Figueroa v. Holder

FILED
NOT FOR PUBLICATION APR 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN FIGUEROA, No. 04-74050
Petitioner, Agency No. A041-328-097
v.
ORDER
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2010
San Francisco, California
Before: KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.
Petitioner seeks review of an order of the Board of Immigration Appeals
(“BIA”) affirming an immigration judge’s (“IJ”) denial of relief under former §
212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996).
The IJ denied § 212(c) relief because petitioner failed to meet the requirement “that
the alien warrants relief as a matter of discretion.” We lack jurisdiction, however,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
because “[d]iscretionary decisions, including whether or not to grant § 212(c)
relief, are not reviewable.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th
Cir. 2007) (citing 8 U.S.C. § 1252(a)(2)(B)(ii)). Petitioner’s attempt to attack the
IJ’s adverse credibility finding under the guise of a due process attack also fails.
See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001) (“a petitioner may
not create the jurisdiction that Congress chose to remove simply by cloaking an
abuse of discretion argument in constitutional garb”).
We are also barred from reviewing petitioner’s remaining arguments
because petitioner failed to exhaust his administrative remedies with respect to
those claims before the BIA. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.
2009); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
For the above stated reasons, this petition for review is DISMISSED.
-2-