                                                                           FILED
                               NOT FOR PUBLICATION                          SEP 17 2012

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




                               FOR THE NINTH CIRCUIT



HUNG NGOC HOANG, a.k.a. Nghia Van                  No. 10-73133
Le; KIM HUE THI AU, a.k.a. Minh Thien
Thi Nguyen,                                        Agency Nos. A098-251-990
                                                               A098-251-991
               Petitioners,

  v.
                                                   MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                              Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Hung Ngoc Hoang and Kim Hue Thi Au, natives and citizens of Vietnam,

petition for review of the Board of Immigration Appeals’ (“BIA”) order sustaining

the government’s appeal from an immigration judge’s (“IJ”) decision granting their


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
applications for a waiver under 8 U.S.C. § 1182(i). Our jurisdiction is governed by

8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.

       We lack jurisdiction to review the BIA’s denial of Hoang’s application for

discretionary relief under 8 U.S.C. § 1182(i). See 8 U.S.C. §§ 1182(i)(2),

1252(a)(2)(B)(i); Corona-Mendez v. Holder, 593 F.3d 1143, 1146 (9th Cir. 2010).

To the extent Hoang argues that the BIA violated his constitutional rights by

denying his application for a waiver under 8 U.S.C. § 1182(i), Hoang has not

shown that he is similarly situated to Huynh. See Dillingham v. INS, 267 F.3d 996,

1007 (9th Cir. 2001) (“In order to succeed on his [equal protection] challenge, the

petitioner must establish that his treatment differed from that of similarly situated

persons.”)

       In their opening brief, petitioners fail to raise, and therefore have waived,

any challenge to the BIA’s denial of Au’s application for relief. See Rizk v.

Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (a petitioner waives an issue by

failing to raise it in the opening brief).

       PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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