Opinion
No. 08-71633.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 15, 2008.
Victor Fernandez, Jr., Esquire, Fernandez Fernandez, Downey, CA, for Petitioner.
Mark Christopher Walters, Esquire, James A. Hurley, U.S. Department of Justice, Washington, DC, Ronald E. LeFevre, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A075-623-493.
Before GOODWIN, CLIFTON and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
This is a petition for review of the Board of Immigration Appeals' ("BIA") order denying petitioner's motion to remand.
We review the BIA's ruling on a motion to remand for abuse of discretion. Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003).
We have reviewed the opposition to the motion to dismiss in part this petition for review for lack of jurisdiction, and we conclude that petitioner has failed to raise a colorable constitutional or legal claim to invoke our jurisdiction over this petition for review. See Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). Accordingly, respondent's motion to dismiss in part this petition for review for lack of jurisdiction is granted. See 8 U.S.C. § 1252(a)(2)(B)(i); Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir. 2006) (concluding that the court lacks jurisdiction to review the Board of Immigration Appeals' denial of motion to reopen for failure to establish a prima facie case if a prior adverse discretionary decision was made by the agency).
To the extent petitioner raises an ineffective assistance of counsel claim, the BIA did not abuse its discretion in denying petitioner's motion to remand on this ground because petitioner's ineffective assistance of counsel claim was previously addressed by the BIA's February 24, 2005 decision.
Accordingly, respondent's motion for summary disposition in part is granted because the questions raised by this petition for review are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).
The temporary stay of removal and voluntary departure confirmed by Ninth Circuit General Order 6.4(c) and Desta v. Ashcroft, 365 F.3d 741 (9th Cir. 2004), shall continue in effect until issuance of the mandate.
All other pending motions are denied as moot.