Mundo v. Gonzales , 211 F. App'x 596 ( 2006 )

MEMORANDUM^**

Herlindo Palacios Mundo and Concepcion Munoz Ocampo, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ decision adopting and affirming an immigration judge’s decision denying their applications for cancellation of removal for failure to establish that their removal would cause their qualifying relatives exceptional and extremely unusual hardship. They contend that the IJ and BIA deprived them of due process. We deny the petition for review.

Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review the BIA’s and IJ’s discretionary hardship determination. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005). We have jurisdiction, however, to consider colorable due process claims. See id. We review constitutional claims de novo. Id. The petitioners must establish that the proceeding was so fundamentally unfair that they were prevented from reasonably presenting their case. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). They also must show prejudice, meaning that “the outcome of the proceeding may have been affected by the alleged violation.” Id.

The petitioners contend that the IJ denied them due process by receiving an offer of proof rather than allowing their United States citizen son to testify regarding hardship. They argue that the IJ prevented their attorney from developing their case because the son could have testified about how his parents’ removal would affect him and about his heart murmur and its effect on his activities. As respondent notes, however, the petitioners could have included this information in the offer of proof. Accordingly, they have not established prejudice. See id.

The petitioners contend that they were deprived of due process because the IJ was biased and relied on improper speculation and personal opinion in her consideration of their son’s medical condition. We disagree with this characterization of the record. Cf. Reyes-Melendez v. INS, 342 F.3d 1001, 1006-08 (9th Cir.2003) (holding that IJ violated due process by abandoning role as neutral fact-finder).

Finally, the petitioners contend that the BIA denied them due process by failing to consider their arguments and evidence. This contention lacks merit because the BIA’s decision shows that it considered and rejected the petitioners’ arguments.

PETITION FOR REVIEW DENIED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.