German Hernandez Aquino v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION DEC 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERMAN CARLOS HERNANDEZ No. 13-73443
AQUINO,
Agency No. A095-707-709
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
German Carlos Hernandez Aquino, 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”) decision denying his application for
adjustment of status as a matter of discretion. Our jurisdiction is governed by 8
*
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).
U.S.C. § 1252. We review de novo questions of law and constitutional claims.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part
and dismiss in part the petition for review.
Contrary to Hernandez Aquino’s contention, the agency applied the correct
legal standards and considered all relevant factors, including rehabilitation and
individual offenses, in determining that Hernandez Aquino did not warrant a
favorable exercise of discretion. See Vargas-Hernandez v. Gonzales, 497 F.3d
919, 923-24 (9th Cir. 2007) (for discretionary determinations, the agency should
consider and weigh all relevant factors); see also Najmabadi v. Holder, 597 F.3d
983, 987, 990 (9th Cir. 2010) (“[t]he [BIA] does not have to write an exegesis on
every contention” (citation and internal quotation marks omitted)). Nor did the
agency improperly create a legal “bar” to adjustment of status based on gang
association. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 810 (9th Cir. 1994) (the
BIA may “consider evidence of conduct that does not result in a conviction” in
deciding whether to grant discretionary relief based on the balance of equities).
The agency did not err or violate Hernandez Aquino’s right to due process in
admitting evidence and testimony pertaining to his association with a gang. See
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003) (“in immigration
proceedings [t]he sole test for admission of evidence is whether the evidence is
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probative and its admission is fundamentally fair” (citation and internal quotation
marks omitted)).
Hernandez Aquino’s contention regarding the IJ’s alleged bias is not
supported by the record. See Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir.
2007).
We lack jurisdiction to review Hernandez Aquino’s remaining challenges to
the agency’s discretionary denial of adjustment of status because they do not
constitute colorable constitutional claims or questions of law that would invoke our
jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Bazua-Cota v. Gonzales, 466 F.3d 747,
748-49 (9th Cir. 2006) (while this “court retains jurisdiction over petitions for
review that raise colorable constitutional claims or questions of law,” a petitioner
may not attack a discretionary decision simply by phrasing his abuse of discretion
challenge as questions of law).
We reject Hernandez Aquino’s contention that his appeal required review by
a three-member panel of the BIA. See 8 C.F.R. § 1003.1(e)(6).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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