                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 24 2010

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




                             FOR THE NINTH CIRCUIT



 MARTHA GABRIELA HERNANDEZ-                      No. 07-73501
 GONZALEZ, aka Cynthia Pulgarin,
                                                 Agency No. A079-632-817
               Petitioner,

   v.                                            MEMORANDUM *

 ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Martha Gabriela Hernandez-Gonzalez, a native and citizen of Mexico,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order, on

remand from this Court, denying her motion to reconsider and affirming its

          *
             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).

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dismissal of her appeal from an immigration judge’s (“IJ”) denial of her

application for adjustment of status. Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review de novo questions of law and constitutional claims.

Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007). We grant in part,

dismiss in part, deny in part, and remand the petition for review.

       The BIA failed to address Hernandez-Gonzalez’s contention, raised in her

appeal brief to the BIA, that the IJ violated due process by not allowing her to

submit a written response to the government’s untimely filed motion to pretermit

and additional charge of removability. We remand for the BIA consider this claim

in the first instance. Id.

       The BIA properly concluded that Hernandez-Gonzalez waived her

application for cancellation of removal where she failed to file it within the time

limit set by the IJ. 8 C.F.R. § 1003.31(c)(authorizing the IJ to set filing deadlines

and to deem waived any application not filed by the deadline).

       We lack jurisdiction to review the agency’s discretionary denial of

Hernandez-Gonzalez’s application for adjustment of status. See 8 U.S.C.

§ 1252(a)(2)(B)(i); Hosseini v. Gonzales, 471 F.3d 953, 956-57 (9th Cir. 2006).

We also lack jurisdiction to review her challenge to the agency’s denial of her




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application for voluntary departure because she failed to exhaust this issue before

the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

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

       PETITION FOR REVIEW GRANTED in part; DENIED in part;

DISMISSED in part; REMANDED.




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