Bazua-Cota v. Gonzales , 466 F.3d 747 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ELEAZAR BAZUA-COTA, 
Petitioner, No. 06-70717
v.
 Agency No.
A77-282-645
ALBERTO R. GONZALES, Attorney
General, ORDER
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 18, 2006
Filed October 3, 2006
Before: Diarmuid F. O’Scannlain, Susan P. Graber and
Richard R. Clifton, Circuit Judges.
Per Curiam Order
COUNSEL
Alejandro Garcia, City of Commerce, California, for peti-
tioner Jose Eleazar Bazua-Cota.
John Hogan, Office of Immigration Litigation, United States
Department of Justice, Washington, DC, for the respondent.
17219
17220 BAZUA-COTA v. GONZALES
ORDER
PER CURIAM:
Jose Eleazar Bazua-Cota, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’
(“BIA”) final order of removal. We hold that we lack jurisdic-
tion to review the BIA’s discretionary denial of adjustment of
status, and we dismiss the petition.
On April 26, 2000, the former Immigration and Naturaliza-
tion Service issued a Notice to Appear, alleging that Petitioner
was subject to removal under Section 237(a)(1)(C)(i) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(1)(C)(i). Petitioner admitted all factual allegations
and conceded he was removable as charged. The immigration
judge (“IJ”) denied his applications for adjustment of status
and voluntary departure, as a matter of discretion, and ordered
him removed to Mexico. The BIA affirmed the IJ’s decision
without opinion.
In this petition for review, Petitioner seeks review of the
denial of his application for adjustment of status under 8
U.S.C. § 1255.1 However, the decision to deny Petitioner’s
application for adjustment of status is a discretionary determi-
nation, and is therefore unreviewable. See 8 U.S.C.
§ 1252(a)(2)(B)(i).
This court retains jurisdiction over petitions for review that
raise colorable constitutional claims or questions of law. See
8 U.S.C. § 1252(a)(2)(D); Ramirez-Perez v. Ashcroft, 336
F.3d 1001 (9th Cir. 2003); Torres-Aguilar v. INS, 246 F.3d
1267, 1271 (9th Cir. 2001). In an attempt to invoke our juris-
1
Petitioner does not challenge the discretionary denial of voluntary
departure, nor could he, because we would lack jurisdiction over such a
challenge. See 8 U.S.C. §§ 1252(a)(2)(B)(i) and 1229c(f); Tovar-Landin v.
Ashcroft, 361 F.3d 1164, 1166 (9th Cir. 2004).
BAZUA-COTA v. GONZALES 17221
diction over this petition for review, Petitioner contends that
the BIA and IJ violated his right to due process by failing to
properly weigh the equities and hardship before denying his
application for adjustment of status. This argument is an
abuse of discretion challenge re-characterized as an alleged
due process violation. This court has previously held that
abuse of discretion challenges to discretionary decisions, even
if recast as due process claims, do not constitute colorable
constitutional claims. See Torres-Aguilar v. INS, 246 F.3d at
1271. Accordingly, we grant respondent’s motion to dismiss
this petition for review for lack of jurisdiction.
All other pending motions are denied as moot. The tempo-
rary stay of removal confirmed by Ninth Circuit General
Order 6.4(c) shall continue until issuance of the mandate.
DISMISSED.
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