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 2023-08

Wei v. Garland ( 2023 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                             AUG 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHUBIAO WEI,                                    No. 21-565
Agency No.
Petitioner,                        A088-294-119
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 18, 2023**
Before:      SCHROEDER, RAWLINSON, and BADE, Circuit Judges.
Shubiao Wei, a native and citizen of China, petitions pro se for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for adjustment of status.
Our jurisdiction is governed by
    8 U.S.C. § 1252
    . We review de novo questions
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of law and constitutional claims. Mohammed v. Gonzales,
    400 F.3d 785
    , 791-
92 (9th Cir. 2005). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s discretionary denial of Wei’s
application for adjustment of status. See
    8 U.S.C. § 1252
    (a)(2)(B)(i); Patel v.
Garland,
    142 S. Ct. 1614
    , 1622-23 (2022) (where the agency denies a form of
relief listed in
    8 U.S.C. § 1252
    (a)(2)(B)(i), federal courts have jurisdiction to
review constitutional claims and questions of law, but not factual findings and
discretionary decisions). Wei fails to establish that the agency relied on
improper factors, see, e.g., Ridore v. Holder,
    696 F.3d 907
    , 920-21 (9th Cir.
2012) (denial of discretionary relief involved consideration of record as a
whole, including immigration history), and he otherwise does not raise a
colorable legal or constitutional claim over which we retain jurisdiction, see
    8 U.S.C. § 1252
    (a)(2)(D); see also Torres-Aguilar v. INS,
    246 F.3d 1267
    , 1271
(9th Cir. 2001) (abuse of discretion argument cloaked as due process claim not
colorable).
We do not consider the affidavit referenced in Wei’s opening brief that is
not part of the administrative record. See Fisher v. INS,
    79 F.3d 955
    , 963-64
(9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2                                     21-565