Reyes-Perrusquia v. Gonzales

171 F. App'x 116

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2006
• Docket: No. 03-74165; Agency Nos. A75-744-870, A75-744-871
• Status: Published

Opinion

MEMORANDUM

**

Alfonso Reyes-Perrusquia and Olivia Flores Martinez, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) order denying their applications for cancellation of removal. To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252. We review de novo due process claims. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the IJ’s determination that Petitioners failed to demonstrate the requisite “exceptional and extremely unusual hardship.” See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.2005) (whether an alien demonstrated exceptional and extremely unusual hardship is not reviewable under 8 U.S.C. § 1252). We do not consider whether Petitioners established ten years of continuous physical presence, because their failure to establish the requisite hardship is dispositive. See 8 U.S.C. § 1229b(b)(l); Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir.2003) (noting that an applicant must establish continuous physical presence, good moral character and hardship to qualify for relief).

Petitioners also contend that the IJ denied them due process by making sarcastic and disparaging remarks. Petitioners’ due process challenge fails because they have not demonstrated that they were prejudiced by the IJ’s conduct. See Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir.1998). Likewise, Petitioners failed to establish prejudice from the BIA’s refusal to consider evidence of the increasing incidence and morbidity of asthma when their testimony did not indicate that their son’s asthma was severe or would go untreated in Mexico. Cf. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 877 (9th Cir.2003) (en banc).

PETITIONER FOR REVIEW DISMISSED in part and 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 36-3.