FILED
NOT FOR PUBLICATION JAN 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ALFREDO GARCIA-FELICIAN, No. 09-72393
Petitioner, Agency No. A099-834-656
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Jose Alfredo Garcia-Felician, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review de novo claims of due process violations. Vilchez v. Holder, 682 F.3d
1195, 1198 (9th Cir. 2012). We dismiss in part and deny in part the petition for
review.
We lack jurisdiction over the petition insofar as it seeks review of the BIA’s
discretionary determination that Garcia-Felician failed to show exceptional and
extremely unusual hardship to his qualifying relatives. See id. Garcia-Felician’s
contention that the BIA violated his due process rights by disregarding the Sanchez
Report is not supported by the record and does not amount to a colorable
constitutional claim. See id. at 1200-01; see also Mendez-Castro v. Mukasey, 552
F.3d 975, 978 (9th Cir. 2009) (court lacks jurisdiction over abuse of discretion
challenges cloaked as constitutional or legal questions).
The BIA properly determined that the IJ’s admission of the government’s
background documents on Mexico did not violate Garcia-Felician’s due process
rights because he failed to demonstrate that the admission was fundamentally
unfair and that he suffered prejudice. See Hammad v. Holder, 603 F.3d 536, 545
(9th Cir. 2010) (although the rules of evidence do not apply to immigration
hearings, proceeding must be conducted in accordance with due process standards
of fundamental fairness); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and prejudice for a due process claim).
2 09-72393
Garcia-Felician’s contention that the Attorney General exceeded his
authority in promulgating 8 C.F.R. § 1240.26(i) is foreclosed by Garfias-
Rodriguez v. Holder, No. 09-72603, 2012 WL 5077137, at * 16-20 (9th Cir. Oct.
19, 2012) (en banc) (holding that the promulgation of 8 C.F.R. § 1240.26(i) was a
proper exercise of the Attorney General’s authority). The stay granted by this
court on October 15, 2009, is lifted; however, if he complies with the requirements
of 8 C.F.R. § 1240.26(i), by departing within thirty days, Garcia Felician shall not
be deemed to have departed under the order of removal.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 09-72393