                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 02 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANDRES BARRERA-FLORES,                           No. 08-72999

             Petitioner,                         Agency No. A092-171-581

  v.
                                                 ORDER OF DISMISSAL *
ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted January 11, 2010
                               Seattle, Washington

Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.

       Andres Barrera-Flores (“Barrera-Flores”), a native and citizen of Mexico

who has lawfully resided in the United States since December 1990, petitions for

review of a Board of Immigration Appeals (“BIA”) decision denying his

application for cancellation of removal. We dismiss the petition.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We lack jurisdiction to review the BIA’s discretionary decision to deny his

application for cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i);

Mendez-Castro v. Mukasey, 552 F.3d 975, 980–81 (9th Cir. 2009). While we

retain jurisdiction to review “colorable” constitutional claims, “a petitioner may

not create the jurisdiction that Congress chose to remove simply by cloaking an

abuse of discretion argument in constitutional garb . . . . To determine whether we

have jurisdiction over claims labeled as due process violations, we must look

beyond the label.” Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).

      We have held that a petitioner did not state a colorable constitutional

challenge when she claimed “that the IJ denied her right to due process by

misapplying the facts of her case to the applicable law.” Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). Barrera-Flores contends that “the

BIA and the IJ before it, misappl[ied] the legally required future oriented analysis

for hardship,” that “the Agency . . . did not properly weigh the evidence,” and that

“[b]oth the BIA and the IJ incorrectly applied the hardship standard.”

      Our review of the record convinces us that we lack jurisdiction because

Barrera-Flores has merely labeled an abuse of discretion challenge to the

discretionary hardship determination as a due process violation.

      PETITION DISMISSED.


                                          2
