Yolanda Pereyra-Flores v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2019
• Docket: 17-70357
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YOLANDA PEREYRA-FLORES, No. 17-70357

Petitioner, Agency No. A038-821-260

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Yolanda Pereyra-Flores, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing the immigration judge’s

(“IJ”) denial of her applications for adjustment of status, and denial of a waiver

under 8 U.S.C. § 1182(i) and a waiver under § 1227(a)(1)(H). Our jurisdiction is

* 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). governed by 8 U.S.C. § 1252. We review de novo constitutional claims and

questions of law, and we review for substantial evidence the agency’s factual

determinations. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We

deny in part and dismiss in part the petition for review.

Pereyra-Flores’s due process contention regarding the lack of a complete

record is unavailing because she failed to show that she was prejudiced by the IJ’s

failure to record a portion of the removal hearing on October 5, 2010. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice

to prevail on a due process challenge).

To the extent the agency relied on its adverse credibility determination to

deny the waiver under 8 U.S.C. § 1227(a)(1)(H) as a matter of discretion, and the

determination is subject to review, the agency applied the correct legal standard

and its decision is supported by substantial evidence. See Mendez-Castro v.

Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (concluding that the agency applies

the correct legal standard where it expressly cites and applies relevant case law in

rendering its decision); Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010)

(adverse credibility determination supported under the totality of the

circumstances).

We lack jurisdiction to review Pereyra-Flores’s contentions regarding the

agency’s denial of the waiver under 8 U.S.C. § 1182(i) for failure to show

2 17-70357 hardship, where she does not raise a colorable constitutional claim or question of

law that would invoke our jurisdiction. See 8 U.S.C. § 1252(a)(2)(B); Corona-

Mendez v. Holder, 593 F.3d 1143, 1146 (9th Cir. 2010) (the court lacks jurisdiction

to review the agency’s denial of a waiver under 8 U.S.C. § 1182(i) unless review

of the petition involves constitutional claims or questions of law); Martinez-Rosas

v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (“to be colorable . . . the claim must

have some possible validity”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 17-70357