Andy Rivera-Mancia v. Loretta Lynch

FILED
NOT FOR PUBLICATION AUG 02 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDY SALVADOR RIVERA-MANCIA, No. 15-71696

Petitioner, Agency No. A036-277-160

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted July 26, 2016**

Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

Andy Salvador Rivera-Mancia, a native and citizen of El Salvador, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) denial of his application for a waiver of

inadmissibility under former INA § 212(c). Our jurisdiction is governed by 8

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1252. We review de novo questions of law. Vargas-Hernandez v.

Gonzales, 497 F.3d 919, 921 (9th Cir. 2007). We dismiss in part and deny in part

the petition for review.

We lack jurisdiction to review the agency’s discretionary decision to deny a

waiver under former INA § 212(c). See id. at 923 (citing 8 U.S.C.

§ 1252(a)(2)(B)(ii)). Although this court retains jurisdiction to review colorable

questions of law or constitutional claims, see 8 U.S.C. § 1252(a)(2)(D), Rivera-

Mancia’s challenges to the agency’s weighing and evaluation of his equities in

exercising its discretion are not colorable challenges that invoke our jurisdiction.

See Mendez-Castro v. Mukasey, 552 F.3d 975, 979-80 (9th Cir. 2009) (the court

lacks jurisdiction to review “an abuse of discretion argument [cloaked] in the garb

of a question of law”). Although Rivera-Mancia contends that the IJ erred in not

considering the hardship to his wife and future child because his marriage took

place when Rivera-Mancia was already in proceedings, the BIA considered this

equity as part of its de novo review. Rivera-Mancia also contends that the IJ erred

in disregarding his employment as an equity; however, the BIA determined it

would not treat this as a negative factor in its own balancing of the equities.

We lack jurisdiction to consider Rivera-Mancia’s unexhausted contentions

that his situation is analogous to that of Special Immigrant Juveniles; that the IJ

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refused a request for a Spanish interpreter or that there were translation issues; and

that the IJ should have realized that the witnesses had not been properly prepared

by Rivera-Mancia’s former counsel before being called to testify. See Tijani v.

Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to

consider legal claims not presented in an alien’s administrative proceedings before

the agency). Rivera-Mancia also failed to exhaust his contentions that the IJ erred

in relying on Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988), to require

Rivera-Mancia to establish unusual or outstanding equities, and that the IJ erred in

disregarding his coaching of his daughter’s soccer team as being an example of his

giving back to the community in which he lives. See Tijani, 628 F.3d at 1080.

Rivera-Mancia waived any challenge to the BIA’s determinations regarding

due process by failing to address them in his opening brief. See id. (a petitioner

waives an issue by failing to raise it in the opening brief).

We deny Rivera-Mancia’s motion to take judicial notice of his related

supporting documentation (Docket Entry No. 18). See Dent v. Holder, 627 F.3d

365, 371 (9th Cir. 2010) (explaining standard for review of out-of-record

evidence).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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