Melendez v. Gonzales

MEMORANDUM ^**

Alejandro Hernandez Melendez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We dismiss the petition for review.

The evidence Hernandez Melendez presented with his motion to reopen concerned the same basic hardship grounds as his application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s determination that the evidence Hernandez Melendez submitted with his motion to reopen would not alter its prior discretionary determination that he failed to establish the requisite hardship. See id. at 600 (holding that 8 U.S.C. § 1252(a)(2)(B)(i) bars this court from reviewing the denial of a motion to reopen where “the only question presented is whether [the] new evidence altered the prior, underlying discretionary determination that [the petitioner] had not met the hardship standard.”) (Internal quotations and brackets omitted).

Hernandez Melendez’s contention that the agency deprived him of due process by misapplying the law to the facts of his case does not state a colorable due process claim. 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 that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (holding that the “misapplication of case law” may not be reviewed).

PETITION FOR REVIEW DISMISSED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.