Otto Pena-Chavez v. Eric Holder, Jr.

MEMORANDUM

Otto Guillermo Pena-Chavez, a native and citizen of Guatemala, and Maria Del Carmen Pena, a native and citizen of Mexico, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their applications for cancellation of removal and denying Pena-Chavez’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252 . We review for substantial evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we review de novo due process claims, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We dismiss in part, deny in part, and grant in part the petition for review, and we remand.

We lack jurisdiction to review the agency’s discretionary determination that petitioners failed to show exceptional and extremely unusual hardship to their qualifying relatives, and petitioners do not raise a colorable due process claim challenging this hardship determination. See De Mercado v. Mukasey, 566 F.3d 810, 816 (9th Cir.2009); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th…