NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS ESCOBAR MAZARIEGOS, 

AKA Bulmaro Salazar Lopez, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-72948 

Agency No. A200-700-008 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 7, 2023**

Phoenix, Arizona

Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.

Petitioner Douglas Escobar Mazariegos, a native and citizen of Guatemala, 

petitions for review of a Board of Immigration Appeals’ (“BIA”) decision 

affirming an immigration judge’s (“IJ”) dismissal of his request for cancellation of 

* 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).

FILED

FEB 9 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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removal. In the context of cancellation, we lack jurisdiction to review the IJ’s or 

BIA’s denials of discretionary relief, 8 U.S.C. § 1252(a)(2)(B)(i), but we retain 

jurisdiction to review de novo questions of law, 8 U.S.C. § 1252(a)(2)(D); Ridore 

v. Holder, 696 F.3d 907, 911 (9th Cir. 2012). We dismiss in part and deny in part. 

1. To the extent that Petitioner argues that the BIA applied the wrong legal 

standard for evaluating “extreme and unusual hardship,” we have jurisdiction, 

Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir. 2009), and we disagree. 

The BIA adopted the IJ’s reasoning and explained why it agreed with her decision. 

The IJ evaluated the hardship to Petitioner’s children, both individually and in the 

aggregate, considering numerous factors. Matter of Monreal-Aguinaga, 23 I&N 

Dec. 56, 63–64 (BIA 2001); Matter of Andazola-Rivas, 23 I&N Dec. 319, 323–24 

(BIA 2002); Matter of Gonzalez Recinas, 23 I&N Dec. 467, 468–73 (BIA 2002). 

The BIA’s decision noted that those factors included “relevant medical and 

educational concerns, country conditions, and the resulting emotional and financial 

consequences of removal.” 

2. To the extent that Petitioner argues that the BIA erred by incorrectly 

applying a correct legal standard to undisputed facts, we adopt the approach from 

De La Rosa-Rodriguez v. Garland, 49 F.4th 1282 (9th Cir. 2022). There, we held 

that “we can assume statutory jurisdiction arguendo” over whether the BIA 

properly applied the legal standard for “extreme and unusual hardship” because 
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“the jurisdictional issue is complex, but the claim asserted clearly lacks merit.” 49 

F.4th at 1291 (emphasis omitted). As there, we reject the claim on the merits. 

Petitioner claims exceptional and extremely unusual hardship to his children, but 

the record shows that Petitioner’s parents live in Guatemala, that his children can 

speak Spanish and read and write some Spanish, and that none of his children 

exhibited a physical or mental disability.

3. To the extent that Petitioner argues that the IJ abused his discretion by 

failing to accept late evidence, we have jurisdiction, and reject that claim. See

Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013) (holding that we review for 

abuse of discretion an IJ’s decision to deem documents waived as untimely under 8 

C.F.R. § 1003.31, which applies to “the filing of all documents . . . before the 

immigration courts”). The IJ set a reasonable deadline according to the guidelines 

set forth in Chapter 3.1(b)(ii)(A) of the Immigration Court Practice Manual. See 8 

C.F.R. § 1003.31(c) (“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.”). Petitioner knew of the deadline, waited until the eve of the 

hearing to file his additional evidence, and then filed using an alias the court did 

not recognize. The IJ did not err by deciding that accepting the late-filed evidence 

would prejudice the government.
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4. We dismiss Petitioner’s constitutional claims because they are not 

colorable. “[A]bsent a colorable legal or constitutional claim, we lack jurisdiction 

to review the BIA’s discretionary determination that [Petitioner] failed to prove 

that removal would result in exceptional and extremely unusual hardship” to his 

children, who are United States citizens. Vilchiz-Soto v. Holder, 688 F.3d 642, 

644 (9th Cir. 2012). First, Petitioner claims that his children were deprived of a 

right to counsel. That claim fails because a petitioner’s family members do not 

have standing to intervene in pending removal proceedings. Agosto v. Boyd, 443 

F.2d 917, 917 (9th Cir. 1971) (per curiam). Next, Petitioner argues that the IJ’s 

exclusion of exhibits and rejection of his witness list as untimely1 violated his due 

process rights. That claim fails because Petitioner neglected to meet the reasonable 

submission deadlines, which the original IJ had set pursuant to his discretion. 

8 C.F.R. § 1003.31(h). Finally, Petitioner asserts that the substitute IJ erred when 

she rendered a decision based only on her review of the record and rushed her 

determination to meet an agency-imposed quota for decisions. Both of those 

claims fail because the record does not support the assertion that the IJ rushed her 

determination in this case. Rather, Petitioner simply recasts abuse-of-discretion 

arguments as constitutional claims. See Torres-Aguilar v. INS, 246 F.3d 1267, 

1 The IJ’s decision does not explicitly state that Exhibit 13 was rejected on 

timeliness grounds. Nonetheless, we assume that the IJ rejected the exhibit on 

those grounds given the parties’ arguments and the evidence in the record.
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1271 (9th Cir. 2001) (holding that “a petitioner may not create the jurisdiction that 

Congress chose to remove simply by cloaking an abuse of discretion argument in 

constitutional garb”). 

5. An incomplete initial Notice to Appear (“NTA”) did not divest the IJ of 

jurisdiction. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1191 (9th 

Cir. 2022) (en banc) (holding that a failure to include the time and date on an NTA 

does not strip the IJ of jurisdiction), cert. denied, No. 22-6281, 2023 WL 350056

(U.S. Jan. 23, 2023). Thus, Petitioner did not continue to accrue physical presence 

for the purpose of eligibility for cancellation. 

PETITION DISMISSED IN PART AND DENIED IN PART.