Isaiivan Huerta-Castillo v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION SEP 17 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ISAIIVAN HUERTA-CASTILLO, a.k.a. Nos. 10-70729
Isaiivan Castillo-Huerta, 10-72764

Petitioner,
Agency No. A088-723-014
v.

ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *

Respondent.

On Petitions for Review of Orders of the
Board of Immigration Appeals

Submitted September 10, 2012 **

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

In these consolidated petitions for review, Isaiivan Huerta-Castillo, a native

and citizen of Mexico, petitions for review of the Board of Immigration Appeals’

(“BIA”) decision dismissing his appeal from an immigration judge’s (“IJ”)

*
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).
removal order, and the BIA’s order denying his motion to reopen. Our jurisdiction

is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a

motion for a continuance, Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009),

and the denial of a motion to reopen, Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.

2010). We deny in part and dismiss in part the petitions for review.

The IJ did not abuse his discretion in concluding that Huerta-Castillo failed

to show good cause for a continuance where the documents requiring additional

time to review were available at least seven months prior to the hearing. See 8

C.F.R. § 1003.29 (IJ has authority to grant a continuance upon a showing of good

cause); Ahmed, 569 F.3d at 1012. It follows that Huerta-Castillo’s due process

claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).

We lack jurisdiction to review the agency’s discretionary determination that

Huerta-Castillo failed to show exceptional and extremely unusual hardship to his

qualifying relatives. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.

2009). Huerta-Castillo’s contention that the agency applied the wrong legal

standard is not supported by the record and does not amount to a colorable

constitutional or legal challenge. See id. at 978-80 (court lacks jurisdiction over

abuse of discretion challenges cloaked as constitutional or legal questions).

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 The BIA did not err in failing to address Huerta-Castillo’s arguments

regarding continuous physical presence because the BIA’s determination that he

failed to establish the requisite hardship was dispositive. See 8 U.S.C.

§ 1229b(b)(1).

We lack jurisdiction to review Huerta-Castillo’s motion to reopen as it

relates to his original three qualifying relatives because it concerns the same basic

hardship grounds as his original application for cancellation of removal. See

Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir. 2006) (where there has

already been an unreviewable discretionary determination this court lacks

jurisdiction to review the denial of a motion to reopen proceedings).

To the extent Huerta-Castillo presented non-cumulative evidence of

hardship to new qualifying relatives in his motion to reopen, the BIA did not abuse

its discretion in denying Huerta-Castillo’s motion on the ground that the evidence

he submitted was insufficient to establish prima facie eligibility for cancellation of

removal. See Garcia, 621 F.3d at 912 (prima facie eligibility is demonstrated by a

showing that there is a reasonable likelihood that the statutory requirements for

relief have been satisfied).

PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.

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