Villegas v. Gonzales

MEMORANDUM ** This is a petition for review from an order by the Board of Immigration Appeals affirming the Immigration Judge’s denial of petitioners’ application for cancellation of removal. We have reviewed the record and petitioners’ filings in this court. This petition for review is appropriate for summary disposition under Ninth Circuit Rule 3-6 because petitioners did not prove they had been “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application” as required for cancellation of removal. See 8 U.S.C. § 1229b(b). Accordingly, this petition for review is denied. Petitioners’ argument that their rights to due process and equal protection under *756 the law were violated when they were placed into removal proceedings instead of deportation proceedings has already been rejected by this court. Absent evidence of affirmative misconduct by the government, the decision of when to commence proceedings is within the government’s discretion and does not violate the alien’s rights to due process or equal protection. Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir.2001). There is no evidence of affirmative misconduct on the government’s part in this case. Accordingly, we do not have jurisdiction to review the government’s decision to commence proceedings after April 1, 1997. “We construe [8 U.S.C. § ] 1252(g), which removes our jurisdiction over ‘decision[s] ... to commence proceedings’ to include not only a decision in an individual case whether to commence, but also when to commence, a proceeding.” Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir.2002). All other pending motions are denied as moot. The temporary stay of removal confirmed by Ninth Circuit General Order 6.4(c) shall continue in effect until issuance of the mandate. DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.