Luis Vilchiz-Soto v. Eric Holder, Jr. ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS JESUS VILCHIZ-SOTO and 
OBDULIA RESENDIZ-LEDESMA, No. 12-70253
Petitioners, Agency Nos.
v.  A095-194-634
ERIC H. HOLDER Jr., Attorney A079-521-595
General, ORDER
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted to Motions Panel June 11, 2012*
Filed August 9, 2012
Before: Edward Leavy, Michael Daly Hawkins, and
M. Margaret McKeown, Circuit Judges.
COUNSEL
Luis Jesus Vilchiz-Soto and Obdulia Resendiz-Ledesma, Fon-
tana, California, pro se for petitioners.
Kathryn Deangelis, Washington, D.C., filed the motion to dis-
miss for respondent, Stuart Delery, Acting Assistant Attorney
General, and Anthony W. Norwood, Senior Litigation Coun-
sel, also were on the briefs.
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
9017
9018 VILCHIZ-SOTO v. HOLDER
ORDER
Luis Jesus Vilchiz-Soto and Obdula Resendiz-Ledesma,
natives and citizens of Mexico, petition pro se for review of
the Board of Immigration Appeals’ (“BIA”) denial of their
motion to reopen removal proceedings and reconsider a previ-
ous denial of their application for cancellation of removal.
The BIA denied the motion to reconsider because petitioners
failed to demonstrate any error of fact or law in the BIA’s
September 22, 2011 decision, which was based on petitioners’
failure to demonstrate “exceptional and extremely unusual
hardship” to their qualifying relatives. 8 C.F.R.
§ 1003.2(b)(1). The BIA also denied the motion to reopen
because petitioners did not demonstrate reopening would be
proper under 8 C.F.R. § 1003.2(c)(1).
The government contends that we lack jurisdiction to
review the denial of the motion to reconsider because peti-
tioners’ challenge is nothing more than a challenge to the
BIA’s discretionary determination that petitioners failed to
establish that their removal would cause the requisite hardship
to their qualifying relatives. Petitioners contend that we do
have jurisdiction because they are not challenging the BIA’s
discretionary determinations but instead, are challenging the
BIA’s denial of the reconsideration motion on the ground that
the BIA applied the wrong legal standard and failed to con-
sider petitioners’ equities in support of their claim for cancel-
lation of removal.
Under 8 U.S.C. § 1252, we have jurisdiction to review final
orders of removal. See Hong v. Mukasey, 518 F.3d 1030,
1034 (9th Cir. 2008). However, absent a colorable legal or
constitutional claim, we lack jurisdiction to review the BIA’s
discretionary determination that an alien failed to prove that
removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child, who is a citi-
zen of the United States or an alien lawfully admitted for per-
manent residence. See 8 U.S.C. § 1252(a)(2)(B)(i) (stating in
VILCHIZ-SOTO v. HOLDER 9019
relevant part that “[n]otwithstanding any other provision of
law, no court shall have jurisdiction to review — any judg-
ment regarding the granting of relief under section . . . 1229b
[cancellation of removal]”). See also Romero-Torres v. Ash-
croft, 327 F.3d 887, 892 (9th Cir. 2003) (holding that an
exceptional and extremely unusual hardship determination is
a subjective discretionary judgment that has been carved out
of the court’s jurisdiction). We have held that traditional
abuse of discretion challenges recast as alleged due process
violations do not present sufficiently colorable constitutional
questions as to give this court jurisdiction. See Martinez-
Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (cit-
ing 8 U.S.C. § 1252(a)(2)(B)(i)) (holding that the petitioner’s
argument that the Immigration Judge (“IJ”) violated her right
to due process by misapplying the facts of her case to applica-
ble law was “nothing more than an argument that the IJ
abused his discretion, a matter over which we have no juris-
diction”).
Here, the BIA’s denial of the motion to reconsider falls out-
side the court’s jurisdiction because the court cannot recon-
sider the discretionary, fact-based determination that
petitioners failed to demonstrate the requisite hardship. See
Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997) (holding
“where Congress explicitly withdraws our jurisdiction to
review a final order of deportation, our authority to review
motions to reconsider or to reopen deportation proceedings is
thereby likewise withdrawn”); see also Fernandez v. Gon-
zales, 439 F.3d 592, 601 (9th Cir. 2006) (holding court lacks
jurisdiction to review the BIA’s denial of a motion to reopen
where the BIA already denied cancellation of removal on
direct appeal based on failure to demonstrate exceptional and
extremely unusual hardship, and the newly introduced evi-
dence spoke to the same hardship). Accordingly, we lack
jurisdiction to review the BIA’s denial of the motion to recon-
sider because petitioners’ contentions, namely that the agency
failed to properly weight their hardship evidence, does not
9020 VILCHIZ-SOTO v. HOLDER
state a colorable due process claim. See Martinez-Rosas,
supra, 424 F.3d at 930.
Further, we lack jurisdiction to review petitioners’ conten-
tion that the agency abused its discretion in denying the
motion to reopen to seek prosecutorial discretion based on the
recent order of President Obama. See 8 U.S.C. § 1252(g); see
also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th
Cir. 2001) (holding that section 1252(g) barred review of dis-
cretionary, quasi-prosecutorial decisions by asylum officers
and INS district directors to adjudicate cases or refer them to
immigration judges for hearing).
Lastly, to the extent petitioners contend they received inef-
fective assistance of counsel, we lack jurisdiction to review
unexhausted claims that could have been corrected by the
BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004).
Accordingly, we grant respondent’s motion to dismiss for
lack of jurisdiction.
All other pending motions are denied as moot. The tempo-
rary stay of removal will terminate upon issuance of the man-
date.
DISMISSED.