FELIX PALENCIA, AKA Felix Palencia Marroquin v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIX PALENCIA, AKA Felix Palencia
Marroquin,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 14-70105
Agency No. A091-786-082
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Felix Palencia, a native and citizen of Guatemala, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider the
BIA’s order dismissing his appeal from an immigration judge’s (“IJ”) discretionary
denial of cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252.
FILED
JUN 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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We review for abuse of discretion the denial of a motion to reconsider and review
de novo constitutional claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion or violate due process in denying
Palencia’s motion to reconsider, where the BIA’s decision on reconsideration
corrected the factual error that Palencia had sought to correct in his motion to
reconsider, and the BIA determined that the error did not materially affect the
outcome of Palencia’s proceedings. See 8 U.S.C. § 1229a(c)(6)(C) (a motion to
reconsider specifies “errors of law or fact in the previous order”); Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a due process challenge, an alien
must show error and prejudice). Specifically, the BIA acknowledged that
Palencia’s 1998 conviction under California Penal Code § 273.5 had been vacated,
that he had been subsequently convicted under California Penal Code § 243(e) for
the same offense, and that the prior orders of the BIA and the IJ had misstated the
statute under which Palencia was convicted.
To the extent Palencia challenges the BIA’s conclusion that the agency’s
misstatement of the statute under which he was convicted did not affect the
balancing of factors in denying cancellation of removal as a matter of discretion,
we lack jurisdiction to review that discretionary determination. See 8 U.S.C.
14-70105 2

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§ 1252(a)(2)(B),(D).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
14-70105 3

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