Hilarion Pena-Gutierrez v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HILARION PENA-GUTIERREZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-75023
Agency No. A030-401-210
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2010**
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Hilarion Pena-Gutierrez, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals (“BIA”) order dismissing his appeal from an
immigration judge’s removal order and denying his motion to remand. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,
FILED
NOV 30 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-75023 2
and review for abuse of discretion the BIA’s denial of a motion to remand.
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 921, 923 (9th Cir. 2007). We
dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s discretionary denial of relief under
former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)
(repealed 1996). See 8 U.S.C. § 1252(a)(2)(B)(ii); Vargas-Hernandez, 497 F.3d at
923. Pena-Gutierrez’s contention that the BIA held that he was legally ineligible
for 212(c) relief is not supported by the record and does not amount to a colorable
claim over which we have jurisdiction. See Mendez-Castro v. Mukasey, 552 F.3d
975, 980 (9th Cir. 2009).
The BIA did not err or violate due process in conducting a de novo review of
the IJ’s discretionary denial of Pena-Gutierrez’s application for 212(c) relief. See
8 C.F.R. § 1003.1(d)(3)(ii) (“The [BIA] may review questions of law, discretion,
and judgment and all other issues in appeals from decisions of immigration judges
de novo.”).
The BIA did not abuse its discretion in denying Pena-Gutierrez’s motion to
remand proceedings because he failed to demonstrate the evidence he submitted
was previously unavailable. See 8 C.F.R. § 1003.2(c)(1).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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