Garcia v. Gonzales

MEMORANDUM *** 1. We lack jurisdiction to review the IJ’s discretionary decision to deny cancellation of removal for failure to show the requisite hardship. See 8 U.S.C. § 1252 (a)(2)(B)®; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005). To the extent we can review due process challenges, see Martinez-Rosas, 424 F.3d at 930 , we find no colorable *863 constitutional violation. First, the IJ applied the proper standard. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006-07 (9th Cir.2003). Second, petitioner had notice that both the asylum and cancellation applications would be considered at the removal hearing, and did not seek a continuance to present additional evidence until the end of the hearing. It was not an abuse of discretion, and certainly not a violation of due process, for the IJ to deny the continuance at that late time. 2. We also lack jurisdiction to review the BIA’s denial of the motion to reopen because petitioner never filed a petition for review of this final order. See Stone v. INS, 514 U.S. 386, 405 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995); Martinez-Serrano v. INS, 94 F.3d 1256, 1257-58 (9th Cir.1996). In any event, the BIA properly denied the motion because petitioner was not entitled to another opportunity to apply for cancellation of removal. PETITION DENIED in part and DISMISSED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.