                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 30 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARVIN ANTONIO FRANCO-                           Nos. 11-72875
BARDALES, AKA Marvin Antonio                          12-71299
Franco,
                                                 A-071-586-661
              Petitioner,
                                                 MEMORANDUM*
  v.

ERIC HOLDER, Attorney General,

              Defendant,


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

                      Argued and Submitted February 2, 2015
                               Seattle Washington

Before: BEA and MURGUIA, Circuit Judges, and KOBAYASHI, District Judge.**



       Marvin Antonio Franco-Bardales, a Guatemalan man living in the United

States without status since 1983, petitions this Court for review of the Board of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
Immigration Appeals’ (“BIA”) August 29, 2011 decision affirming the

Immigration Judge’s (“IJ”) denial of his applications for adjustment of status and

waiver of inadmissibility, pursuant to 8 U.S.C. § 1182(h), and the BIA’s March 27,

2012 decision denying his motion to reopen. We deny the petitions, which were

consolidated for this proceeding.

      Franco-Bardales concedes that he is removable. This Court has jurisdiction

to review only constitutional claims and questions of law related to the BIA’s

denial of a waiver of inadmissibility. Corpuz v. Holder, 697 F.3d 807, 810 (9th

Cir. 2012) (citing 8 U.S.C. § 1252(a)(2)(C)-(D)); see also Rivera-Peraza v. Holder,

684 F.3d 906, 908 (9th Cir. 2012) (“Admissibility is a necessary precondition for

adjustment of status.”). Where the BIA relies on the IJ’s reasoning, we look to the

IJ’s decision “as a guide to what lay behind the BIA’s conclusion.” Bingxu Jin v.

Holder, 748 F.3d 959, 964 (9th Cir. 2014) (citation and internal quotation marks

omitted).

      The IJ did not commit legal error in applying Matter of Jean (In re Jean), 23

I. & N. Dec. 373 (BIA 2002), and determining that Franco-Bardales’s conviction

for delaying medical attention to a child in his care was a violent or dangerous

crime. See Torres-Valdivias v. Holder, 766 F.3d 1106, 1108 (9th Cir. 2014) (“the

ultimate determination of whether a crime was violent or dangerous under Matter


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of Jean is discretionary and therefore unreviewable under 8 U.S.C.

§ 1252(a)(2)(B)”). Nor did she commit legal error in concluding that Franco-

Bardales failed to provide sufficient evidence that his removal would result in

hardship. This Court does not have jurisdiction to review the discretionary factual

decision that Franco-Bardales failed to prove hardship. See 8

U.S.C. § 1252(a)(2)(B); Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012).

      Franco-Bardales, however, argues that the IJ denied him due process by

impermissibly predetermining at his adjustment of status hearing that the

heightened hardship standard, for a violent or dangerous crime, applied. Compare

8 U.S.C. § 1182(h)(1)(B) (general “extreme hardship” standard), with 8 C.F.R. §

1212.7(d) (“exceptional and extremely unusual hardship” standard for violent or

dangerous crimes). Although the IJ stated prior to Franco-Bardales’s testimony

that she would be guided by the higher standard, Franco-Bardales did thereafter

testify, and the IJ considered his testimony and the record in reaching her decision.

Further, in her written decision, the IJ concluded that Franco-Bardales did not meet

the lower hardship test, let alone the higher one. This Court cannot find that the

proceeding before the IJ was “so fundamentally unfair that [Franco-Bardales] was

prevented from reasonably presenting his case.” See Colmenar v. I.N.S., 210 F.3d

967, 971 (9th Cir. 2000) (citation and internal quotation marks omitted).


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      Last, we find that the evidence Franco-Bardales offered with his motion to

reopen was largely cumulative and, to the extent it was not, the BIA considered

and rejected it. Since there was no abuse of discretion, see Garcia v. Holder, 621

F.3d 906, 912 (9th Cir. 2010), the Court denies Franco-Bardales’s motion to

reopen.

      DENIED.




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