Gabriel Esquivel Barajas v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GABRIEL ESQUIVEL BARAJAS and No. 15-71603 ANA AZUCENA TORRES DIAZ, Agency Nos. A201-056-062 Petitioners, A201-056-063 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 13, 2018 San Francisco, California Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,** District Judge. Gabriel Esquivel Barajas and Ana Azucena Torres Diaz appeal the denial of their applications for cancellation of removal under 8 U.S.C. § 1229b(b). We DISMISS in part and DENY in part the petition for review. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. 1. Petitioners’ argument that the agency committed legal error by failing to consider their lack of criminal history is unpersuasive. To begin, the agency “does not have to write an exegesis on every contention,” but rather must show “that it consider[ed] the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (quoting Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002)). That standard was met here. To the extent Petitioners challenge the agency’s weighing of the factors, we lack jurisdiction to review this argument. See Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005) (“[W]e lack jurisdiction to review discretionary determinations of moral character.”), overruled on other grounds by Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009) (en banc); see also 8 U.S.C. § 1252(a)(2)(B)(i). Because the agency analyzed Petitioners’ moral character under the catch-all provision of 8 U.S.C. § 1101(f), this determination was discretionary. 2. Torres also contends that her due process rights were violated when the agency considered the fraudulent tax returns because “the BIA and IJ should have considered the degree of fault committed with respect to the tax fraud committed by Mrs. Torres and weigh it against the more positive factors of good moral character.” “This argument is an abuse of discretion challenge re-characterized as an alleged due process violation.” Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th 2 Cir. 2006); see id. (“[A]buse of discretion challenges to discretionary decisions, even if recast as due process claims, do not constitute colorable constitutional claims.”). We therefore lack jurisdiction to review it. Petition DISMISSED in part and DENIED in part. 3 15-71603 Court of Appeals for the Ninth Circuit ca9 9th Cir. Gabriel Esquivel Barajas v. Jefferson Sessions 11 April 2018 Agency Unpublished e3cbd17c0173535564ee5f3b86102689a6c89a9d

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