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Pena-Gutierrez v. Holder

United States Court of Appeals, Ninth Circuit
Nov 30, 2010
405 F. App'x 138 (9th Cir. 2010)


No. 07-75023.

Submitted November 16, 2010.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2)(C).

Filed November 30, 2010.

Edgardo Quintanilla, Quintanilla Law Firm, Inc., Sherman Oaks, CA, for Petitioner.

Kevin James Conway, Esquire, U.S. Department of Justice, Washington, DC, Chief Counsel Ice, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A03(M01-210.

Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.


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

Hilarion Pena-Gutierrez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals ("BIA") order dismissing his appeal from an immigration judge's removal order and denying his motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, and review for abuse of discretion the BIA's denial of a motion to remand. Vargas-Hernandez v. Gonzales, 497 F.3d 919, 921, 923 (9th Cir. 2007). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the BIA's discretionary denial of relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (repealed 1996). See 8 U.S.C. § 1252(a)(2)(B)(ii); Vargas-Hernandez, 497 F.3d at 923. Pena-Gutierrez's contention that the BIA held that he was legally ineligible for 212(c) relief is not supported by the record and does not amount to a colorable claim over which we have jurisdiction. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009).

The BIA did not err or violate due process in conducting a de novo review of the IJ's discretionary denial of Pena-Gutierrez's application for 212(c) relief. See 8 C.F.R. § 1003.1(d)(3)(ii) ("The [BIA] may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.").

The BIA did not abuse its discretion in denying Pena-Gutierrez's motion to remand proceedings because he failed to demonstrate the evidence he submitted was previously unavailable. See 8 C.F.R. § 1003.2(c)(1).


Summaries of

Pena-Gutierrez v. Holder

United States Court of Appeals, Ninth Circuit
Nov 30, 2010
405 F. App'x 138 (9th Cir. 2010)
Case details for

Pena-Gutierrez v. Holder

Case Details

Full title:Hilarion PENA-GUTIERREZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 30, 2010


405 F. App'x 138 (9th Cir. 2010)