Mejia-Cerrano v. Mukasey , 284 F. App'x 572 ( 2008 )


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  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    July 15, 2008
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    ISRRAEL MEJIA-CERRANO, a/k/a
    Isrrael Mejia Cerano,
    Petitioner,
    v.                                                    No. 07-9562
    Board of Immigration Appeals
    MICHAEL B. MUKASEY, United
    States Attorney General,
    Respondent.
    ORDER AND JUDGMENT *
    Before TACHA, KELLY and McCONNELL, Circuit Judges.
    Prior to his removal from the Untied States on September 5, 2007, Mr.
    Isrrael Mejia-Cerrano appealed the Immigration Judge’s determination that he did
    not qualify for discretionary cancellation of removal proceedings. Because we do
    not have jurisdiction to review matters within the IJ’s discretion under 8 U.S.C. §
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
    therefore submitted without oral argument. This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    1229b(b)(1), we, like the Board of Immigration appeals, dismiss Mr. Mejia-
    Cerrano’s appeal for lack of jurisdiction.
    Background
    Petitioner Isrrael Mejia-Cerrano is a native and citizen of Mexico. He
    entered the United States unlawfully in 1988, when he was 15 years old, and has
    continuously resided in the United States since that time. His parents are lawful
    permanent residents of the United States and two of his brothers are United States
    citizens. Mr. Mejia-Cerrano is not married and has no children.
    Mr. Mejia-Cerrano has an extensive history of arrests in the state of
    Colorado, including multiple arrests for failure to appear and contempt of court;
    four convictions for DUI offenses in 1998, 2002, and 2004; convictions for being
    a habitual traffic offender in 2002 and 2003; and a conviction for aggravated
    driving under revocation. During criminal detention for his 2004 DUI conviction,
    Mr. Mejia-Cerrano was placed in removal proceedings and was removed to
    Mexico during the pendency of this appeal.
    Mr. Mejia-Cerrano filed for Cancellation of Removal for Nonpermanent
    Residents under 8 U.S.C. § 1229b(b)(1). This petition was denied by the
    immigration judge on June 1, 2006. The IJ found that Mr. Mejia-Cerrano had
    both failed to establish “good moral character” as required to be eligible for
    cancellation, and had failed to establish “exceptional and extremely unusual
    hardship” to a United States citizen, or a legally permanent resident spouse,
    -2-
    parent, or child. Oral Decision of the Immigration Judge, June 1, 2006, App. 42.
    Mr. Mejia-Cerrano appealed the decision to the Board of Immigration Appeals,
    which dismissed his appeal because the denial of cancellation of removal was
    within the immigration judge’s discretion. We also dismiss Mr. Mejia-Cerrano’s
    appeal for lack of jurisdiction.
    Analysis
    Courts of Appeals lack jurisdiction to review discretionary denials of
    cancellation of removal unless the petition for review raises a colorable
    constitutional claim or question of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D).
    “[C]hallenges directed solely at the agency’s discretionary and factual
    determinations remain outside the scope of judicial review.” Ferry v. Gonzales,
    
    457 F.3d 1117
    , 1130 (10th Cir. 2006) (internal quotation omitted). The
    immigration judge’s discretionary determination that Mr. Mejia-Cerrano failed to
    establish “good moral character” and “exceptional and extremely unusual
    hardship” to a United States citizen, or legal permanent resident spouse, parent, or
    child, is therefore not reviewable.
    Mr. Mejia-Cerrano attempts to frame his challenge as one of due process,
    claiming that the IJ did not consider statutes or case law relating to DUI
    convictions and the good moral character aspect of applications for cancellation
    of removal; failed to consider positive factors submitted by Mr. Mejia-Cerrano to
    show his good character; did not allow Mr. Mejia-Cerrano time to rehabilitate
    -3-
    himself; and did not consider “the whole record” in determining that Mr. Mejia-
    Cerrano had failed to show the requisite hardship under § 1229b(b)(1). App. Br.
    19, 23. The record does not support these claims. But more importantly,
    “[t]raditional abuse of discretion challenges recast as alleged due process
    violations do not constitute colorable constitutional claims that would invoke our
    jurisdiction.” Martinez-Rosas v. Gonzales, 
    424 F.3d 926
    , 930 (9th Cir. 2005);
    Avendano-Espejo v. Dep’t of Homeland Sec., 
    448 F.3d 503
    , 506 (2d Cir. 2006).
    At bottom, Mr. Mejia-Cerrano’s claims are disagreements with the IJ’s balancing
    of factors that weighed into his discretionary decision. We have no jurisdiction to
    review the court’s decision for abuse of discretion.
    This appeal from the judgment/decision of the Board of Immigration
    Appeals is DISMISSED.
    Entered for the Court
    Michael W. McConnell
    Circuit Judge
    -4-
    

Document Info

Docket Number: 07-9562

Citation Numbers: 284 F. App'x 572

Judges: Kelly, McCONNELL, Tacha

Filed Date: 7/15/2008

Precedential Status: Non-Precedential

Modified Date: 8/3/2023