Fernandez-Cabrera v. Gonzales

123 F. App'x 314

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2005
• Docket: Nos. 03-72980
• Status: Published

Opinion

MEMORANDUM

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Fernando Fernandez-Cabrera and Yazmin Andrade Peredo, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s denial of their applications for cancellation of removal. We dismiss in part and grant in part the petition for review, and remand for further proceedings.

We lack jurisdiction to review the BIA’s discretionary determination that petitioners failed to demonstrate “exceptional and extremely unusual hardship.” See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003). We do not consider whether petitioners established ten years of continuous physical presence because failure to establish hardship is dis-positive. See 8 U.S.C. § 1229b(b)(l); Romero-Torres, 327 F.3d at 889.

We also lack jurisdiction over petitioners’ contention that the agency applied an incorrect legal standard in determining hardship because it is not a colorable due process claim. See Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001).

The BIA failed to consider petitioners’ contention that the IJ’s interruption of their testimony violated their due process rights. We remand so that the BIA may in the first instance determine whether alleged procedural errors deprived petitioners of a full and fair hearing. See Silva-Calderon v. Ashcroft, 371 F.3d 1135, 1137 (9th Cir.2004).

PETITION FOR REVIEW DISMISSED in part, GRANTED in part, and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.