Lamas Flores v. Holder , 391 F. App'x 667 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FELIPE DE JESUS LAMAS FLORES; Nos. 05-70324
EMELIA GARCIA DE LAMAS, 05-74221
Petitioners, Agency Nos. A077-374-934
A077-374-935
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
In this consolidated petition for review, Felipe De Jesus Lamas Flores and
Emelia Garcia De Lamas, natives and citizens of Mexico, petition for review of the
Board of Immigration Appeals’ (“BIA”) orders dismissing their appeal from an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
immigration judge’s (“IJ”) decision denying their applications for cancellation of
removal, and denying their motion to reopen. Our jurisdiction is governed by 8
U.S.C. § 1252. We review de novo constitutional challenges, Ram v. INS, 243
F.3d 510, 516 (9th Cir. 2001). We dismiss in part and deny in part the petition for
review in No. 05-70324, and grant the petition for review in No. 05-74221 and
remand.
We lack jurisdiction to review the BIA’s determination that petitioners failed
to establish the requisite hardship. See Fernandez v. Gonzales, 439 F.3d 592, 596
(9th Cir. 2006). Contrary to petitioners’ contentions, the agency’s interpretation of
the hardship standard falls within the broad range of permissible interpretations of
the statute. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005-06 (9th Cir.
2003). Petitioners failed to exhaust the contention that the IJ made erroneous
factual findings. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
We are in receipt of Petitioners’ Re-Submission of Supplemental
Documentation, which attaches a FedEx delivery record. If credited, the delivery
record shows that petitioners’ motion to reopen was timely received by the BIA.
We remand No. 05-74221 to the BIA for further consideration of the timeliness of
2 05-70324/05-74221
petitioners’ motion to reopen in light of the delivery record. See INS v. Ventura,
537 U.S. 12, 17 (2002).
In No. 05-70324: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
In No. 05-74221: PETITION FOR REVIEW GRANTED;
REMANDED.
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