Opinion
No. 05-75780.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 27, 2007.
Adam Vazquez Yanez, Orange, CA, pro se.
Rosa Elva Vazquez, Orange, CA, pro se.
CAC-District Counsel, Esq., Office of the District Counsel, Department of Homeland Security, Los Angeles, CA, Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Barry J. Pettinato, Esq., Jamie M. Dowd, Esq., U.S. Department of Justice, Civil Div./Office of Immigration Lit., Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A75-770-985, A75-770-986.
Before: GRABER, CLIFTON and BEA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Adam Vazquez Yanez and Rosa Elva Vazquez petition for review of the Board of Immigration Appeals' ("BIA") order upholding an immigration judge's decision denying their application for cancellation of removal and denying their motion to remand proceedings based on new evidence. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir. 2003) ("Under BIA procedure, a motion to remand must meet all the requirements of a motion to reopen and the two are treated the same."). To the extent we have jurisdiction it is conferred by 8 U.S.C. § 1252. We review de novo claims of constitutional violations in immigration proceedings. See Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the IJ's discretionary determination that Petitioners failed to show exceptional and extremely unusual hardship to a qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003).
Petitioners' contention that the agency deprived them of due process by misapplying the law to the facts of their 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).
Petitioners contend the immigration judge violated his due process rights by not allowing them more time to obtain evidence regarding the psychological and physical health of their U.S. citizen daughter. The BIA considered the additional evidence, however, and found that it did not satisfy the hardship standard. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (requiring prejudice to prevail on a due process challenge). We are not persuaded that Lopez's removal results in the deprivation of his children's cognizable rights. See Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1012-13 (9th Cir. 2005).
Finally, the evidence Petitioners presented with their motion to remand concerned the same basic hardship grounds as their 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 discretionary determination that the evidence was insufficient to establish a prima facie case of hardship. See id. at 601 (holding that if "the BIA determines that a motion to reopen proceedings in which there has already been an unreviewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief," 8 U.S.C. § 1252(a)(2)(B)(i) bars this court from revisiting the merits).