Escobar v. Gonzales

MEMORANDUM ** Angel Gutierrez Escobar and his wife Racquel Gutierrez seek review of a decision of the Board of Immigration Appeals (“BIA”) denying their motion to reconsider an earlier order upholding an immigration judge’s order denying their application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252 and we review de novo claims of constitutional violations in immigration proceedings. See Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review. The BIA was within its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision affirming the IJ’s order. See 8 C.F.R. § 1003.2 (b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176 , 1180 n. 2 (9th Cir.2001) (en banc). Petitioners’ equal protection claim is unavailing because the citizen child of a person unlawfully present in the United States is not similarly situated to the citizen child of a person lawfully present in the United States. See Dillingham v. INS, 267 F.3d 996, 1007 (9th Cir.2001) (“In order to succeed on his [equal protection] challenge, the petitioner must establish that his treatment differed from that of similarly situated persons.”). Their contention that the agency deprived them of due process by misapplying the law to the facts of their case does not state a color-able due process claim. See MartinezRosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.