Hernandez v. Gonzales

MEMORANDUM ^**

The motion to proceed in forma pauperis is granted.

Francisco Vicens Hernandez petitions for review of a Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. We review the denial of a motion to reconsider for an abuse of discretion. See Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.2003).

The BIA did not abuse its discretion by denying petitioner’s motion to reconsider. Petitioner’s claim that his constitutional rights were violated because he was not permitted to apply for suspension of deportation relief, but instead could only apply for cancellation of removal, is foreclosed. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir.2002) (holding that petitioner, who would have been eligible for suspension of deportation, did not have “settled expectations” of being placed in deportation proceedings by presenting herself to INS before the effective date of IIRIRA, and concluding that repeal of suspension of deportation is not impermissibly retroactive). Petitioner was placed in removal proceedings on September 20, 2001, well after IIRIRA’s April 1, 1997 effective date, and thus, suspension of deportation is not available to petitioner. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 974 (9th Cir .2006).

Respondent’s unopposed motion for summary disposition is granted because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard). Accordingly, this petition for review is denied.

All other pending motions are denied as moot. The temporary stay of removal and voluntary departure confirmed by Ninth Circuit General Order 6.4(c) and Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), shall continue in effect until issuance of the mandate.

PETITION FOR REVIEW DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.