NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVA ANDRADE OLAGUIVER,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 21

- 70252 Agency No. A205

- 780

- 296

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 9, 2023 * * Pasadena, California Before: HURWITZ and R. NELSON, Circuit Judges, and KANE, ** * District Judge. Oliva Andrade Olaguiver , a native and citizen of Mexico , petitions for review
of a n order of the Board of Immigration Appeals (BIA) declining to reconsider its

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. 

# FILED

MAY 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 21

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dismissal of an appeal of a decision by an i mmigration j udge (IJ) den ying
cancellation of removal. In particular, the BIA affirmed the IJ’s determination that
Andrade “did not meet her burden of establishing continuous physical presence ” in the United States for ten years because “ her testimony was not credible and she did not provide sufficient supporting documentation.” See 8 U.S.C. § 1229b(b)(1)(A). “Congress has sharply circumscribed judicial review of the discretionary

relief process , ” Patel v. Garland , 142 S. Ct. 1614, 1619 (2022) , instructing that “no court shall have jurisdiction to review

. . . any judgment ” regarding certain relief, including c ancellation of removal , s ee 8 U.S.C. § 1252(a)(2)(B) ( barring jurisdiction

over § 1229b judgments)

. But this jurisdictional bar should not “be construed a s precluding review of constitutional claims or questions of law

. ” 8 U.S.C. § 1252(a)(2)(D). R eviewing our own jurisdiction de novo, Taslimi v. Holder , 590 F.3d 981, 984 (9th Cir. 2010) , we dismiss the petition.
1. Andrade contends that the IJ’s negative credibility determination

— which undergirded the IJ’s conclusion that the continuous

- presence element was not

met

— was “not supported by substantial evidence” or “based on the totality of
circumstances.” But courts “ lack jurisdiction to review fact s found as part of discretionary

- relief proceedings , ” including a finding that a petitioner’s “testimony
was not credible.” Patel , 142 S. Ct. at 1622 , 1627

. C ontinuous presence is also a factual determination , Ibarra

- Flores v. Gonzale s , 439 F.3d 614, 618 (9th Cir. 2006) ,3 21

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and the Supreme Court specifically rejected the argument that the jurisdictional bar
does not apply to the determination that “ an applicant has fewer than 10 years of continuous presence , ” Patel , 142 S. Ct. at 1622

. Because Andrade merely challenges the factual basis of the IJ’s factual findings , we lack jurisdiction to consider the challenge.
2. Andrade also contends that the IJ was biased against her and deprived
h er of due process

. T hough we have jurisdiction to review const itutional claims and questions of law , 8 U.S.C. § 1252(a)(2)(D), the claims must be “at least

. . . colorable,” meaning they have “some possible validity , ” Torres

- Aguilar v. INS , 246 F.3d 1267, 1271 (9th Cir. 2001) (quoting U nited States v. Sarkisian , 197 F.3d 966, 983 (9th Cir. 1999)).
Andrade argues that the IJ acted as a “partisan adjudicator.” Yet Andrade only poin t s to a comment from the IJ that she was giving Andrade’s “ counsel a hard time because he hasn’t prepared his case at all .” To es tablish a due process violation
in the immigration context , the petitioner must show that “the proceeding was ‘so fundamentally unfair that the alien was prevented from reasonably presenting his

case ’” and “ prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation .” Colmenar v. INS , 210 F.3d 967, 971 (9th Cir. 2000) (quoting Platero

- Cortez v. INS , 804 F.2d 1127, 1132 (9th C ir. 1986) )

. Th e IJ’s m ild admonishment

— just before the IJ found in Andrade’s favor on the4 21

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issue being discussed

— falls far short of th is standard

. Andrade also complains that the IJ “disallow[ed]” a letter from her former employer corroborating her conti nuous physical presence in the country since 2004.
But Andrade concedes that she did not introduce this evidence according to “the filing deadlines that were established by the [IJ] previously.” And s he cites no authority suggesting that the enforcement of filing deadlines deprived her of due
process. See 8 C.F.R. § 1003.31(h) (“If an application or document is not filed within the time set by the immigration judge, the opportunity to file that application or document shall be deemed waived.”). At most, she contends that it was unfair to prohibit the introduction of her untime ly evidence because the IJ a llowed the government to rely on “impeachment evidence” that was not disclosed before the filing deadline

. I mpeachment evidence , however, is not subject to the filing
deadline. Immig. Ct. Prac

. Manual ch. 3.1(b)(ii)(A). 1
In sum, Andrade raises no colorable legal or constitutional claim related to the denial of her application for cancellation of removal. Thus, we lack jurisdiction over the petition. 8 U.S.C. § 1252(a)(2)(B), (D).
PETITION DISMISSED.

1 Andrade otherwise fails to establish that the IJ’s reliance on th is impeachment evidence was impr oper, much less that it deprived her of due process or resulted in prejudice

. See Espinoza v. INS , 45 F.3d 308, 310 (9th Cir. 1995) (“[A] deportation hearing is an administrative proceeding not bound by strict rules of evidence

. . . .”).