Gabriel Esquivel Barajas v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2018
• Docket: 15-71603
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.