NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALFREDO HERNANDEZ-VELAZCO, Nos. 18-70860 19-70878 Petitioner, Agency No. A206-784-656 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 10, 2021** San Francisco, California Before: WARDLAW and GOULD, Circuit Judges, and CAIN,*** District Judge. Alfredo Hernandez-Velazco (“Hernandez”), a native and citizen of Mexico, applied for cancellation of removal for certain nonpermanent residents under 8 * 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 James David Cain, Jr., United States District Judge for the Western District of Louisiana, sitting by designation. U.S.C. § 1229b(b), citing the hardship of his removal to his United States citizen children. The Immigration Judge (“IJ”) dismissed the application and the Board of Immigration of Appeals (“BIA”) (collectively, “the Agency”) denied his appeal. Hernandez then filed a motion to reopen proceedings with the BIA, submitting new evidence of his child’s educational needs and his own rehabilitation from a history of substance use and domestic violence. The BIA denied the motion, finding that the new evidence did not establish a prima facie case for cancellation of removal or otherwise overcome its prior discretionary denial. Hernandez petitions for review of the Agency determinations that he did not meet the criteria for cancellation of removal and of the BIA’s denial of his motion to reopen proceedings. We dismiss the petition with respect to the discretionary decisions and deny the remainder. 1. We lack jurisdiction to review a challenge to the Agency’s discretionary determinations in cancellation of removal proceedings.1 Fernandez v. Gonzales, 1 Hernandez asserts that this rule was partially modified by the Supreme Court’s statement in Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020), that “questions of law” in 8 U.S.C. § 1252(a)(2)(D) include the application of a legal standard to undisputed or established facts, and that this definition preserves the court’s jurisdiction over the discretionary denial of his cancellation of removal where the underlying facts were undisputed, 140 S.Ct. at 1067. Long before Guerrero, however, this court recognized that a “question of law” under § 1252(a)(2)(D) includes “mixed questions of law and fact” – that is, the application of law to “undisputed facts.” Gasparyan v. Holder, 707 F.3d 1130, 1133–34 (9th Cir. 2013) (citing Husyev v. Mukasey, 528 F.3d 1172, 1178–79 (9th Cir. 2008)). Accordingly, Guerrero does nothing to alter this court’s jurisprudence under § 1252. 2 439 F.3d 592, 603 (9th Cir. 2006); see also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003). Accordingly, Hernandez’s general abuse of discretion challenges to the denial of cancellation of removal and denial of his motion to reopen are not reviewable and the petition must be dismissed in this regard. …
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