Patel v. Ashcroft ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 23, 2003
Charles R. Fulbruge III
Clerk
No. 02-60574
Summary Calendar
BIPINKUMAR A. PATEL; HINABEN BIPINKUMAR PATEL,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A93-069-334
BIA No. A93-069-335
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Bipinkumar Ambala Patel and Hinaben Bipinkumar Patel petition
this court for review of the Board of Immigration Appeals’ (“BIA”)
decision affirming the Immigration Judge’s (“IJ”) order denying the
Patels’ application for cancellation of removal pursuant to 8
U.S.C. § 1229b(b)(1), as well as their request for voluntary
departure. The Patels argue that the IJ denied their due process
rights when she did not permit them to introduce into evidence
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-60574
-2-
documents that would have shown their continuous presence in the
United States and that their children will suffer if they are
removed.
This court lacks jurisdiction to review the merits of the
Patels’ petition for review because any argument by the Patels that
their children will suffer extreme hardship if they are removed is
subject to the discretion of the Attorney General. 8 U.S.C. §§
1229b(b) and 1252(a)(2)(B); Rodriguez v. Ashcroft, 253 F.3d 797,
799 (5th Cir. 2001); Moosa v. INS, 171 F.3d 994, 1012-13 (5th Cir.
1999).
Notwithstanding the court’s lack of jurisdiction to review the
merits of the instant petition, the court retains jurisdiction to
review the Patels’ due process argument. Balogun v. Ashcroft, 270
F.3d 274, 277-78 & 278 n.11 (5th Cir. 2001); Gonzalez-Torres v.
INS, 213 F.3d 899, 901 (5th Cir. 2000)(citing Kalaw v. INS, 133
F.3d 1147, 1151 (9th Cir. 1997)). However, inasmuch as the omitted
documents do not establish their continual presence in the United
States, the Patels fail to carry their burden of establishing
prejudice by the purported error. Anwar v. INS, 116 F.3d 140, 144
(5th Cir. 1997).
The petition to review is DENIED.