Francisco Bastida-Gomez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2023
• Docket: 21-70943
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO BASTIDA-GOMEZ, No. 21-70943

Petitioner, Agency No. A201-021-886

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 17, 2023** Phoenix, Arizona

Before: IKUTA, BADE, and BRESS, Circuit Judges.

Francisco Bastida-Gomez, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his

appeal from an Immigration Judge’s (“IJ”) decision and denying his motion to

remand. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss the petition

* 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). in part and deny it in part.

1. The IJ denied Bastida-Gomez’s application for special-rule

cancellation of removal under 8 U.S.C. § 1229b(b)(2), in accordance with the

Violence Against Women Act of 1994 (“VAWA”). The BIA denied Bastida-

Gomez’s motion to remand for reconsideration of his application for special-rule

cancellation of removal.

2. We lack jurisdiction to consider certain arguments made by Bastida-

Gomez because they fail to present colorable constitutional claims or legal

questions. When reviewing a denial of special-rule cancellation of removal, our

jurisdiction extends only to colorable constitutional claims and legal

questions. See 8 U.S.C. §§ 1252(a)(2)(B)(i), 1252(a)(2)(D); see also Patel v.

Garland, 142 S. Ct. 1614, 1618 (2022); Torres-Aguilar v. I.N.S., 246 F.3d 1267,

1271 (9th Cir. 2001). To be colorable, “the claim must have some possible

validity.” Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (quoting

Torres-Aguilar, 246 F.3d at 1271).

Bastida-Gomez argues the BIA erred by denying remand solely on the fact

that he had divorced his abusive spouse. But, even if we assume the BIA relied

solely on this fact, we lack jurisdiction to review Bastida-Gomez’s argument

because he neither develops the argument that this presents a constitutional claim

or legal issue nor includes pertinent legal citations in support, and we will not

2 develop this argument on his behalf. See W. Radio Servs. Co. v. Qwest Corp., 678

F.3d 970, 979 (9th Cir. 2012). Because the argument does not present any

colorable constitutional claims or legal issues, we lack jurisdiction to consider it.

Patel, 142 S. Ct. at 1618; Torres-Aguilar, 246 F.3d at 1271.

Bastida-Gomez also argues that remand is required so that he may present

further evidence. This argument is similarly undeveloped and fails to present a

colorable constitutional claim or legal issue. We therefore lack jurisdiction to

review it. Patel, 142 S. Ct. at 1618.

3. Bastida-Gomez next argues that the BIA engaged in impermissible

factfinding. We have jurisdiction to consider whether the BIA impermissibly

engaged in factfinding because it raises a colorable legal question. Rodriguez v.

Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see 8 C.F.R. § 1003.1(d)(3)(iv)

(providing that “[t]he Board will not engage in factfinding” when deciding an

appeal). But this argument lacks merit. Bastida-Gomez fails to identify a single

disputed fact that the BIA found, and a discretionary determination alone does not

constitute factfinding. Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1119 (9th Cir.

2019) (“Determining whether [the petitioner] presented ‘exceptional

circumstances’ called for exercise of the agency’s discretion, not factfinding.”).

The BIA is also permitted to exercise its own discretion in the first instance. Id.

PETITION DISMISSED IN PART AND DENIED IN PART.