Francisco Bastida-Gomez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO BASTIDA-GOMEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70943
Agency No. A201-021-886
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 17, 2023**
Phoenix, Arizona
Before: IKUTA, BADE, and BRESS, Circuit Judges.
Francisco Bastida-Gomez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his
appeal from an Immigration Judge’s (“IJ”) decision and denying his motion to
remand. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss the petition
* 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).
FILED
OCT 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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in part and deny it in part.
1. The IJ denied Bastida-Gomez’s application for special-rule
cancellation of removal under 8 U.S.C. § 1229b(b)(2), in accordance with the
Violence Against Women Act of 1994 (“VAWA”). The BIA denied Bastida-
Gomez’s motion to remand for reconsideration of his application for special-rule
cancellation of removal.
2. We lack jurisdiction to consider certain arguments made by Bastida-
Gomez because they fail to present colorable constitutional claims or legal
questions. When reviewing a denial of special-rule cancellation of removal, our
jurisdiction extends only to colorable constitutional claims and legal
questions. See 8 U.S.C. §§ 1252(a)(2)(B)(i), 1252(a)(2)(D); see also Patel v.
Garland, 142 S. Ct. 1614, 1618 (2022); Torres-Aguilar v. I.N.S., 246 F.3d 1267,
1271 (9th Cir. 2001). To be colorable, “the claim must have some possible
validity.” Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (quoting
Torres-Aguilar, 246 F.3d at 1271).
Bastida-Gomez argues the BIA erred by denying remand solely on the fact
that he had divorced his abusive spouse. But, even if we assume the BIA relied
solely on this fact, we lack jurisdiction to review Bastida-Gomez’s argument
because he neither develops the argument that this presents a constitutional claim
or legal issue nor includes pertinent legal citations in support, and we will not

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develop this argument on his behalf. See W. Radio Servs. Co. v. Qwest Corp., 678
F.3d 970, 979 (9th Cir. 2012). Because the argument does not present any
colorable constitutional claims or legal issues, we lack jurisdiction to consider it.
Patel, 142 S. Ct. at 1618; Torres-Aguilar, 246 F.3d at 1271.
Bastida-Gomez also argues that remand is required so that he may present
further evidence. This argument is similarly undeveloped and fails to present a
colorable constitutional claim or legal issue. We therefore lack jurisdiction to
review it. Patel, 142 S. Ct. at 1618.
3. Bastida-Gomez next argues that the BIA engaged in impermissible
factfinding. We have jurisdiction to consider whether the BIA impermissibly
engaged in factfinding because it raises a colorable legal question. Rodriguez v.
Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see 8 C.F.R. § 1003.1(d)(3)(iv)
(providing that “[t]he Board will not engage in factfinding” when deciding an
appeal). But this argument lacks merit. Bastida-Gomez fails to identify a single
disputed fact that the BIA found, and a discretionary determination alone does not
constitute factfinding. Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1119 (9th Cir.
2019) (“Determining whether [the petitioner] presented ‘exceptional
circumstances’ called for exercise of the agency’s discretion, not factfinding.”).
The BIA is also permitted to exercise its own discretion in the first instance. Id.
PETITION DISMISSED IN PART AND DENIED IN PART.

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