Gutierrez-Maldonado v. Gonzales , 398 F. App'x 246 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAMON GUTIERREZ-MALDONADO; Nos. 03-74173
MARCIA THERESA CASTELAN-LIRA, 04-71896
Petitioners, Agency Nos. A077-065-056
A077-065-043
v.
ALBERTO R. GONZALES, Attorney MEMORANDUM *
General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
In these consolidated petitions for review, Ramon Gutierrez-Maldonado and
Marcia Theresa Castelan-Lira, natives and citizens of Mexico, petition for review
of the Board of Immigration Appeals’ (“BIA”) orders summarily affirming an
*
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).
immigration judge’s (“IJ”) decision denying Gutierrez-Maldonado’s application
for cancellation of removal, and denying petitioners’ motion to reopen. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to reopen and de novo questions of law. Hernandez v. Mukasey,
524 F.3d 1014, 1017 (9th Cir. 2008). We dismiss in part, deny in part, and grant in
part the petition for review in No. 03-74173, and we deny the petition for review in
No. 04-71896.
We lack jurisdiction to review the agency’s discretionary determination that
Gutierrez-Maldonado failed to show exceptional and extremely unusual hardship
to a qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th
Cir. 2003).
To the extent Gutierrez-Maldonado contends that the agency violated his
due process rights by disregarding his evidence of hardship, this contention is not
supported by the record and does not amount to a colorable constitutional claim.
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.”).
The IJ granted petitioners voluntary departure for a 60-day period and the
BIA streamlined and reduced the voluntary departure period to 30 days. In
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Padilla-Padilla v. Gonzales, 463 F.3d 972, 981 (9th Cir. 2006), we held “that
because the BIA issued a streamlined order, it was required to affirm the entirety of
the IJ’s decision, including the length of the voluntary departure period.” We
therefore remand for the BIA to reinstate the 60-day voluntary departure period.
The BIA did not abuse its discretion by denying petitioners’ motion to
reopen because the BIA considered the evidence submitted and acted within its
broad discretion in determining that the evidence was insufficient to warrant
reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (The BIA’s
denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or
contrary to law.”).
Petitioners’ remaining contentions are unpersuasive.
IN No. 03-74173: PETITION FOR REVIEW DISMISSED in part;
DENIED in part; GRANTED in part; and REMANDED. Each party shall bear
its own costs for this petition for review.
IN No. 04-71896: PETITION FOR REVIEW DENIED.
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