Rivera v. Gonzales

MEMORANDUM ** In these consolidated petitions, Jose Antonio Arroyo Rivera and his wife Maria Flavia Arroyo seek review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) order denying their applications for cancellation of removal, and the BIA’s order denying their motion to reopen removal proceedings. We dismiss the petitions for review. We lack jurisdiction to review the agency’s discretionary determination that the petitioners 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). The petitioners’ contentions that the BIA failed to consider all relevant hardship evidence, failed to adequately review the IJ’s decision and failed to adequately explain its December 13, 2005 decision are not supported by the record and do not amount to colorable due process claims. 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.”). The evidence the petitioners submitted with their motion to reopen concerned the same basic hardship grounds as their applications 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 the petitioners failed to establish the requisite hardship. See id. at 600 (holding that 8 U.S.C. § 1252 (a)(2)(B)(i) 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 *486 met the hardship standard.”) (Internal quotations and brackets omitted). Our conclusion that we lack jurisdiction to review the BIA’s determination that the petitioners’ evidence did not warrant reopening forecloses their arguments that the BIA denied them due process by failing to consider and address the entirety of the evidence they submitted with the motion to reopen and by failing to adequately explain its reasons for denying the motion to reopen. See Fernandez, 439 F.3d at 603-04 . We do not consider petitioners’ contentions that the evidence submitted with the motion to reopen was previously unavailable because the BIA’s conclusion that the evidence would not alter the hardship determination is dispositive. PETITIONS FOR REVIEW DISMISSED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.