Calvillo v. Mukasey

MEMORANDUM ** Maria Saucedo Calvillo petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying her motion *952 to reopen removal proceedings. We dismiss the petition for review. The evidence Saucedo Calvillo presented with her motion to reopen concerned the same basic hardship grounds as her application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that the evidence would not alter its prior discretionary determination that she failed to establish the requisite hardship. See id. at 600 (holding that 8 U.S.C. § 1252 (a)(2)(B)® bars this court from reviewing the denial of a motion to reopen where “the only question presented is whether [the] new evidence altered the prior, underlying discretionary determination that [the petitioner] had not met the hardship standard.”) (Internal quotations and brackets omitted). To the extent Saucedo Calviljo contends the BIA failed to consider some or all of the evidence she submitted with the motion to reopen, she has not overcome the presumption that the BIA did review the record. See Fernandez, 439 F.3d at 603 . Saucedo Calvillo’s contention that the BIA violated her due process rights by failing to rule on her request for a stay of voluntary departure pending a decision on her motion to reopen does not amount to a colorable constitutional claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“[Traditional abuse of discretion challenges recast as alleged due process violations do not constitute color-able constitutional claims that would invoke our jurisdiction”); see also Azarte v. Ashcroft, 394 F.3d 1278, 1288-89 (9th Cir.2005) (where a motion to reopen requests a stay of voluntary departure and is filed within the voluntary departure period, voluntary departure is automatically stayed). PETITION FOR REVIEW DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.