Ortiz Limones v. Holder

FILED
NOT FOR PUBLICATION MAR 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLORENCIO ORTIZ LIMONES; No. 07-71952
CONCEPCION DIAZ DELGADO,
Agency Nos. A095-180-619
Petitioners, A075-672-801
v.
ORDER WITHDRAWING
ERIC H. HOLDER JR., Attorney General, MEMORANDUM DISPOSITION
AND DENYING PETITION FOR
Respondent. REHEARING
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
The memorandum disposition filed February 11, 2010 is withdrawn. A
superseding memorandum disposition is being filed concurrently with this order.
The panel has voted to deny the petition for rehearing, filed February 25,
2010.
Subsequent petitions for rehearing or rehearing en banc may be filed.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FLORENCIO ORTIZ LIMONES; No. 07-71952
CONCEPCION DIAZ DELGADO,
Agency Nos. A095-180-619
Petitioners, A075-672-801
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2010**
Pasadena, California
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
Florencio Ortiz Limones and Concepcion Diaz Delgado, husband and wife,
petition pro se for review of a decision of the Board of Immigration Appeals
*
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).
affirming the immigration judge’s denial of petitioners’ application for cancellation
of removal. We dismiss the petition in part and deny it in part.
We have jurisdiction under 8 U.S.C. § 1252(a) to review petitioners’ claim
that the immigration judge denied them due process by refusing to permit their
daughter to testify regarding her health issues. The immigration judge did not
violate due process, because he fully credited Ms. Delgado’s testimony as well as
the documentary medical evidence regarding her daughter’s health. Petitioners
have made no showing that their daughter’s testimony would have been non-
cumulative. Zolotukhin v. Gonzales, 417 F.3d 1073, 1074-76 (9th Cir. 2005),
Morgan v. Mukasey, 529 F.3d 1202, 1210-11 (9th Cir. 2008), and Kaur v. Ashcroft,
388 F.3d 734, 737 (9th Cir. 2004), are therefore inapposite. Nor have petitioners
shown prejudice. See Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002).
Petitioners fail to present a colorable claim that the immigration judge
violated due process by failing to cite controlling law. See Mendez-Castro v.
Mukasey, 552 F.3d 975, 978 (9th Cir. 2009); Don v. Gonzales, 476 F.3d 738, 744
(9th Cir. 2007).
Petitioners fail to present a colorable claim that the immigration judge
violated due process because the immigration judge’s hardship analysis on Ms.
Delgado’s application was tainted by the judge’s erroneous conclusion that Mr.
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Limones had committed a crime of moral turpitude. Petitioners have made no
showing that the immigration judge’s error affected the judge’s hardship analysis.
Furthermore, any error was harmless in light of the Board of Immigration Appeals’
independent and untainted review of the hardship issue as applied to both
petitioners. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).
The BIA determined that Mr. Limones was not convicted of a qualifying
crime involving moral turpitude. We therefore do not address petitioners’
contention that the IJ erred by concluding otherwise.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
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