Serrano v. Holder

FILED
NOT FOR PUBLICATION SEP 23 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

EMMANUEL ANDRES SERRANO, No. 05-75410

Petitioner, Agency No. A040-491-882

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted September 13, 2010 **

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

Emmanuel Andres Serrano, a native and citizen of the Philippines, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order summarily

affirming an immigration judge’s (“IJ”) removal order. We have jurisdiction under

8 U.S.C. § 1252. We review de novo questions of law, Vargas-Hernandez v.

*
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).
Gonzales, 497 F.3d 919, 921 (9th Cir. 2007), and we dismiss in part and deny in

part the petition for review.

We lack jurisdiction to review the agency’s discretionary denial of relief

under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C.

§ 1182(c) (repealed 1996). See 8 U.S.C. § 1252(a)(2)(B)(ii); Vargas-Hernandez,

497 F.3d at 923 (“Discretionary decisions, including whether or not to grant

§ 212(c) relief, are not reviewable.”). Serrano does not raise a colorable due

process challenge to the discretionary determination. See Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). Because the discretionary

determination is dispositive, we do not reach Serrano’s remaining contentions

regarding his eligibility for section 212(c) relief.

The BIA did not act ultra vires or violate due process when it remanded

Serrano’s case to the IJ for entry of an order of removal. See Lolong v. Gonzales,

484 F.3d 1173, 1178 (9th Cir. 2007) (overruling Molina-Camacho v. Ashcroft, 393

F.3d 937 (9th Cir. 2004) and explaining that the BIA may reinstate an IJ’s

underlying removal order).

The government’s motion to hold proceedings in abeyance is denied as

moot.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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