Serna Alejandro v. Garland ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                             JUL 6 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ROBERTO CARLOS SERNA                            No. 21-17
    ALEJANDRO,                                      Agency No.
    A200-155-745
    Petitioner,
    v.                                             MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted June 26, 2023**
    Before:      CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
    Roberto Carlos Serna Alejandro, a native and citizen of Ecuador,
    petitions for review of the Board of Immigration Appeals’ order dismissing his
    appeal from an immigration judge’s (“IJ’s”) decision denying his application for
    cancellation of removal. Our jurisdiction is governed by 
    8 U.S.C. § 1252
    . We
    review de novo constitutional claims. Mohammed v. Gonzales, 
    400 F.3d 785
    ,
    *
    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).
    791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for
    review.
    Serna Alejandro’s due process claim fails because the record does not
    support his contentions that the IJ engaged in improper speculation and failed to
    consider evidence. See Padilla-Martinez v. Holder, 
    770 F.3d 825
    , 830 (9th Cir.
    2014) (“To prevail on a due-process claim, a petitioner must demonstrate both a
    violation of rights and prejudice.”).
    We otherwise lack jurisdiction to review the agency’s denial of
    cancellation of removal as a matter of discretion where Serna Alejandro’s
    remaining challenges do not raise a colorable legal or constitutional claim. See
    
    8 U.S.C. § 1252
    (a)(2)(B)(i), (D); Patel v. Garland, 
    142 S. Ct. 1614
    , 1622-23
    (2022) (where the agency denies a form of relief listed in 
    8 U.S.C. § 1252
    (a)(2)(B)(i), federal courts have jurisdiction to review constitutional
    claims and questions of law, but not factual findings and discretionary
    decisions).
    We do not consider the materials Serna Alejandro references in his
    opening brief that are not part of the administrative record. See Fisher v. INS,
    
    79 F.3d 955
    , 963-64 (9th Cir. 1996) (en banc).
    The temporary stay of removal remains in place until the mandate issues.
    PETITION FOR REVIEW DENIED in part; DISMISSED in part.
    2                                       21-17
    

Document Info

Docket Number: 21-17

Filed Date: 7/6/2023

Precedential Status: Non-Precedential

Modified Date: 7/6/2023