Gabriel Esquivel Barajas v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL ESQUIVEL BARAJAS and No. 15-71603
ANA AZUCENA TORRES DIAZ,
Agency Nos. A201-056-062
Petitioners, A201-056-063
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 13, 2018
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**
District Judge.
Gabriel Esquivel Barajas and Ana Azucena Torres Diaz appeal the denial of
their applications for cancellation of removal under 8 U.S.C. § 1229b(b). We
DISMISS in part and DENY in part the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
1. Petitioners’ argument that the agency committed legal error by failing to
consider their lack of criminal history is unpersuasive. To begin, the agency “does
not have to write an exegesis on every contention,” but rather must show “that it
consider[ed] the issues raised, and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (quoting Efe v.
Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002)). That standard was met here.
To the extent Petitioners challenge the agency’s weighing of the factors, we
lack jurisdiction to review this argument. See Moran v. Ashcroft, 395 F.3d 1089,
1091 (9th Cir. 2005) (“[W]e lack jurisdiction to review discretionary
determinations of moral character.”), overruled on other grounds by Sanchez v.
Holder, 560 F.3d 1028 (9th Cir. 2009) (en banc); see also 8 U.S.C. §
1252(a)(2)(B)(i). Because the agency analyzed Petitioners’ moral character under
the catch-all provision of 8 U.S.C. § 1101(f), this determination was discretionary.
2. Torres also contends that her due process rights were violated when the
agency considered the fraudulent tax returns because “the BIA and IJ should have
considered the degree of fault committed with respect to the tax fraud committed
by Mrs. Torres and weigh it against the more positive factors of good moral
character.” “This argument is an abuse of discretion challenge re-characterized as
an alleged due process violation.” Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th
2
Cir. 2006); see id. (“[A]buse of discretion challenges to discretionary decisions,
even if recast as due process claims, do not constitute colorable constitutional
claims.”). We therefore lack jurisdiction to review it.
Petition DISMISSED in part and DENIED in part.
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