Oscar Colunga-Guzman 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NOT FOR PUBLICATION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
OSCAR COLUNGA-GUZMAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-74756
Agency No. A098-266-406
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2013**
San Francisco, California
Before: SCHROEDER, HAWKINS, and MURGUIA, Circuit Judges.
Oscar Colunga-Guzman, a native and citizen of Mexico, petitions from the
Board of Immigration Appeals’ (“BIA”) decision denying cancellation of removal
because he failed to demonstrate good moral character. All of Colunga-Guzman’s
FILED
FEB 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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arguments relate to his attempt to invoke the Fifth Amendment privilege against
self-incrimination when questioned before the Immigration Judge (“IJ”) about an
arrest.
Colunga-Guzman first contends that the BIA violated his Fifth Amendment
privilege by upholding the IJ’s adverse inference drawn from the invocation. The
BIA may permissibly draw such an adverse inference from a noncitizen’s silence,
even if that silence was the result of a proper invocation of the Fifth Amendment
privilege. Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). Colunga-
Guzman further contends that the BIA was biased and violated his Due Process
rights by relying solely on his silence. There is, however, no indication in the
record that the IJ or the BIA exhibited overt bias or abdicated their roles as neutral
adjudicators. See Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir. 2007).
Colunga-Guzman’s final contention is that the BIA erred in finding that he
lacked good moral character solely on the basis of such an adverse inference. We
lack jurisdiction to review discretionary determinations, 8 U.S.C. § 1252(a)(2)(B),
and this determination, made under the catchall provision of 8 U.S.C. § 1101(f),
was purely discretionary. Lopez-Castellanos v. Gonzales, 437 F.3d 848, 854 (9th
Cir. 2006).
Petition for review DENIED in part and DISMISSED in part.

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