Roberto Carlos Serna Alejandro v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO CARLOS SERNA
ALEJANDRO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-17
Agency No.
A200-155-745
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
Roberto Carlos Serna Alejandro, a native and citizen of Ecuador,
petitions for review of the Board of Immigration Appeals’ order dismissing his
appeal from an immigration judge’s (“IJ’s”) decision denying his application for
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
review de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785,
* 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
JUL 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 21-17
791-92 (9th Cir. 2005). We deny in part and dismiss in part the petition for
review.
Serna Alejandro’s due process claim fails because the record does not
support his contentions that the IJ engaged in improper speculation and failed to
consider evidence. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.
2014) (“To prevail on a due-process claim, a petitioner must demonstrate both a
violation of rights and prejudice.”).
We otherwise lack jurisdiction to review the agency’s denial of
cancellation of removal as a matter of discretion where Serna Alejandro’s
remaining challenges do not raise a colorable legal or constitutional claim. See
8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1622-23
(2022) (where the agency denies a form of relief listed in 8 U.S.C.
§ 1252(a)(2)(B)(i), federal courts have jurisdiction to review constitutional
claims and questions of law, but not factual findings and discretionary
decisions).
We do not consider the materials Serna Alejandro references in his
opening brief that are not part of the administrative record. See Fisher v. INS,
79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

-- 2 of 2 --