Lopez de Vidriesca v. Gonzales

MEMORANDUM ***

The facts are known to the parties, and we do not repeat them here. Petitioner Maria Soledad Lopez de Vidriesca (“Petitioner”) petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of her appeal.

To the extent that Petitioner challenges the BIA’s discretionary determination that Petitioner failed to demonstrate the requisite hardship to merit cancellation of removal under 8 U.S.C. § 1229b(b), we lack jurisdiction to review Petitioner’s claims. See Fernandez v. Gonzales, 439 F.3d 592, 596 (9th Cir.2006). We may, however, review Petitioner’s statutory and due process challenges to the BIA’s decision. See Salvador-Calleros v. Ashcroft, 389 F.3d 959, 962-63 (9th Cir.2004).

*489 Petitioner first argues that the BIA violated regulations by engaging in fact-finding in determining she was not eligible for cancellation of removal. Although the BIA does not have the authority to engage in fact-finding under 8 C.F.R. § 1003.1 (d)(3)(i), this regulation applies only to appeals filed on or after September 25, 2002, see 8 C.F.R. § 1003.3 (f); see also In re S-H-, 23 I. & N. Dec. 462, 466 (BIA 2002), and not to Petitioner’s case, in which Department of…