NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTIAN ALEXIS LOPEZ-VARGAS, No. 18-71736 AKA Christian Alexis Lopez, 18-72820 Petitioner, Agency No. A205-319-852 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 21, 2023** Before: OWENS, LEE, and BUMATAY, Circuit Judges. Christian Alexis Lopez-Vargas, a native and citizen of Mexico, petitions for review of two Board of Immigration Appeals’ (BIA) decisions. The first denied Lopez-Vargas’s application for cancellation of removal, and the second denied his motion to reconsider the first order and reopen his removal proceedings to apply * 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). for asylum, withholding of removal, protections under the Convention Against Torture (CAT), and adjustment of status. To the extent that we have jurisdiction, it is under 8 U.S.C. § 1252. We deny the petition. 1. We lack jurisdiction over the initial denial of cancellation of removal, and we hold that the BIA did not abuse its discretion in denying Lopez-Vargas’s motion to reconsider the issue. Generally, “[t]his court lacks jurisdiction to review the merits of a discretionary decision to deny cancellation of removal.” Szonyi v. Barr, 942 F.3d 874, 896 (9th Cir. 2019). “Although we retain jurisdiction to review due process challenges, a petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). “Thus, to invoke our jurisdiction, a petitioner must allege at least a colorable constitutional violation.” Id. Lopez-Vargas argues that the BIA violated his due process rights by determining that the record of proceedings—which omitted part of his wife’s testimony—was sufficient to adequately review the Immigration Judge’s (IJ) decision to deny his application for cancellation of removal. However, “[t]o establish a due process violation, a petitioner must show that defects in translation prejudiced the outcome of the hearing.” Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). Lopez-Vargas has not made that showing, and we are thus divested of jurisdiction over the BIA’s initial order denying cancellation of 2 removal. See Torres-Aguilar, 246 F.3d at 1271. Next, we review Lopez-Vargas’s second challenge of the BIA’s decision declining to reconsider cancellation of removal for an abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). This claim fails, however, as Lopez-Vargas did not identify any factual errors in the agency’s discussion of his cancellation claim, and he has not shown that any omitted testimony would have changed the agency’s determination. Accordingly, the BIA’s decision was not an abuse of discretion. See 8 C.F.R. § 1003.2(b)(1); Singh v. Ashcroft, 367 F.3d 1139, 1143–44 (9th Cir. 2004). …
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