NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OMAR JIMENEZ MAGANA, No. 21-229 Agency No. Petitioner, A205-319-814 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 7, 2023** Pasadena, California Before: M. SMITH, HAMILTON,*** and COLLINS, Circuit Judges. Omar Jimenez Magana was born in Mexico in 1990 and entered the United States in 2000 with his mother. After they came to the United States, unknown * 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 David F. Hamilton, United States Circuit Judge for the Court of Appeals for the Seventh Circuit, sitting by designation. persons killed Magana’s father in Mexico for unknown reasons. During removal proceedings, Magana applied for cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture (CAT). An Immigration Judge (IJ) denied all relief. The Board of Immigration Appeals (BIA) found no error in the IJ’s decision and incorporated portions of that decision as its own. We review the BIA’s decision as well as the portions of the IJ’s opinion that the BIA incorporated. Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014). We treat the BIA’s factual findings as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s determinations of law de novo. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). Cancellation of Removal To qualify for cancellation of removal, an applicant must show, among other elements, that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). The IJ and BIA reviewed Magana’s evidence asserting that his U.S.-citizen daughter needs his financial assistance and would suffer emotionally from their separation. The IJ found, and the BIA affirmed, that his evidence did not meet the high statutory 2 21-229 standard of “exceptional and extremely unusual hardship.” That was a discretionary hardship determination that this court does not have jurisdiction to review. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Garland, 142 S. Ct. 1614, 1618, 1622 (2022); Romero-Torres v. Ashcroft, 327 F.3d 887, 891–92 (9th Cir. 2003). Although we retain jurisdiction over colorable legal and constitutional claims, see 8 U.S.C. § 1252(a)(2)(D); Patel, 142 S. Ct. at 1623, Magana’s argument that the agency made a legal error by failing to consider all relevant evidence is not supported by the record. See Vilchez v. Holder, 682 F.3d 1195, 1198–1200 (9th Cir. 2012) (acknowledging jurisdictional exception but dismissing due process challenge on the merits). As in Vilchez, the record here shows …
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