NOT FOR PUBLICATION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 an 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 APPEALS
2 21-70252 

dismissal of an appeal of a decision by an immigration judge (IJ) denying

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 discretionaryrelief 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 cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B) (barring jurisdiction

over § 1229b judgments). But this jurisdictional bar should not “be construed as 

precluding review of constitutional claims or questions of law.” 8 U.S.C. 

§ 1252(a)(2)(D). Reviewing 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 facts 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. Continuous presence is also a 

factual determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006), 
3 21-70252 

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 

her of due process. Though we have jurisdiction to review constitutional 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 United States v. Sarkisian, 197 F.3d 966, 

983 (9th Cir. 1999)). 

Andrade argues that the IJ acted as a “partisan adjudicator.” Yet Andrade 

only points 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 establish 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 Cir. 1986)). 

The IJ’s mild admonishment—just before the IJ found in Andrade’s favor on the 
4 21-70252 

issue being discussed—falls far short of this standard. 

Andrade also complains that the IJ “disallow[ed]” a letter from her former 

employer corroborating her continuous 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 she 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 untimely evidence because the IJ allowed the 

government to rely on “impeachment evidence” that was not disclosed before the 

filing deadline. Impeachment 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 this impeachment 

evidence was improper, 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 . . . .”).