FILED
NOT FOR PUBLICATION APR 18 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO HERNANDEZ CABRERA and No. 14-72882
VALENTIA OLMOS BARAJAS,
Agency Nos. A095-444-449
Petitioners, A095-444-450
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Hugo Hernandez Cabrera and Valentia Olmos Barajas, natives and citizens
of Mexico, petition pro se for review of the Board of Immigration Appeals’
(“BIA”) order denying their motion to reconsider and reopen. Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review the denial of petitioners’ motion to
reconsider, because we cannot review the BIA’s discretionary hardship
determination. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012)
(order) (“[T]he BIA’s denial of the motion to reconsider falls outside the court’s
jurisdiction because the court cannot reconsider the discretionary, fact-based
determination that petitioners failed to demonstrate the requisite hardship.”).
Although the court retains jurisdiction over colorable questions of law and
constitutional claims, petitioners’ contention that the BIA failed to state its reasons
and show proper consideration of all factors is not supported by the record. See
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“To be colorable
in this context, . . . the claim must have some possible validity.”).
As to their motion to reopen, petitioners have not challenged the BIA’s
dispositive determination that they failed to demonstrate that the evidence
submitted with their motion was not available at the time of their removal hearing.
See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in an
opening brief are waived).
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To the extent petitioners seek review of the BIA’s April 30, 2014, order
dismissing their appeal from an immigration judge’s denial of cancellation of
removal, we lack jurisdiction because this petition for review is not timely as to
that order. See 8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not
later than 30 days after the date of the final order of removal.”).
We do not consider the extra-record evidence submitted for the first time
with petitioners’ brief because the court’s review is limited to the administrative
record. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals shall decide the
petition only on the administrative record on which the order of removal is
based[.]”).
We lack jurisdiction to consider petitioners’ requests for prosecutorial
discretion and administrative closure. See Vilchiz-Soto, 688 F.3d at 644.
We deny petitioners’ August 24, 2015, motion because we lack jurisdiction
to consider their requests for prosecutorial discretion and their unexhausted request
for adjustment of status. See id.; Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (court lacks jurisdiction to consider issues that have not been
administratively exhausted).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 14-72882