FILED
NOT FOR PUBLICATION FEB 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EFREN CERVANTES, No. 11-70189
Petitioner, Agency No. A077-970-105
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2014**
San Francisco, California
Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.
Petitioner Efren Cervantes (Cervantes), a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration Appeals (BIA)
dismissing his appeal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
dismiss the petition for review.
*
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).
We lack jurisdiction to review the BIA’s discretionary decision denying a
waiver of inadmissibility as provided for in 8 U.S.C. § 1182(h)(1)(B), because
Cervantes does not raise a colorable due process claim or question of law. See 8
U.S.C. § 1252(a)(2)(B)(i); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 978
(9th Cir. 2009).
Because Cervantes did not raise before the BIA his argument that the IJ
failed to specify the evidence upon which the IJ relied in weighing the seriousness
of Cervantes’ crimes, the argument is waived. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004). In any event, the IJ’s written decision reflects the
evidence relied upon, leaving Cervantes’ argument “so insubstantial and frivolous”
as to deprive the panel of jurisdiction to review it. Mendez-Castro, 552 F.3d at 979
(quoting Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008)).
Cervantes’ contention that the BIA deprived him of due process by
accepting certification of his appeal is also not colorable. See Padilla-Martinez v.
Holder, 770 F.3d 825, 830 (9th Cir. 2014) (A colorable due process claim requires
“both a violation of rights and prejudice.”). The BIA had jurisdiction to accept
certification because the IJ’s 2006 written decision was a “[d]ecision[ ] . . . in [a]
removal proceeding[ ].” 8 C.F.R. § 1003.1(b)(3), (c). Cervantes had ample
opportunity to present his case to the BIA before the agency accepted certification,
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and in fact filed two briefs. See 8 C.F.R. § 1003.1(c). Even assuming a
constitutional violation, Cervantes has failed to show prejudice because he has not
presented any “plausible scenarios in which the outcome of the proceedings would
have been different,” absent the constitutional violation. Tamayo-Tamayo v.
Holder, 725 F.3d 950, 954 (9th Cir. 2013), as amended (citation omitted).
The record conclusively belies Cervantes’ argument that the BIA’s 2010
decision did not adequately set forth the agency’s reasons for denying a hardship
waiver. The BIA identified the controlling agency decision, In re Mendez-
Moralez, 21 I. & N. Dec. 296, 300 (BIA 1996), and applied that decision to the
facts of Cervantes’ case. This Court may proceed no further in reviewing the
BIA’s discretionary decision to deny a hardship waiver. See Mendez-Castro, 552
F.3d at 979-80. Accordingly, this argument is also “so insubstantial and frivolous”
as to fall short of a colorable claim. Id. at 980.
PETITION DISMISSED.
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