                                                                            FILED
                              NOT FOR PUBLICATION                            JAN 25 2011

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




                             FOR THE NINTH CIRCUIT



LEONEL PENA-SANCHEZ,                             No. 06-72049

               Petitioner,                       Agency No. A075-530-186

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

               Respondent.



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

                             Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Leonel Pena-Sanchez, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

Immigration Judge’s (“IJ”) removal order. Our jurisdiction is governed by



          *
             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).
8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512

F.3d 1163, 1166 (9th Cir. 2008), and we dismiss in part, deny in part, and grant in

part the petition for review.

      We lack jurisdiction to review the BIA’s discretionary determination that

Pena-Sanchez failed to show exceptional and extremely unusual hardship. See

Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). We are not

persuaded that Pena-Sanchez’s removal results in the deprivation of his children’s

rights. See Urbano De Malaluan v. INS, 577 F.2d 589, 594 (9th Cir. 1978).

      We reject Pena-Sanchez’s contention the BIA engaged in impermissible

fact-finding. See 8 C.F.R. § 1003.1(d)(3)(ii) (BIA may review questions of law,

discretion, and judgement de novo).

      The agency declined to entertain Pena-Sanchez’s motion to reopen to

consider additional evidence in support of his cancellation of removal application

without the benefit of our decision in Fernandes v. Holder, 619 F.3d 1069, 1074

(9th Cir. 2010) (“[T]he IJ’s jurisdiction on remand from the BIA is limited only

when the BIA expressly retains jurisdiction and qualifies or limits the scope of the

remand to a specific purpose.”). See also Matter of M-D-, 224 I. & N. Dec. 138,

141-42 (BIA 2007) (IJ has authority to consider additional evidence on remand “if

it is material, was not previously available, and could not have been discovered or


                                          2                                    06-72049
presented at the former hearing.”). We therefore remand for proceedings

consistent with this disposition.

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part; and

GRANTED in part; REMANDED.




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