Cruz-Hernandez v. Gonzales

229 F. App'x 659

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2007
• Docket: No. 05-74877
• Status: Published

Opinion

MEMORANDUM

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Felipe Cruz-Hernandez and Leticia Barrales-Ramos, husband and wife and natives and citizens of Mexico, seek review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for cancellation of removal. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the agency’s discretionary determination that Petitioners’ failed to show exceptional and extremely unusual hardship to a qualifying relative. See Romero-Torres v. Ashcroft, 827 F.3d 887, 890-91 (9th Cir.2003). Because the agency’s hardship determination is dispositive, we do not consider Petitioners’ challenge to the agency’s finding with regard to continuous physical presence. See 8 U.S.C. § 1229b(b)(l); Romero-Torres, 327 F.3d at 889 (noting that an applicant must establish continuous physical presence, good moral character and hardship to a qualifying relative to be eligible for relief).

Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we conclude that the BIA properly denied Petitioners’ motion to remand based on ineffective assistance of counsel for failure to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), see Reyes v. Ashcroft, 358 F.3d 592, 597-98 (9th Cir.2004) (compliance with Lozada is necessary where ineffective assistance is not plain on the face of the record).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.