NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OLIVA ANDRADE OLAGUIVER, No. 21-70252 Petitioner, Agency No. A205-780-296 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 9, 2023** Pasadena, California Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District Judge. Oliva Andrade Olaguiver, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA) declining to reconsider its * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. dismissal of an appeal of a decision by an immigration judge (IJ) denying cancellation of removal. In particular, the BIA affirmed the IJ’s determination that Andrade “did not meet her burden of establishing continuous physical presence” in the United States for ten years because “her testimony was not credible and she did not provide sufficient supporting documentation.” See 8 U.S.C. § 1229b(b)(1)(A). “Congress has sharply circumscribed judicial review of the discretionary- relief process,” Patel v. Garland, 142 S. Ct. 1614, 1619 (2022), instructing that “no court shall have jurisdiction to review . . . any judgment” regarding certain relief, including cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B) (barring jurisdiction over § 1229b judgments). But this jurisdictional bar should not “be construed as precluding review of constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Reviewing our own jurisdiction de novo, Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir. 2010), we dismiss the petition. 1. Andrade contends that the IJ’s negative credibility determination— which undergirded the IJ’s conclusion that the continuous-presence element was not met—was “not supported by substantial evidence” or “based on the totality of circumstances.” But courts “lack jurisdiction to review facts found as part of discretionary-relief proceedings,” including a finding that a petitioner’s “testimony was not credible.” Patel, 142 S. Ct. at 1622, 1627. Continuous presence is also a factual determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006), 2 21-70252 and the Supreme Court specifically rejected the argument that the jurisdictional bar does not apply to the determination that “an applicant has fewer than 10 years of continuous presence,” Patel, 142 S. Ct. at 1622. Because Andrade merely challenges the factual basis of the IJ’s factual findings, we lack jurisdiction to consider the challenge. 2. Andrade also contends that the IJ was biased against her and deprived her of due process. Though we have jurisdiction to review constitutional claims and questions of law, 8 U.S.C. § 1252(a)(2)(D), the claims must be “at least . . . colorable,” meaning they have “some possible validity,” Torres-Aguilar v. INS, 246 …
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