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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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,
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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
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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
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