Hernandez v. Holder , 381 F. App'x 694 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DORA ALICIA HERNANDEZ; NESTOR Nos. 06-74438
ANIBAL ORELLANA HERNANDEZ, 07-70401
Petitioners, Agency Nos. A073-970-693
A073-970-694
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
In these consolidated petitions, Dora Alicia Hernandez and Nestor Anibal
Orellana Hernandez, mother and son and natives and citizens of El Salvador,
petition for review of the Board of Immigration Appeals’ (“BIA”) orders
dismissing their appeal from an immigration judge’s order denying their
*
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).
applications for cancellation of removal, as well as the BIA’s subsequent order
denying their motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252.
We review de novo claims of constitutional violations in immigration proceedings.
Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). In No. 06-74438, we dismiss in
part and deny in part the petition for review. In No. 07-70401, we deny the
petition for review.
Nestor Hernandez waived any challenge to the agency’s conclusion that he
is ineligible for cancellation of removal. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259-60 (9th Cir.1996) (issues not raised and argued in a party’s opening
brief are waived).
Dora Hernandez’s equal protection claim is unavailing, because the U.S.
citizen child of a person unlawfully present in the United States is not similarly
situated to the U.S. citizen child of a person lawfully present in the United States.
See Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir. 2001) (“In order to succeed on
his [equal protection] challenge, the petitioner must establish that his treatment
differed from that of similarly situated persons.”). Dora Hernandez’s due process
claims do not raise a colorable constitutional claim. See Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“traditional abuse of discretion
2 07-70401
challenges recast as alleged due process violations do not constitute colorable
constitutional claims that would invoke our jurisdiction.”)
Petitioners fail to address, and therefore have waived any challenge to, the
BIA’s January 5, 2007, decision denying reopening. See Martinez-Serrano, 94
F.3d at 1259-60.
Petitioners’ motion to remand is denied.
In No. 06-74438: PETITION FOR REVIEW DISMISSED in part;
DENIED in part.
In No. 07-70401: PETITION FOR REVIEW DENIED.
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