Alejandro Mendez-Madero v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION DEC 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO MENDEZ-MADERO, No. 15-71135
Petitioner, Agency No. A040-004-125
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Alejandro Mendez-Madero, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order sustaining the
Department of Homeland Security’s appeal from an immigration judge’s decision
granting cancellation of removal. Our jurisdiction is governed by 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review de novo constitutional claims and questions of law.
Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part
and dismiss in part the petition for review.
Because Mendez-Madero was found removable under 8 U.S.C.
§ 1227(a)(2)(B)(i) based on his conviction for an offense relating to a controlled
substance, our jurisdiction is limited to colorable constitutional claims or questions
of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); Cheuk Fung S-Yong v. Holder, 600 F.3d
1028, 1033 (9th Cir. 2010) (8 U.S.C. § 1252(a)(2)(C) restricts review of final
orders of removal based on certain enumerated crimes, including controlled
substance offenses, but the court retains jurisdiction where the petition raises
constitutional claims or questions of law).
Mendez-Madero has not established a due process violation, where the BIA
did not err in declining to consider new evidence Mendez-Madero submitted with
his brief on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (“[T]he Board will not engage
in factfinding in the course of deciding appeals.”); Lata v. INS, 204 F.3d 1241,
1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien must show
error and prejudice); cf. Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012)
(“Where the BIA fails to follow its own regulations and makes factual findings, it
commits an error of law . . . .” (quotation marks and citation omitted)).
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Mendez-Madero’s contention that the BIA failed to address rehabilitation as
a factor in its decision is not supported by the record.
Mendez-Madero does not raise any other colorable claim that would invoke
our jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005) (“traditional abuse of discretion challenges recast as alleged due process
violations do not constitute colorable constitutional claims”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 15-71135