Hernandez-Leon v. Gonzales

MEMORANDUM ** Benita Hernandez-Leon seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) order denying Hernandez-Leon’s application for cancellation of removal. We dismiss in part and grant in part the petition for review, and remand. We lack jurisdiction to review the IJ’s discretionary determination that Hernandez-Leon failed to show exceptional and extremely unusual hardship to a qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003). Hernandez-Leon’s contention that the agency deprived her of due process by misapplying the law to the facts of her case does not state a colorable due process 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 colorable constitutional claims that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (holding that the “misapplication of case law” may not be reviewed). Hernandez-Leon’s remaining contentions that we have jurisdiction to review the IJ’s finding as to exceptional and extremely unusual hardship are also unpersuasive. The IJ granted voluntary departure for a 60-day period and the BIA streamlined and changed the voluntary departure period to 30 days. In Padilla-Padilla v. Gonzales, 463 F.3d 972, 981 (9th Cir.2006), we held “that because the BIA issued a streamlined order, it was required to affirm the entirety of the IJ’s decision, including the length of the voluntary departure period.” We therefore remand to the BIA to reinstate the 60-day voluntary departure period. PETITION FOR REVIEW DISMISSED in part and GRANTED in part; REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.