FILED
NOT FOR PUBLICATION JAN 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEONEL PENA-SANCHEZ, No. 06-72049
Petitioner, Agency No. A075-530-186
v.
*
MEMORANDUM
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Leonel Pena-Sanchez, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
Immigration Judge’s (“IJ”) removal order. Our jurisdiction is governed by
*
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).
8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512
F.3d 1163, 1166 (9th Cir. 2008), and we dismiss in part, deny in part, and grant in
part the petition for review.
We lack jurisdiction to review the BIA’s discretionary determination that
Pena-Sanchez failed to show exceptional and extremely unusual hardship. See
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We are not
persuaded that Pena-Sanchez’s removal results in the deprivation of his children’s
rights. See Urbano De Malaluan v. INS, 577 F.2d 589, 594 (9th Cir. 1978).
We reject Pena-Sanchez’s contention the BIA engaged in impermissible
fact-finding. See 8 C.F.R. § 1003.1(d)(3)(ii) (BIA may review questions of law,
discretion, and judgement de novo).
The agency declined to entertain Pena-Sanchez’s motion to reopen to
consider additional evidence in support of his cancellation of removal application
without the benefit of our decision in Fernandes v. Holder, 619 F.3d 1069, 1074
(9th Cir. 2010) (“[T]he IJ’s jurisdiction on remand from the BIA is limited only
when the BIA expressly retains jurisdiction and qualifies or limits the scope of the
remand to a specific purpose.”). See also Matter of M-D-, 224 I. & N. Dec. 138,
141-42 (BIA 2007) (IJ has authority to consider additional evidence on remand “if
it is material, was not previously available, and could not have been discovered or
2 06-72049
presented at the former hearing.”). We therefore remand for proceedings
consistent with this disposition.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part; and
GRANTED in part; REMANDED.
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