Nieto v. Gonzales

MEMORANDUM ** We have reviewed the petition for review and stay motion. We conclude that petitioners Albino Gasea Nieto (Agency No. A96-061-872) and Simona Gasea Bustos (Agency No. A96-061-873) have failed to raise a colorable constitutional claim to invoke our jurisdiction over this petition for review under the REAL ID Act. See Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.2001). Accordingly, respondent’s unopposed motion to dismiss this petition for review for lack of jurisdiction in part is granted because we lack jurisdiction to review the Immigration Judge’s subjective, discretionary determination that petitioners did not demonstrate that their removal would result in exceptional and extremely unusual hardship to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). See 8 U.S.C. § 1252 (a) (2) (B) (I); Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005); Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). In addition, with respect to petitioner, Jorge Ivan Gasea Bustos (Agency No. A96-061-874), the court grants respondent’s unopposed motion for summary denial of the petition for review because this petitioner lacks a qualifying relative and is therefore ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(D) (requiring alien to show that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence”); Molina-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir.2002) (denying cancellation of removal where alien lacked a qualifying relative under the statute); United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard). All other pending motions are denied as moot. The temporary stay of removal and voluntary departure confirmed by Ninth Circuit General Order 6.4(c) and Desta v. Ashcroft, 365 F.3d 741 (9th Cir.2004), shall continue in effect until issuance of the mandate. DISMISSED IN PART, DENIED 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.