFIRMANCE GRANTED.

2

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