Ortiz v. Gonzales

MEMORANDUM ** Moises Olea Ortiz, 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 decision to deny his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252 . We review the agency’s physical presence determination for substantial evidence, Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 851 (9th Cir.2004), and questions of due process violations de novo, Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.2005). We deny the petition. Ortiz testified that he was not present in the United States for six months in 1997. Substantial evidence therefore supports the BIA’s conclusion that Ortiz was unable to establish that he had been continuously present in the United States for the requisite period. See 8 U.S.C. § 1229b(d)(2) (stating that an applicant for cancellation of removal fails to maintain continuous physical presence if he “has departed from the United States for any period in excess of 90 days.”). Ortiz now contends that pay stubs in the record indicate he was employed in the United States for part of 1997, but these documents do not foreclose his absence from the United States for a period in excess of 90 days. *519 Ortiz’s due process contentions fail because he has not shown prejudice. See Ngongo, 397 F.3d at 823 . PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.