Alcaraz-Martinez v. Holder

                                                                           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                              NOT FOR PUBLICATION                           DEC 07 2009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



 JUAN MIGUEL ALCARAZ-                             No. 05-76692
 MARTINEZ,
                                                  Agency No. A035-476-149
               Petitioner,

   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.

        Juan Miguel Alcaraz-Martinez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order affirming an

immigration judge’s (“IJ”) removal order and denying his application for a

          *
             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).

IH/Research
§ 212(c) waiver of inadmissability. Our jurisdiction is governed by 8 U.S.C. §

1252. We review de novo claims of due process violations in immigration

proceedings, Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir. 2001), and we

dismiss in part and deny in part the petition for review.

        We lack jurisdiction to review the BIA’s discretionary denial of Alcaraz-

Martinez’s application for a § 212(c) waiver of inadmissability. See 8 U.S.C.

§ 1252(a)(2)(B); Palma-Rojas v. INS, 244 F.3d 1191, 1192 (9th Cir. 2001) (per

curiam).

        Alcaraz-Martinez’s contention that the BIA violated his due process rights

by disregarding his evidence of hardship and misapplying the law to the facts of

his case is not supported by the record and does not amount to a colorable due

process claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

        Contrary to Alcaraz-Martinez’s contention, the BIA did not engage in

impermissible fact-finding in the course of deciding his appeal. Cf. Brezilien v.

Holder, 565 F.3d 1163, 1171 (9th Cir. 2009). The BIA was not required to defer to

the IJ’s determination that Alcaraz-Martinez warranted a grant of § 212(c) relief as

a matter of discretion. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review

questions of . . . discretion . . de novo.”).

        PETITION FOR REVIEW DISMISSED in part; DENIED in part.


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