Andres Barrera-Flores v. Eric H. Holder Jr. , 363 F. App'x 542 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDRES BARRERA-FLORES, No. 08-72999
Petitioner, Agency No. A092-171-581
v.
ORDER OF DISMISSAL *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 11, 2010
Seattle, Washington
Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.
Andres Barrera-Flores (“Barrera-Flores”), a native and citizen of Mexico
who has lawfully resided in the United States since December 1990, petitions for
review of a Board of Immigration Appeals (“BIA”) decision denying his
application for cancellation of removal. We dismiss the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We lack jurisdiction to review the BIA’s discretionary decision to deny his
application for cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i);
Mendez-Castro v. Mukasey, 552 F.3d 975, 980–81 (9th Cir. 2009). While we
retain jurisdiction to review “colorable” constitutional claims, “a petitioner may
not create the jurisdiction that Congress chose to remove simply by cloaking an
abuse of discretion argument in constitutional garb . . . . To determine whether we
have jurisdiction over claims labeled as due process violations, we must look
beyond the label.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).
We have held that a petitioner did not state a colorable constitutional
challenge when she claimed “that the IJ denied her right to due process by
misapplying the facts of her case to the applicable law.” Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). Barrera-Flores contends that “the
BIA and the IJ before it, misappl[ied] the legally required future oriented analysis
for hardship,” that “the Agency . . . did not properly weigh the evidence,” and that
“[b]oth the BIA and the IJ incorrectly applied the hardship standard.”
Our review of the record convinces us that we lack jurisdiction because
Barrera-Flores has merely labeled an abuse of discretion challenge to the
discretionary hardship determination as a due process violation.
PETITION DISMISSED.
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