FILED
NOT FOR PUBLICATION DEC 07 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSUE VASQUEZ-PENA, No. 07-70501
Petitioner, Agency No. A077-815-052
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Josue Vasquez-Pena, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying motion to reopen and
dismissing his appeal from an immigration judge’s (“IJ) decision ordering him
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
LA/Research
removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
of discretion the denial of motion to reopen, Singh v. INS, 295 F.3d 1037, 1039
(9th Cir. 2002), and we review de novo claims of constitutional violations in
immigration proceedings, Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We
dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s discretionary determination that
Vasquez-Pena failed to show exceptional and extremely unusual hardship. See
Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003).
The evidence Vasquez-Pena presented with his motion concerned the same
basic hardship grounds as were previously considered by the agency. See
Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir. 2006). We therefore lack
jurisdiction to review the BIA’s discretionary determination that reopening/remand
is not warranted based on the evidence he submitted. See id. at 600.
Vasquez-Pena’s contention that the IJ erred by refusing to hear new
evidence on remand is unavailing. The BIA’s remand to the IJ was specifically
limited to the entry of an order of removal and to consideration of voluntary
departure; the BIA retained jurisdiction over other matters. See Matter of Patel, 16
I. & N. Dec. 600, 601 (BIA 1978).
LA/Research 2 07-70501
Vasquez-Pena’s contention that the BIA erred in declining to take
administrative notice of a country condition report is not persuasive. Moreover,
Vasquez-Pena failed to demonstrate that the consideration of new evidence upon
remand would have affected the outcome of the proceedings. See Colmenar v.
INS, 210 F.3d 967, 971 (9th Cir. 2000) (requiring prejudice to prevail on a due
process challenge).
We lack jurisdiction to review the IJ’s decision not to invoke his sua sponte
authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th
Cir. 2002).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
LA/Research 3 07-70501