Rosales v. Ashcroft

89 F. App'x 87

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2004
• Docket: No. 02-72315; Agency No. A77-074-841
• Status: Published

Opinion

MEMORANDUM

**

Roselia Rosales, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an Immigration Judge’s (“U”) decision denying her application for cancellation of removal. We dismiss the petition in part and deny in part the petition for review.

We lack jurisdiction over the IJ’s “exceptional and extremely unusual hardship” determination because it involves an exercise of discretion. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003). Consequently, we pretermit review of petitioner’s challenge to the IJ’s continued physical presence finding because even were it successful, the hardship determination would still stand. See id.

Petitioner’s contention that the IJ violated due process rights by examining witnesses lacks merit, because an Immigration Judge has a duty to assist in developing the record. See Jacinto v. INS, 208 F.3d 725, 733 (9th Cir.2000). Moreover, Rosales failed to demonstrate prejudice. See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.2000) (citation omitted).

Petitioner’s contention that the BIA’s summary affirmance procedure violates due process is foreclosed by our decision in Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003).

PETITION 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 36-3.