NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CELEDONIO SILVA-OLAYO, Nos. 15-70960 15-73076 Petitioner, Agency No. A200-878-130 v. WILLIAM P. BARR, Attorney General, ORDER AND MEMORANDUM* Respondent. On Petition for Review of Orders of the Board of Immigration Appeals Argued and Submitted March 8, 2019 Portland, Oregon Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District Judge. Celedonio Silva-Olayo, a native and citizen of Mexico, petitions for review of two orders from the Board of Immigration Appeals (BIA). In the first order, the BIA dismissed an appeal from an immigration judge (IJ) denying Silva’s application for cancellation of removal. In the second, the BIA denied a motion to * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. reopen based on Silva’s alleged incompetency during the proceedings. We dismiss in part and deny in part. 1. We dismiss Silva’s first petition for review, challenging the IJ’s denial of Silva’s cancellation application, for lack of jurisdiction.1 We lack jurisdiction to review an IJ’s denial of cancellation of removal except where a colorable constitutional or legal question relating to the cancellation determination has been raised. 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We also lack jurisdiction to review “a legal claim not presented in administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Here, any such colorable constitutional or legal claims pertaining to Silva’s cancellation determination were not presented to the BIA and so have not been exhausted. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc). We therefore lack jurisdiction over those claims. 2. The BIA did not abuse its discretion by denying Silva’s motion to reopen as to due process claims related to his alleged incompetency. Silva has not 1 As part of this petition for review, Silva also requested that we take judicial notice of certain documents purporting to establish his eligibility for voluntary departure. As Silva raised no arguments relating to voluntary departure in his briefs, we DENY the motion. 2 shown that the failure of his attorney or the IJ to recognize his alleged incompetency prejudiced him. “As a general rule, an individual may obtain relief for a due process violation only if he shows that the violation caused him prejudice, meaning the violation potentially affected the outcome of the immigration proceeding.” Gomez- Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). “To show prejudice, [a petitioner] must present plausible scenarios in which the outcome of the proceedings would have been different if a more elaborate process were provided.” Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (alteration in original) (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) ...
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