Thelma Acevedo Ramirez v. Eric Holder, Jr. , 504 F. App'x 604 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
THELMA ARCIRIA ACEVEDO No. 09-72367
RAMIREZ,
Agency No. A070-805-909
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Thelma Arciria Acevedo Ramirez, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) decision denying her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”). Our jurisdiction is
governed by 8 U.S.C. § 1252. We dismiss the petition for review.
We lack jurisdiction to review the BIA’s determination that Acevedo
Ramirez is not eligible for NACARA relief. See Ixcot v. Holder, 646 F.3d 1202,
1213-14 (9th Cir. 2011).
To the extent Acevedo Ramirez contends the BIA’s factual findings are
erroneous and that the BIA failed to properly consider the evidence, these
contentions do not amount to colorable constitutional claims. See Martinez-Rosas
v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“[T]raditional abuse of discretion
challenges recast as alleged due process violations do not constitute colorable
constitutional claims that would invoke our jurisdiction.”).
Acevedo Ramirez also contends that the IJ violated her due process rights
because he was biased and prejudged her case. This contention was not raised to
the BIA and is therefore unexhausted. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (this court lacks jurisdiction to review contentions not raised before
the agency).
In light of our disposition, we need not reach Acevedo Ramirez’s remaining
contentions.
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Federal regulations require that “any grant of voluntary departure shall
terminate automatically upon the filing of the petition or other judicial challenge
and the alternate order of removal . . . shall immediately take effect.” 8 C.F.R.
§ 1240.26(i); see Garfias-Rodriguez v. Holder, No. 09-72603, 2012 WL 5077137,
at * 16-20 (9th Cir. Oct. 19, 2012) (en banc). The stay granted by this court on
October 27, 2009, is lifted; however, if she complies with the requirements of 8
C.F.R. § 1240.26(i), by departing within thirty days, Acevedo Ramirez shall not be
deemed to have departed under the order of removal.
PETITION FOR REVIEW DISMISSED.
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