NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUCIANO URIARTE, 

Petitioner, 

 v. 

JEFFERSON B. SESSIONS III, Attorney 

General, 

Respondent.

No. 14-70586 

Agency No. A076-607-998 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 11, 2017**

Pasadena, California

Before: FARRIS, CALLAHAN, and OWENS, Circuit Judges.

Luciano Uriarte, a native and citizen of Mexico, petitions for review of the 

Board of Immigration Appeals’ decision dismissing his appeal of an Immigration 

Judge’s (“IJ”) decision finding him removable under 8 U.S.C. § 1227(a)(1)(A) for, 

inter alia, making a material misrepresentation, and denying his application for a 

 

* 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

AUG 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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discretionary waiver of deportability under 8 U.S.C. § 1227(a)(1)(H). We deny the 

petition in part and dismiss in part.

1. Substantial evidence supports the agency’s determination that the 

Department of Homeland Security (“DHS”) provided clear and convincing 

evidence Uriarte was removable under 8 U.S.C. § 1227(a)(1)(A). See Nakamoto v. 

Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004). Uriarte misrepresented material facts 

by repeatedly failing to disclose his 1989 marriage in Mexico, including on his 

1997 California marriage certificate, his immigrant visa petition, his sworn 

statement to United States Citizenship and Immigration Services, and his 

application for adjustment of status. 

2. We review de novo Uriarte’s claim that the IJ violated his due process 

rights by failing to act as a neutral arbiter. See Colmenar v. INS, 210 F.3d 967, 971 

(9th Cir. 2000). Uriarte’s claim is without merit. Contrary to Uriarte’s contention, 

the IJ did not insist that DHS file marriage fraud charges against him and said 

nothing to indicate she had prejudged the case. Likewise, Uriarte’s due process 

rights were not violated by the IJ’s decision to move forward with a hearing on the 

merits of his waiver application under 8 U.S.C. § 1227(a)(1)(H), rather than simply 

granting relief when DHS initially indicated its non-opposition. Cf. Tadevosyan 

v. Holder, 743 F.3d 1250, 1253 (9th Cir. 2014) (agency may not deny relief based 

solely on DHS’s opposition). The record demonstrates Uriarte received a full and 
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fair hearing of his claims and a reasonable opportunity to present evidence on his 

behalf. See Lianhua Jiang v. Holder, 754 F.3d 733, 741 (9th Cir. 2014). 

3. Absent a colorable constitutional or legal claim, we lack jurisdiction to 

review the agency’s discretionary denial of Uriarte’s application for waiver of 

removal. See 8 U.S.C. §§ 1252(a)(2)(B)(ii), (a)(2)(D); Mendez-Castro v. Mukasey, 

552 F.3d 975, 978 (9th Cir. 2009). Uriarte’s constitutional claims are not 

colorable, therefore we dismiss that portion of his petition seeking review of the 

agency’s discretionary determination under 8 U.S.C. § 1227(a)(1)(H).

PETITION DENIED IN PART AND DISMISSED IN PART.