Hernandez v. Gonzales

163 F. App'x 479

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2006
• Docket: No. 04-74468; Agency No. A95-310-437
• Status: Published

Opinion

MEMORANDUM

**

Marvin Danilo Hernandez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the Immigration Judge’s order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We review constitutional issues de novo, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the BIA’s order denying Hernandez’s asylum application as untimely. See Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir.2005) (holding that the Court lacks jurisdiction to review the agency’s determination that an asylum application was not filed within one year after the last entry into the United States).

We also lack jurisdiction to consider Hernandez’s eligibility for withholding of removal and CAT relief, because he failed to raise these claims before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (holding that an alien’s failure to exhaust administrative remedies is a jurisdictional bar to appellate review).

We have considered and we reject Hernandez’s due process arguments.

The voluntary departure period was stayed, and that stay will expire upon issuance of the mandate. See Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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.